Split (1)

train · 31.2k rows

id int64	name string	name_abbreviation string	decision_date string	docket_number string	court string	casebody string	judge1 string	judge2 string	judge3 string	exactly_three_caps int64	extra_judges string	judge_designations string	opinions_count int64	dissent_count int64	concurrence_count int64	other_count int64	volume null	resource_url string	precedential_status string	010combined_count int64	020lead_count int64	030concurrence_count int64	035concurrenceinpart_count int64	040dissent_count int64	year int64	month int64	messages list
4,580,418	EMPLOYERS PREFERRED INSURANCE COMPANY, a Florida Corporation, Plaintiff - Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecticut Corporation, Defendant - Appellant.	Employers Preferred Ins. Co. v. Hartford Accident & Indemnity	2019-01-10	17-3355	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3355\n ___________________________\n\n Employers Preferred Insurance Company, a Florida Corporation,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\n Hartford Accident and Indemnity Company, a Connecticut Corporation,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - Cape Girardeau\n ____________\n\n Submitted: September 28, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Hartford Accident and Indemnity Company appeals the district court’s1 grant\nof summary judgment in favor of Employers Preferred Insurance Company.\nEmployers filed this action for declaratory judgment to clarify whether Hartford had\n\n 1\n The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the\nEastern District of Missouri.\n\fa duty to pay half of the expenses related to an underlying workers’ compensation\nclaim. We conclude that Hartford’s purported cancellation of an insurance policy,\nafter a workers’ compensation claim had arisen, is void under Missouri law. We\ntherefore affirm the judgment.\n\n The appeal arises from a workers’ compensation claim at Hoeckele’s Bakery\nin Perryville, Missouri. Paul and Angela Hoeckele operate the bakery. In the summer\nof 2013, the Hoeckeles set out to purchase the Bakery’s workers’ compensation\ninsurance for the coming year. The Bakery had an existing policy with Hartford, and\nAngela completed a renewal application and paid the premium for a new policy to run\nfrom July 20, 2013, to July 20, 2014. A few weeks later, on August 9, 2013, Paul\nsubmitted an application and paid the premium for a policy from Employers, also to\nrun from July 20, 2013, to July 20, 2014. The reason for this double coverage is\nunclear, but by mid-August 2013, the Bakery had acquired two workers’\ncompensation insurance policies, one from Hartford and one from Employers.\n\n In May 2014, an employee of the Bakery died in an automobile accident in the\ncourse of his employment. Employers covered the legal costs and attorney fees\nassociated with the subsequent workers’ compensation claim and paid benefits to the\nemployee’s widow. Employers then sought equitable contribution from Hartford, on\nthe ground that both policies were in effect on the date of the accident and both\npolicies contained language guaranteeing an equal division of costs in the event of\nconcurrent coverage.\n\n When Hartford declined to contribute, Employers brought this action. The\ndistrict court granted summary judgment for Employers, and we review the judgment\nde novo. As a federal court with jurisdiction based upon diversity of citizenship, we\napply the substantive law of Missouri. See St. Paul Fire & Marine Ins. Co. v. Bldg.\nConstr. Enters., Inc., 526 F.3d 1166, 1168-69 (8th Cir. 2008).\n\n\n\n -2-\n\f Hartford maintains that it does not owe any contribution because the Hoeckeles\nnever intended to carry two policies for the Bakery and terminated the redundant\ncoverage with Hartford. When a Hartford agent told Paul after the accident that the\nHartford policy was active, Paul first expressed confusion, thinking that the premium\nhad never been paid, and then filed a cancellation request on July 8, 2014. Hartford\nretroactively cancelled the policy, effective July 20, 2013, and issued the Hoeckeles\na full refund of their premium. By its telling, Hartford owes no contribution because\nthe Hoeckeles never wanted the Hartford policy in the first place, and Hartford never\nwould have issued the policy if it had known that the Hoeckeles did not want the\ncoverage.\n\n This argument fails because Missouri law bars Hartford from cancelling a\npolicy, and eliminating its duty to defend and indemnify, after an insured has become\nliable for a workers’ compensation claim. The governing statute provides that “[n]o\nsuch contract of insurance shall be cancelled or annulled by any agreement between\nthe insurance company and the assured after the said assured has become responsible\nfor such loss or damage, and any such cancellation or annulment shall be void.” Mo.\nRev. Stat. § 379.195.2. Hartford’s cancellation of the Bakery’s policy on July 8,\n2014, almost two months after the Bakery employee’s fatal accident, is therefore void.\n\n Hartford contends that the statute was designed to protect individuals from\ntheir insurers and is inapplicable in cases where an insurance company seeks\ncontribution from another insurer. The company notes that § 379.195 was part of a\nlarger act designed to facilitate payments of casualty insurance: “An Act to regulate\nthe payment under contracts of casualty insurance occasioned by losses on account\nof bodily injury or death or damage to property, and providing for the manner and\nform of remedy.” The second part of the act, now codified separately, concerned the\nrights of injured parties as judgment creditors to proceed against tortfeasors and their\ninsurers.\n\n\n\n -3-\n\f These arguments do not overcome the clear statutory text, for under Missouri\nlaw, “the primary rule of statutory interpretation is to give effect to legislative intent\nas reflected in the plain language of the statute.” Akins v. Dir. of Revenue, 303\nS.W.3d 563, 565 (Mo. 2010). The plain language of § 379.195.2 makes “void” any\ncancellation of an insurance policy after “loss or damage,” with no exceptions. A\nlegislature’s words sometimes sweep more broadly than the specific purpose that\nmotivated individual legislators, but it is the text, not the intentions, that constitute\nlaw. There is no ambiguity in the text that justifies resort to the statute’s title to\nascertain meaning. Cf. In re Graves, 30 S.W.2d 149, 152 (Mo. 1930). And there is\nno absurdity here that justifies judicial revision of the text; Hartford was paid to\nprovide coverage, and a reasonable legislature might well seek to avoid competing\nefforts to cancel by concurrent insurers.\n\n Hartford also raises an affirmative defense that the Bakery’s purchase of the\nHartford policy was a mutual mistake. “A mutual mistake occurs when both parties,\nat the time of contracting, share a misconception about a basic assumption or vital\nfact upon which they based their bargain.” 27 Richard A. Lord, Williston on\nContracts § 70:107, at 536 (4th ed. 2003). Under Missouri law, when two parties\nmake a mistake about a material aspect of the contract, there is no mutual assent, and\nno real agreement is formed. Fulton v. Bailey, 413 S.W.2d 514, 518 (Mo. 1967).\nCiting Great Atlantic Insurance v. Liberty Mutual Insurance, 576 F. Supp. 561 (E.D.\nMo. 1983), Hartford argues that § 379.195.2 is inapplicable because cancellation of\nthe policy was not based on “a subsequent agreement, but rather on the pre-existing\nagreement and intention of the parties as of the time the policy was issued.” Great\nAtl. Ins., 576 F. Supp. at 565.\n\n Assuming for the sake of analysis that the defense was properly pleaded,\nHartford identifies no mutual mistake during the formation of the insurance contract.\nAngela’s submission of the Hartford application and payment of the premium to\nHartford created a binding contract. Whatever Paul might have believed later when\n\n -4-\n\fhe submitted an application for insurance with Employers could not demonstrate a\nmistake at the time when the Bakery, through Angela, contracted with Hartford.\nUnlike in Great Atlantic Insurance, where a clerical error led the contract to deviate\nfrom the intent of the parties, id. at 564, the Bakery received what it contracted for on\nJuly 17, 2013—a workers’ compensation insurance policy from Hartford. The\nHoeckeles may never have wanted the Bakery to take on double coverage, but the\ncontract with Hartford at most constitutes an administrative misstep by the Hoeckeles,\nnot a mutual mistake under contract law that could avoid the prohibition on\ncancellation under § 379.195.2.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357671/", "author_raw": "COLLOTON, Circuit Judge."}]}	COLLOTON	GRUENDER	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580418/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: EMPLOYERS PREFERRED INSURANCE COMPANY, a Florida Corporation, Plaintiff - Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecticut Corporation, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3355\n ___________________________\n\n Employers Preferred Insurance Company, a Florida Corporation,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\n Hartford Accident and Indemnity Company, a Connecticut Corporation,\n\n lllllllllllllllllllllDefendant - Appellant.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - Cape Girardeau\n ____________\n\n Submitted: September 28, 2018\n Filed: January 10, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Hartford Accident and Indemnity Company appeals the district court’s1 grant\nof summary judgment in favor of Employers Preferred Insurance Company.\nEmployers filed this action for declaratory judgment to clarify whether Hartford had\n\n 1\n The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the\nEastern District of Missouri.\n\fa duty to pay half of the expenses related to an underlying workers’ compensation\nclaim. We conclude that Hartford’s purported cancellation of an insurance policy,\nafter a workers’ compensation claim had arisen, is void under Missouri law. We\ntherefore affirm the judgment.\n\n The appeal arises from a workers’ compensation claim at Hoeckele’s Bakery\nin Perryville, Missouri. Paul and Angela Hoeckele operate the bakery. In the summer\nof 2013, the Hoeckeles set out to purchase the Bakery’s workers’ compensation\ninsurance for the coming year. The Bakery had an existing policy with Hartford, and\nAngela completed a renewal application and paid the premium for a new policy to run\nfrom July 20, 2013, to July 20, 2014. A few weeks later, on August 9, 2013, Paul\nsubmitted an application and paid the premium for a policy from Employers, also to\nrun from July 20, 2013, to July 20, 2014. The reason for this double coverage is\nunclear, but by mid-August 2013, the Bakery had acquired two workers’\ncompensation insurance policies, one from Hartford and one from Employers.\n\n In May 2014, an employee of the Bakery died in an automobile accident in the\ncourse of his employment. Employers covered the legal costs and attorney fees\nassociated with the subsequent workers’ compensation claim and paid benefits to the\nemployee’s widow. Employers then sought equitable contribution from Hartford, on\nthe ground that both policies were in effect on the date of the accident and both\npolicies contained language guaranteeing an equal division of costs in the event of\nconcurrent coverage.\n\n When Hartford declined to contribute, Employers brought this action. The\ndistrict court granted summary judgment for Employers, and we review the judgment\nde novo. As a federal court with jurisdiction based upon diversity of citizenship, we\napply the substantive law of Missouri. See St. Paul Fire & Marine Ins. Co. v. Bldg.\nConstr. Enters., Inc., 526 F.3d 1166, 1168-69 (8th Cir. 2008).\n\n\n\n -2-\n\f Hartford maintains that it does not owe any contribution because the Hoeckeles\nnever intended to carry two policies for the Bakery and terminated the redundant\ncoverage with Hartford. When a Hartford agent told Paul after the accident that the\nHartford policy was active, Paul first expressed confusion, thinking that the premium\nhad never been paid, and then filed a cancellation request on July 8, 2014. Hartford\nretroactively cancelled the policy, effective July 20, 2013, and issued the Hoeckeles\na full refund of their premium. By its telling, Hartford owes no contribution because\nthe Hoeckeles never wanted the Hartford policy in the first place, and Hartford never\nwould have issued the policy if it had known that the Hoeckeles did not want the\ncoverage.\n\n This argument fails because Missouri law bars Hartford from cancelling a\npolicy, and eliminating its duty to defend and indemnify, after an insured has become\nliable for a workers’ compensation claim. The governing statute provides that “[n]o\nsuch contract of insurance shall be cancelled or annulled by any agreement between\nthe insurance company and the assured after the said assured has become responsible\nfor such loss or damage, and any such cancellation or annulment shall be void.” Mo.\nRev. Stat. § 379.195.2. Hartford’s cancellation of the Bakery’s policy on July 8,\n2014, almost two months after the Bakery employee’s fatal accident, is therefore void.\n\n Hartford contends that the statute was designed to protect individuals from\ntheir insurers and is inapplicable in cases where an insurance company seeks\ncontribution from another insurer. The company notes that § 379.195 was part of a\nlarger act designed to facilitate payments of casualty insurance: “An Act to regulate\nthe payment under contracts of casualty insurance occasioned by losses on account\nof bodily injury or death or damage to property, and providing for the manner and\nform of remedy.” The second part of the act, now codified separately, concerned the\nrights of injured parties as judgment creditors to proceed against tortfeasors and their\ninsurers.\n\n\n\n -3-\n\f These arguments do not overcome the clear statutory text, for under Missouri\nlaw, “the primary rule of statutory interpretation is to give effect to legislative intent\nas reflected in the plain language of the statute.” Akins v. Dir. of Revenue, 303\nS.W.3d 563, 565 (Mo. 2010). The plain language of § 379.195.2 makes “void” any\ncancellation of an insurance policy after “loss or damage,” with no exceptions. A\nlegislature’s words sometimes sweep more broadly than the specific purpose that\nmotivated individual legislators, but it is the text, not the intentions, that constitute\nlaw. There is no ambiguity in the text that justifies resort to the statute’s title to\nascertain meaning. Cf. In re Graves, 30 S.W.2d 149, 152 (Mo. 1930). And there is\nno absurdity here that justifies judicial revision of the text; Hartford was paid to\nprovide coverage, and a reasonable legislature might well seek to avoid competing\nefforts to cancel by concurrent insurers.\n\n Hartford also raises an affirmative defense that the Bakery’s purchase of the\nHartford policy was a mutual mistake. “A mutual mistake occurs when both parties,\nat the time of contracting, share a misconception about a basic assumption or vital\nfact upon which they based their bargain.” 27 Richard A. Lord, Williston on\nContracts § 70:107, at 536 (4th ed. 2003). Under Missouri law, when two parties\nmake a mistake about a material aspect of the contract, there is no mutual assent, and\nno real agreement is formed. Fulton v. Bailey, 413 S.W.2d 514, 518 (Mo. 1967).\nCiting Great Atlantic Insurance v. Liberty Mutual Insurance, 576 F. Supp. 561 (E.D.\nMo. 1983), Hartford argues that § 379.195.2 is inapplicable because cancellation of\nthe policy was not based on “a subsequent agreement, but rather on the pre-existing\nagreement and intention of the parties as of the time the policy was issued.” Great\nAtl. Ins., 576 F. Supp. at 565.\n\n Assuming for the sake of analysis that the defense was properly pleaded,\nHartford identifies no mutual mistake during the formation of the insurance contract.\nAngela’s submission of the Hartford application and payment of the premium to\nHartford created a binding contract. Whatever Paul might have believed later when\n\n -4-\n\fhe submitted an application for insurance with Employers could not demonstrate a\nmistake at the time when the Bakery, through Angela, contracted with Hartford.\nUnlike in Great Atlantic Insurance, where a clerical error led the contract to deviate\nfrom the intent of the parties, id. at 564, the Bakery received what it contracted for on\nJuly 17, 2013—a workers’ compensation insurance policy from Hartford. The\nHoeckeles may never have wanted the Bakery to take on double coverage, but the\ncontract with Hartford at most constitutes an administrative misstep by the Hoeckeles,\nnot a mutual mistake under contract law that could avoid the prohibition on\ncancellation under § 379.195.2.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -5-\n[END_CASE]", "role": "user" } ]
4,580,825	UNITED STATES of America, Plaintiff - Appellee v. Matthew St. PIERRE, Defendant - Appellant	United States v. Matthew St. Pierre	2019-01-11	17-3657	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3657\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Matthew St. Pierre\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: October 15, 2018\n Filed: January 11, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Matthew St. Pierre pled guilty to aiding and abetting second-degree murder in\nviolation of 18 U.S.C. §§ 2, 1111, and 1153. Pursuant to a plea agreement, the\ngovernment recommended a United States Sentencing Guidelines range of 292-365\n\nmonths imprisonment. The district court1 rejected the plea agreement’s recommended\nsentencing range, adopted a higher range, and sentenced St. Pierre to 480 months\nimprisonment. St. Pierre appeals, contending the government breached the plea\nagreement and the district court committed procedural and substantive error in\ncalculating his sentence. Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28\nU.S.C. § 1291, we conclude the government did not breach the plea agreement.\nTherefore, the appeal waiver is enforceable with respect to the other claims raised\nhere, and we dismiss the appeal.\n\n G.K.I.W., a five-year-old girl, lived with her mother, Desarae Makes Him First,\nand St. Pierre, her mother’s domestic partner, on the Standing Rock Sioux Indian\nReservation. On Wednesday, October 5, 2016, staff at G.K.I.W.’s elementary school\nnoticed the child had bruising on her face, including her cheek and forehead. When\nasked what happened, G.K.I.W. said St. Pierre hit her while he was drunk. She began\ncrying when staff asked if she had been hurt anywhere else. A school nurse found\nadditional bruises on G.K.I.W.’s collarbone, and staff alerted the South Dakota\nDepartment of Social Services Child Protection Services (DSS) and the Standing\nRock Sioux Tribe Child Protection Services (SRST-CPS). A DSS social worker\nexamined G.K.I.W. and found even more bruising on the child’s stomach. Though\nSRST-CPS said they would respond to the claim, they did not do so before G.K.I.W.\nreturned home.\n\n The next day, school officials tried to contact SRST-CPS multiple times, but\nSRST-CPS did not return their calls. Eventually, G.K.I.W.’s school called the Fort\nYates Police Department, but once again, no one responded to the call. The school\nofficials were particularly concerned because there would be no school the following\nday (Friday) or the following Monday, and they feared for G.K.I.W.’s safety at home\n\n\n 1\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\nthat long without an investigation. Despite these concerns, G.K.I.W. was allowed to\nreturn home.\n\n When school resumed the following Tuesday, October 11, G.K.I.W. was\nabsent. Her sister said she was sick. School officials again called SRST-CPS and\nagain heard nothing, with the call going directly to voicemail. They also left a\nmessage for DSS. Finally, G.K.I.W.’s school sent its own school resource officer\n(SRO) to conduct a welfare check at G.K.I.W.’s home. The SRO went to Makes Him\nFirst’s address, but Makes Him First refused to let the SRO see G.K.I.W. She said\nthe child became bruised by fighting with her sister and that G.K.I.W. was asleep but\nwould be in school the next day.\n\n However, around 1:30 the following morning, Makes Him First brought\nG.K.I.W. to the hospital. The child was not breathing and was cold to the touch;\nbruises covered most of her body, including large bruises on her chest and thigh.\nDespite attempts to resuscitate G.K.I.W., she died shortly thereafter. Investigators\nlater determined the cause of death to be a tear in the child’s abdomen caused by\nabuse to her torso.\n\n Makes Him First eventually admitted to investigators that she had abused\nG.K.I.W. by hitting her with a shoe and punching her. She initially did not implicate\nSt. Pierre, and St. Pierre denied abusing the child. However, after being indicted for\nthe child’s death, Makes Him First described how St. Pierre abused G.K.I.W. in the\ndays leading up to her death. Makes Him First said that for three nights in a\nrow—Sunday, Monday, and Tuesday—St. Pierre entered G.K.I.W.’s room late at\nnight and abused the child. He accused G.K.I.W. of not sleeping before shining a\nlight in her face and then physically assaulting her by pulling her hair, pushing her\nchest, striking her thigh, and grabbing her neck. G.K.I.W. found the injuries to her\nchest particularly painful, as St. Pierre had already left bruises there by abusing her\nthroughout the week. Makes Him First admitted that on Tuesday, she and St. Pierre\n\n -3-\n\nkept G.K.I.W. home from school because they feared getting into trouble if school\nstaff noticed that G.K.I.W. was covered in bruises. She stated the abuse escalated\nthroughout the week; by Tuesday night, St. Pierre was picking G.K.I.W. up by the\nneck and choking her repeatedly until she blacked out. Makes Him First said she\nbegan crying and begging St. Pierre to stop hurting the child, but he ignored her. At\none point, St. Pierre held G.K.I.W. by the neck and shook her so severely that when\nhe put her back down, she could not stand. G.K.I.W.’s speech then became\nunintelligible, and she began to behave strangely. Makes Him First asked to give the\nchild a bath. St. Pierre poured water onto the child’s face, and Makes Him First\ndemanded they go to the hospital. G.K.I.W. turned pale, and her breathing shallowed.\nShe began to foam at the mouth. Makes Him First attempted to assist the child’s\nbreathing while St. Pierre started the car. On the way to the hospital, St. Pierre told\nMakes Him First that he would not go to prison for her child, and she needed to come\nup with a lie to explain the child’s injuries. Makes Him First explained she initially\nlied to investigators out of her fear of St. Pierre.\n\n When investigators interviewed other household members, they heard\nrepeatedly that St. Pierre had a violent anger problem. In the days before the murder,\none person asked St. Pierre and Makes Him First about G.K.I.W.’s frequent crying,\nand the couple said the child simply woke up that way. Another person had been told\nthat St. Pierre had once pushed G.K.I.W. into a wall. On the day G.K.I.W. died, a\nwitness stated St. Pierre and Makes Him First acted strangely, appearing more\nnervous than sad and whispering to one another. In November 2016, the government\nindicted St. Pierre as Makes Him First’s co-defendant.\n\n St. Pierre eventually pled guilty to aiding and abetting second-degree murder.\nThe plea agreement recommended a sentencing range of 292-365 months\nimprisonment. The parties agreed the base offense level was 38 but agreed to a\ntwo-point enhancement for a vulnerable victim pursuant to United States Sentencing\nCommission, Guidelines Manual, § 3A1.1(b) and a three-point reduction for timely\n\n -4-\n\nacceptance of responsibility pursuant to USSG § 3E1.1, resulting in a total offense\nlevel of 37. They also agreed that St. Pierre’s criminal history category was IV. St.\nPierre waived his right to appeal on most grounds. The plea agreement expressly\nstated that its recommendations were not binding on the district court, and if the\ndistrict court rejected its proposals, St. Pierre could not withdraw his plea. At his\nchange-of-plea hearing, St. Pierre stated he understood that the court would determine\nhis actual advisory Guidelines range and that it was not bound by the plea\nagreement’s recommendation. He further said that he understood his appellate waiver\nwould cover the majority of grounds on which he could raise an appeal.\n\n The presentence investigation report (PSR) prepared for St. Pierre’s sentencing\nhearing recommended a sentencing range of 360 months to life imprisonment. In\narriving at a total offense level of 41, the PSR included an enhancement for\nobstruction of justice pursuant to USSG § 3C1.1, to which St. Pierre objected. The\nprobation officer who wrote the report filed an amended PSR and addendum in\nresponse to St. Pierre’s objections. The addendum defended the obstruction of justice\nenhancement by noting Makes Him First testified that St. Pierre told her to lie about\nwhat happened to G.K.I.W. At the sentencing hearing, the government stated that it\n“adopt[ed]” the amended report and addendum but that it was “not asking the Court\nto go above” the stipulated sentencing range. As outlined in the plea agreement, the\ngovernment asked the district court to grant St. Pierre a three-point reduction for\ntimely acceptance of responsibility and joined in St. Pierre’s motion for a downward\ndeparture or variance to reach the plea agreement’s sentencing range.\n\n The district court declined to follow the plea agreement’s recommendations.\nIt found that St. Pierre’s acceptance of responsibility was not timely and agreed with\nthe PSR addendum that an obstruction of justice enhancement was appropriate. The\ndistrict court stated that the prolonged and severe nature of the abuse against\nG.K.I.W. made this case unlike any it had seen. It adopted the PSR’s recommended\nsentencing range and sentenced St. Pierre to 480 months imprisonment. St. Pierre\n\n -5-\n\nappeals, contending the government breached the plea agreement by adopting the\nPSR addendum and that the district court committed procedural and substantive error\nin deciding his sentence.\n\n We first determine whether the government breached the plea agreement such\nthat St. Pierre may appeal. “We review questions regarding the interpretation and\nenforcement of plea agreements de novo.” United States v. Mosley, 505 F.3d 804,\n808 (8th Cir. 2007). “If the government breached the plea agreement,” St. Pierre may\nproceed with his appeal “despite the appellate waiver.” United States v. Quebedo,\n788 F.3d 768, 775 (8th Cir. 2015). “[I]n determining whether the government has\nfulfilled its obligations under a plea agreement, we look to the agreement’s\nprovisions.” United States v. Kramer, 12 F.3d 130, 131 (8th Cir. 1993) (citing United\nStates v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990)). If the government “actively\nadvocate[s] for an outcome different from the one it had promised” to seek, it\nbreaches the plea agreement. United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir.\n2006). In United States v. Thompson, the parties’ plea agreement applied a specific\nGuidelines section for possession of a firearm, but after the PSR used the more severe\nfelonious assault section, the prosecutor accepted its recommendation out of “an\nobligation to advise the Court of what the facts are.” 403 F.3d 1037, 1039 (8th Cir.\n2005). Without being prompted by the court, the prosecutor argued that the facts to\nwhich Thompson had stipulated supported felonious assault. Id. at 1038, 1040. The\ncourt held that the prosecutor had, “[i]n essence,” argued against the plea agreement\nprovision and therefore breached the agreement. Id. at 1040-41.\n\n In St. Pierre’s plea agreement, the government agreed to recommend a sentence\nof 292-365 months imprisonment. The agreement made no mention of an obstruction\nof justice enhancement and did not require that the government join in any of St.\nPierre’s objections to the PSR. At sentencing, the government repeatedly requested\na sentence within the agreed-upon range. And, unlike in Thompson, when St. Pierre\nobjected to the obstruction-of-justice enhancement in the PSR, the government did\n\n -6-\n\nnot argue that the facts supported the enhancement; it merely said “there is evidence\nthere” and immediately emphasized its request for a downward departure or variance\nto reach the agreed-upon sentencing range. To be sure, as St. Pierre suggests, the\ngovernment could have simply not addressed the obstruction enhancement at all, and\nthe government’s statement that it “adopt[ed]” the amended PSR and addendum\nseems, on its face, to indicate agreement with it. However, viewed in context, the\ngovernment’s chosen course did not constitute breach. Rather, the government\nadvocated for the 292-365 month sentencing range outlined in the plea agreement no\nless than six times at sentencing, including in its discussion of the PSR addendum.\nBecause the government promised to recommend a sentence within the agreed-upon\nGuidelines range and consistently did so, it did not breach the plea agreement.\n\n Having found the plea agreement enforceable, we turn to whether St. Pierre\nwaived his right to appeal. “Whether a valid waiver of appellate rights occurred is\na question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791,\n795 (8th Cir. 2009). “When reviewing a purported waiver, we must confirm that the\nappeal falls within the scope of the waiver and that both the waiver and the plea\nagreement were entered into knowingly and voluntarily.” United States v. Andis, 333\nF.3d 886, 889-90 (8th Cir. 2003) (en banc). We will not “enforce an otherwise valid\nwaiver if to do so would result in a miscarriage of justice.” Id. at 891.\n\n First, St. Pierre’s appeal must fall within the scope of his waiver. Under the\nplea agreement, St. Pierre waived “his right to appeal any non-jurisdictional issues.”\nThe parties excluded from the waiver instances in which the district court departed\nor varied upward. Because St. Pierre’s appeal does not raise a jurisdictional issue and\nthe district court did not impose an upward departure or upward variance from the\n360 months to life imprisonment sentencing range it adopted, this appeal falls within\nthe scope of the waiver.\n\n\n\n\n -7-\n\n Second, the waiver and plea agreement must have been entered into knowingly\nand voluntarily. “[A] district court can help ensure that a plea agreement and\ncorresponding waiver are entered into knowingly and voluntarily [by] properly\nquestion[ing] a defendant about his or her decision to enter that agreement and waive\nthe right to appeal.” Id. at 890-91. Here, the district court did exactly that. At St.\nPierre’s change-of-plea hearing, it cautioned, “[I]f you don’t like what I do in your\ncase . . ., you have no place to go. You cannot go to the Court of Appeals in St.\nLouis, Missouri, and you cannot go to the United States Supreme Court.” While\nnoting that St. Pierre could still appeal a sentence that varied or departed upward, the\ndistrict court emphasized that that was an “exception” to St. Pierre’s broad appellate\nwaiver, saying, “[I]f I make a mistake in your case and you don’t like it, you are stuck\nwith it. And so you are giving up very valuable rights. Do you understand all of that,\nsir?” St. Pierre responded, “Yes, sir.” The district court then verified that no one had\nthreatened or coerced St. Pierre into pleading guilty and that St. Pierre would enter\nhis plea “voluntarily on [his] part and of [his] own free will.” Thus, the record\nindicates that St. Pierre entered into the plea agreement knowingly and voluntarily.\n\n Finally, enforcing the waiver must not result in a miscarriage of justice. “[T]his\nexception is a narrow one,” principally allowing the appeal of illegal sentences that\nare greater than the maximum statutory penalty. Id. at 891-92. In contrast, “an\nallegation that the sentencing judge misapplied the Sentencing Guidelines or abused\nhis or her discretion is not subject to appeal in the face of a valid appeal waiver.” Id.\nat 892. Because St. Pierre’s appeal is grounded in alleged errors by the district court\nin applying the Sentencing Guidelines, no miscarriage of justice occurs in enforcing\nthe appellate waiver. Therefore, the waiver is valid and enforceable.\n\n Even if we considered the merits of St. Pierre’s arguments alleging procedural\nand substantive error, we would affirm the sentence of the district court. See United\nStates v. Cook, 252 F. App’x 114, 115 (8th Cir. 2007) (per curiam). When reviewing\nthe sentence of a district court, we first affirm the absence of significant procedural\n\n -8-\n\nerror, such as failing to consider the 18 U.S.C. § 3553(a) factors. Gall v. United\nStates, 552 U.S. 38, 51 (2007). This does not require “‘robotic incantations’ that each\nstatutory factor has been considered.” United States v. Lamoreaux, 422 F.3d 750,\n756 (8th Cir. 2005) (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir.\n2005)). Rather, “all that is generally required to satisfy the appellate court is evidence\nthat the district court was aware of the relevant factors.” United States v. Perkins,\n526 F.3d 1107, 1110 (8th Cir. 2008).\n\n St. Pierre contends that the district court committed procedural error by failing\nto consider the disparity between his sentence and the sentences imposed on similar\ndefendants. However, the district court explicitly discussed similar cases cited by St.\nPierre and described St. Pierre’s case as “far from” those examples, saying, “I have\nnever seen such a case as this in the 22-plus years I have sat on the bench, the cruelty\nday in and day out.” Because the district court appropriately considered the\nsentencing factors, it did not commit significant procedural error.\n\n After confirming the absence of procedural error, we examine the substantive\nreasonableness of the sentence, using a “deferential abuse-of-discretion standard.”\nGall, 552 U.S. at 41, 51. A district court abuses its discretion only if it “fails to\nconsider a relevant factor that should have received significant weight;” “gives\nsignificant weight to an improper or irrelevant factor;” or “commits a clear error of\njudgment” in weighing the proper factors. United States v. Feemster, 572 F.3d 455,\n461 (8th Cir. 2009) (en banc) (quoting United States v. Kane, 552 F.3d 748, 752 (8th\nCir. 2009)). A sentence within the Guidelines range is presumptively reasonable, and\n“it will be the unusual case when we reverse a district court sentence—whether\nwithin, above, or below the applicable Guidelines range—as substantively\nunreasonable.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d 1089, 1090\n(D.C. Cir. 2008)). The “district court has wide latitude to weigh the § 3553(a) factors\nin each case and assign some factors greater weight than others in determining an\nappropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009).\n\n -9-\n\n Here, St. Pierre’s sentence was within the Guidelines range calculated by the\ndistrict court and is presumptively reasonable. The district court clearly considered\nsentence disparity, and it had “wide latitude” to assign great weight to the\ncircumstances of the case and to emphasize the abuse G.K.I.W. had suffered. Id. at\n379. Therefore, the district court did not abuse its discretion in imposing St. Pierre’s\nsentence, and we would affirm the district court’s judgment even absent the appellate\nwaiver.\n\n Because the government did not breach the plea agreement and St. Pierre\nwaived his ability to appeal on these grounds, we dismiss the appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358078/", "author_raw": "SHEPHERD, Circuit Judge."}, {"author": "STRAS, Circuit Judge, concurring", "type": "concurrence", "text": "STRAS, Circuit Judge, concurring in part and concurring in the judgment.\n\n I agree with the court’s explanation of why St. Pierre’s appeal waiver requires\nus to dismiss his appeal, but I would end the opinion there. Once we dismiss St.\nPierre’s appeal, there is nothing left to do. To proceed further and address the\nunderlying merits, as the court does, both defeats the appeal waiver and is at odds\nwith the judgment, which is to dismiss rather than affirm. Accordingly, I join the\ncourt’s opinion except its unnecessary discussion of the merits of St. Pierre’s appeal.\n ______________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358078/", "author_raw": "STRAS, Circuit Judge, concurring"}]}	SHEPHERD	KELLY	STRAS	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580825/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Matthew St. PIERRE, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3657\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Matthew St. Pierre\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: October 15, 2018\n Filed: January 11, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Matthew St. Pierre pled guilty to aiding and abetting second-degree murder in\nviolation of 18 U.S.C. §§ 2, 1111, and 1153. Pursuant to a plea agreement, the\ngovernment recommended a United States Sentencing Guidelines range of 292-365\n\nmonths imprisonment. The district court1 rejected the plea agreement’s recommended\nsentencing range, adopted a higher range, and sentenced St. Pierre to 480 months\nimprisonment. St. Pierre appeals, contending the government breached the plea\nagreement and the district court committed procedural and substantive error in\ncalculating his sentence. Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28\nU.S.C. § 1291, we conclude the government did not breach the plea agreement.\nTherefore, the appeal waiver is enforceable with respect to the other claims raised\nhere, and we dismiss the appeal.\n\n G.K.I.W., a five-year-old girl, lived with her mother, Desarae Makes Him First,\nand St. Pierre, her mother’s domestic partner, on the Standing Rock Sioux Indian\nReservation. On Wednesday, October 5, 2016, staff at G.K.I.W.’s elementary school\nnoticed the child had bruising on her face, including her cheek and forehead. When\nasked what happened, G.K.I.W. said St. Pierre hit her while he was drunk. She began\ncrying when staff asked if she had been hurt anywhere else. A school nurse found\nadditional bruises on G.K.I.W.’s collarbone, and staff alerted the South Dakota\nDepartment of Social Services Child Protection Services (DSS) and the Standing\nRock Sioux Tribe Child Protection Services (SRST-CPS). A DSS social worker\nexamined G.K.I.W. and found even more bruising on the child’s stomach. Though\nSRST-CPS said they would respond to the claim, they did not do so before G.K.I.W.\nreturned home.\n\n The next day, school officials tried to contact SRST-CPS multiple times, but\nSRST-CPS did not return their calls. Eventually, G.K.I.W.’s school called the Fort\nYates Police Department, but once again, no one responded to the call. The school\nofficials were particularly concerned because there would be no school the following\nday (Friday) or the following Monday, and they feared for G.K.I.W.’s safety at home\n\n\n 1\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\nthat long without an investigation. Despite these concerns, G.K.I.W. was allowed to\nreturn home.\n\n When school resumed the following Tuesday, October 11, G.K.I.W. was\nabsent. Her sister said she was sick. School officials again called SRST-CPS and\nagain heard nothing, with the call going directly to voicemail. They also left a\nmessage for DSS. Finally, G.K.I.W.’s school sent its own school resource officer\n(SRO) to conduct a welfare check at G.K.I.W.’s home. The SRO went to Makes Him\nFirst’s address, but Makes Him First refused to let the SRO see G.K.I.W. She said\nthe child became bruised by fighting with her sister and that G.K.I.W. was asleep but\nwould be in school the next day.\n\n However, around 1:30 the following morning, Makes Him First brought\nG.K.I.W. to the hospital. The child was not breathing and was cold to the touch;\nbruises covered most of her body, including large bruises on her chest and thigh.\nDespite attempts to resuscitate G.K.I.W., she died shortly thereafter. Investigators\nlater determined the cause of death to be a tear in the child’s abdomen caused by\nabuse to her torso.\n\n Makes Him First eventually admitted to investigators that she had abused\nG.K.I.W. by hitting her with a shoe and punching her. She initially did not implicate\nSt. Pierre, and St. Pierre denied abusing the child. However, after being indicted for\nthe child’s death, Makes Him First described how St. Pierre abused G.K.I.W. in the\ndays leading up to her death. Makes Him First said that for three nights in a\nrow—Sunday, Monday, and Tuesday—St. Pierre entered G.K.I.W.’s room late at\nnight and abused the child. He accused G.K.I.W. of not sleeping before shining a\nlight in her face and then physically assaulting her by pulling her hair, pushing her\nchest, striking her thigh, and grabbing her neck. G.K.I.W. found the injuries to her\nchest particularly painful, as St. Pierre had already left bruises there by abusing her\nthroughout the week. Makes Him First admitted that on Tuesday, she and St. Pierre\n\n -3-\n\nkept G.K.I.W. home from school because they feared getting into trouble if school\nstaff noticed that G.K.I.W. was covered in bruises. She stated the abuse escalated\nthroughout the week; by Tuesday night, St. Pierre was picking G.K.I.W. up by the\nneck and choking her repeatedly until she blacked out. Makes Him First said she\nbegan crying and begging St. Pierre to stop hurting the child, but he ignored her. At\none point, St. Pierre held G.K.I.W. by the neck and shook her so severely that when\nhe put her back down, she could not stand. G.K.I.W.’s speech then became\nunintelligible, and she began to behave strangely. Makes Him First asked to give the\nchild a bath. St. Pierre poured water onto the child’s face, and Makes Him First\ndemanded they go to the hospital. G.K.I.W. turned pale, and her breathing shallowed.\nShe began to foam at the mouth. Makes Him First attempted to assist the child’s\nbreathing while St. Pierre started the car. On the way to the hospital, St. Pierre told\nMakes Him First that he would not go to prison for her child, and she needed to come\nup with a lie to explain the child’s injuries. Makes Him First explained she initially\nlied to investigators out of her fear of St. Pierre.\n\n When investigators interviewed other household members, they heard\nrepeatedly that St. Pierre had a violent anger problem. In the days before the murder,\none person asked St. Pierre and Makes Him First about G.K.I.W.’s frequent crying,\nand the couple said the child simply woke up that way. Another person had been told\nthat St. Pierre had once pushed G.K.I.W. into a wall. On the day G.K.I.W. died, a\nwitness stated St. Pierre and Makes Him First acted strangely, appearing more\nnervous than sad and whispering to one another. In November 2016, the government\nindicted St. Pierre as Makes Him First’s co-defendant.\n\n St. Pierre eventually pled guilty to aiding and abetting second-degree murder.\nThe plea agreement recommended a sentencing range of 292-365 months\nimprisonment. The parties agreed the base offense level was 38 but agreed to a\ntwo-point enhancement for a vulnerable victim pursuant to United States Sentencing\nCommission, Guidelines Manual, § 3A1.1(b) and a three-point reduction for timely\n\n -4-\n\nacceptance of responsibility pursuant to USSG § 3E1.1, resulting in a total offense\nlevel of 37. They also agreed that St. Pierre’s criminal history category was IV. St.\nPierre waived his right to appeal on most grounds. The plea agreement expressly\nstated that its recommendations were not binding on the district court, and if the\ndistrict court rejected its proposals, St. Pierre could not withdraw his plea. At his\nchange-of-plea hearing, St. Pierre stated he understood that the court would determine\nhis actual advisory Guidelines range and that it was not bound by the plea\nagreement’s recommendation. He further said that he understood his appellate waiver\nwould cover the majority of grounds on which he could raise an appeal.\n\n The presentence investigation report (PSR) prepared for St. Pierre’s sentencing\nhearing recommended a sentencing range of 360 months to life imprisonment. In\narriving at a total offense level of 41, the PSR included an enhancement for\nobstruction of justice pursuant to USSG § 3C1.1, to which St. Pierre objected. The\nprobation officer who wrote the report filed an amended PSR and addendum in\nresponse to St. Pierre’s objections. The addendum defended the obstruction of justice\nenhancement by noting Makes Him First testified that St. Pierre told her to lie about\nwhat happened to G.K.I.W. At the sentencing hearing, the government stated that it\n“adopt[ed]” the amended report and addendum but that it was “not asking the Court\nto go above” the stipulated sentencing range. As outlined in the plea agreement, the\ngovernment asked the district court to grant St. Pierre a three-point reduction for\ntimely acceptance of responsibility and joined in St. Pierre’s motion for a downward\ndeparture or variance to reach the plea agreement’s sentencing range.\n\n The district court declined to follow the plea agreement’s recommendations.\nIt found that St. Pierre’s acceptance of responsibility was not timely and agreed with\nthe PSR addendum that an obstruction of justice enhancement was appropriate. The\ndistrict court stated that the prolonged and severe nature of the abuse against\nG.K.I.W. made this case unlike any it had seen. It adopted the PSR’s recommended\nsentencing range and sentenced St. Pierre to 480 months imprisonment. St. Pierre\n\n -5-\n\nappeals, contending the government breached the plea agreement by adopting the\nPSR addendum and that the district court committed procedural and substantive error\nin deciding his sentence.\n\n We first determine whether the government breached the plea agreement such\nthat St. Pierre may appeal. “We review questions regarding the interpretation and\nenforcement of plea agreements de novo.” United States v. Mosley, 505 F.3d 804,\n808 (8th Cir. 2007). “If the government breached the plea agreement,” St. Pierre may\nproceed with his appeal “despite the appellate waiver.” United States v. Quebedo,\n788 F.3d 768, 775 (8th Cir. 2015). “[I]n determining whether the government has\nfulfilled its obligations under a plea agreement, we look to the agreement’s\nprovisions.” United States v. Kramer, 12 F.3d 130, 131 (8th Cir. 1993) (citing United\nStates v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990)). If the government “actively\nadvocate[s] for an outcome different from the one it had promised” to seek, it\nbreaches the plea agreement. United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir.\n2006). In United States v. Thompson, the parties’ plea agreement applied a specific\nGuidelines section for possession of a firearm, but after the PSR used the more severe\nfelonious assault section, the prosecutor accepted its recommendation out of “an\nobligation to advise the Court of what the facts are.” 403 F.3d 1037, 1039 (8th Cir.\n2005). Without being prompted by the court, the prosecutor argued that the facts to\nwhich Thompson had stipulated supported felonious assault. Id. at 1038, 1040. The\ncourt held that the prosecutor had, “[i]n essence,” argued against the plea agreement\nprovision and therefore breached the agreement. Id. at 1040-41.\n\n In St. Pierre’s plea agreement, the government agreed to recommend a sentence\nof 292-365 months imprisonment. The agreement made no mention of an obstruction\nof justice enhancement and did not require that the government join in any of St.\nPierre’s objections to the PSR. At sentencing, the government repeatedly requested\na sentence within the agreed-upon range. And, unlike in Thompson, when St. Pierre\nobjected to the obstruction-of-justice enhancement in the PSR, the government did\n\n -6-\n\nnot argue that the facts supported the enhancement; it merely said “there is evidence\nthere” and immediately emphasized its request for a downward departure or variance\nto reach the agreed-upon sentencing range. To be sure, as St. Pierre suggests, the\ngovernment could have simply not addressed the obstruction enhancement at all, and\nthe government’s statement that it “adopt[ed]” the amended PSR and addendum\nseems, on its face, to indicate agreement with it. However, viewed in context, the\ngovernment’s chosen course did not constitute breach. Rather, the government\nadvocated for the 292-365 month sentencing range outlined in the plea agreement no\nless than six times at sentencing, including in its discussion of the PSR addendum.\nBecause the government promised to recommend a sentence within the agreed-upon\nGuidelines range and consistently did so, it did not breach the plea agreement.\n\n Having found the plea agreement enforceable, we turn to whether St. Pierre\nwaived his right to appeal. “Whether a valid waiver of appellate rights occurred is\na question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791,\n795 (8th Cir. 2009). “When reviewing a purported waiver, we must confirm that the\nappeal falls within the scope of the waiver and that both the waiver and the plea\nagreement were entered into knowingly and voluntarily.” United States v. Andis, 333\nF.3d 886, 889-90 (8th Cir. 2003) (en banc). We will not “enforce an otherwise valid\nwaiver if to do so would result in a miscarriage of justice.” Id. at 891.\n\n First, St. Pierre’s appeal must fall within the scope of his waiver. Under the\nplea agreement, St. Pierre waived “his right to appeal any non-jurisdictional issues.”\nThe parties excluded from the waiver instances in which the district court departed\nor varied upward. Because St. Pierre’s appeal does not raise a jurisdictional issue and\nthe district court did not impose an upward departure or upward variance from the\n360 months to life imprisonment sentencing range it adopted, this appeal falls within\nthe scope of the waiver.\n\n\n\n\n -7-\n\n Second, the waiver and plea agreement must have been entered into knowingly\nand voluntarily. “[A] district court can help ensure that a plea agreement and\ncorresponding waiver are entered into knowingly and voluntarily [by] properly\nquestion[ing] a defendant about his or her decision to enter that agreement and waive\nthe right to appeal.” Id. at 890-91. Here, the district court did exactly that. At St.\nPierre’s change-of-plea hearing, it cautioned, “[I]f you don’t like what I do in your\ncase . . ., you have no place to go. You cannot go to the Court of Appeals in St.\nLouis, Missouri, and you cannot go to the United States Supreme Court.” While\nnoting that St. Pierre could still appeal a sentence that varied or departed upward, the\ndistrict court emphasized that that was an “exception” to St. Pierre’s broad appellate\nwaiver, saying, “[I]f I make a mistake in your case and you don’t like it, you are stuck\nwith it. And so you are giving up very valuable rights. Do you understand all of that,\nsir?” St. Pierre responded, “Yes, sir.” The district court then verified that no one had\nthreatened or coerced St. Pierre into pleading guilty and that St. Pierre would enter\nhis plea “voluntarily on [his] part and of [his] own free will.” Thus, the record\nindicates that St. Pierre entered into the plea agreement knowingly and voluntarily.\n\n Finally, enforcing the waiver must not result in a miscarriage of justice. “[T]his\nexception is a narrow one,” principally allowing the appeal of illegal sentences that\nare greater than the maximum statutory penalty. Id. at 891-92. In contrast, “an\nallegation that the sentencing judge misapplied the Sentencing Guidelines or abused\nhis or her discretion is not subject to appeal in the face of a valid appeal waiver.” Id.\nat 892. Because St. Pierre’s appeal is grounded in alleged errors by the district court\nin applying the Sentencing Guidelines, no miscarriage of justice occurs in enforcing\nthe appellate waiver. Therefore, the waiver is valid and enforceable.\n\n Even if we considered the merits of St. Pierre’s arguments alleging procedural\nand substantive error, we would affirm the sentence of the district court. See United\nStates v. Cook, 252 F. App’x 114, 115 (8th Cir. 2007) (per curiam). When reviewing\nthe sentence of a district court, we first affirm the absence of significant procedural\n\n -8-\n\nerror, such as failing to consider the 18 U.S.C. § 3553(a) factors. Gall v. United\nStates, 552 U.S. 38, 51 (2007). This does not require “‘robotic incantations’ that each\nstatutory factor has been considered.” United States v. Lamoreaux, 422 F.3d 750,\n756 (8th Cir. 2005) (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir.\n2005)). Rather, “all that is generally required to satisfy the appellate court is evidence\nthat the district court was aware of the relevant factors.” United States v. Perkins,\n526 F.3d 1107, 1110 (8th Cir. 2008).\n\n St. Pierre contends that the district court committed procedural error by failing\nto consider the disparity between his sentence and the sentences imposed on similar\ndefendants. However, the district court explicitly discussed similar cases cited by St.\nPierre and described St. Pierre’s case as “far from” those examples, saying, “I have\nnever seen such a case as this in the 22-plus years I have sat on the bench, the cruelty\nday in and day out.” Because the district court appropriately considered the\nsentencing factors, it did not commit significant procedural error.\n\n After confirming the absence of procedural error, we examine the substantive\nreasonableness of the sentence, using a “deferential abuse-of-discretion standard.”\nGall, 552 U.S. at 41, 51. A district court abuses its discretion only if it “fails to\nconsider a relevant factor that should have received significant weight;” “gives\nsignificant weight to an improper or irrelevant factor;” or “commits a clear error of\njudgment” in weighing the proper factors. United States v. Feemster, 572 F.3d 455,\n461 (8th Cir. 2009) (en banc) (quoting United States v. Kane, 552 F.3d 748, 752 (8th\nCir. 2009)). A sentence within the Guidelines range is presumptively reasonable, and\n“it will be the unusual case when we reverse a district court sentence—whether\nwithin, above, or below the applicable Guidelines range—as substantively\nunreasonable.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d 1089, 1090\n(D.C. Cir. 2008)). The “district court has wide latitude to weigh the § 3553(a) factors\nin each case and assign some factors greater weight than others in determining an\nappropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009).\n\n -9-\n\n Here, St. Pierre’s sentence was within the Guidelines range calculated by the\ndistrict court and is presumptively reasonable. The district court clearly considered\nsentence disparity, and it had “wide latitude” to assign great weight to the\ncircumstances of the case and to emphasize the abuse G.K.I.W. had suffered. Id. at\n379. Therefore, the district court did not abuse its discretion in imposing St. Pierre’s\nsentence, and we would affirm the district court’s judgment even absent the appellate\nwaiver.\n\n Because the government did not breach the plea agreement and St. Pierre\nwaived his ability to appeal on these grounds, we dismiss the appeal.\n[END_CASE]", "role": "user" } ]
4,580,827	IOWA GREAT LAKES SANITARY DISTRICT, Plaintiff - Appellant v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA; Evoqua Water Technologies, Defendants - Appellees	Iowa Great Lakes Sanitary Dist. v. Travelers Cas. & Sur. Co. of Am.	2019-01-11	17-2732	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2732\n ___________________________\n\n Iowa Great Lakes Sanitary District\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\nTravelers Casualty and Surety Company of America; Evoqua Water Technologies\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Sioux City\n ____________\n\n Submitted: October 16, 2018\n Filed: January 11, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n This is a diversity action removed from state court in December 2015. Iowa\nGreat Lakes Sanitary District (IGLSD) alleges that an Ultraviolet Wastewater\nDisinfectant System (UV System) installed at IGLSD’s Dickinson County\nWastewater Treatment Facility “has consistently failed to function in any working\ncapacity.” IGLSD asserts a claim against Travelers Casualty and Surety Company\n\fof America (Travelers) under the Performance and Maintenance Bond issued to\nguarantee performance by the project’s contractor, and breach of warranty claims\nagainst the UV System vendor, Evoqua Water Technologies, f/k/a Siemens Water\nTechnologies (Evoqua). IGLSD appeals the District Court’s1 grant of summary\njudgment dismissing these claims. Reviewing the grant of summary judgment de\nnovo, we affirm. Bruce Martin Const., Inc. v. CTB, Inc., 735 F.3d 750, 753 (8th Cir.\n2013) (standard of review).\n\n I. Background.\n\n In 2007, IGLSD contracted with McHan Construction, Inc., to complete a\n$14,593,000 addition to the Wastewater Treatment Facility, including installation of\na UV System. McHan procured a Performance and Maintenance Bond from\nTravelers fully guaranteeing McHan’s “faithful performance of the contract” with\nIGLSD. After the contract was in effect, McHan purchased a vertical open channel\nUV System from Evoqua for $132,000. The purchase agreement included an express\ntwo-year limited warranty “that the equipment or material . . . is free from defects in\nworkmanship and materials.” The two-year warranty period would commence on the\ndate the equipment successfully completed a required sixty-day performance test.\n\n After McHan defaulted in late 2009, Travelers and IGLSD entered into a “Take\nOver Agreement” whereby Travelers agreed “to complete the Project pursuant to the\nterms of the Contract,” with its Performance and Maintenance Bond “in full force and\neffect.” Start-up problems plagued installation of the UV System, causing further\ndelays in completing the contract. When the installed UV equipment eventually\ncompleted the sixty-day performance testing, IGLSD’s project engineer, James\nRasmussen, advised the parties on November 8, 2011: “With the latest Performance\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge of the United States District\nCourt for the Northern District of Iowa.\n\n -2-\n\fTest on Module No. 2 the UV disinfection equipment is now Substantially Completed\nand the project can be finally accepted. The Warranty Period for the equipment will\nbe considered to be started on November 1, 2011.”\n\n Substantial Completion did not end the parties’ problems with the UV System,\nwhich IGLSD alleges was often nonoperational. In June 2012, an electrical fire\ndamaged one of the modules; it was returned to Evoqua’s factory for repairs. In May\n2013, IGLSD complained there was soot in the system, it was malfunctioning, and\nwarranty issues had not been addressed. In a July 2013 letter to Travelers, Engineer\nRasmussen noted the equipment warranty would expire November 1, 2013, expressed\nconcern that Siemens and Evoqua were not supporting the equipment, summarized\nnumerous items needing repair, and asked Travelers to “develop a plan to\nrepair/replace the equipment by the end of the Warranty date.”\n\n Alerted to these complaints, Evoqua sent a technician to assess the equipment\nin September 2013. Based on his report, in April 2014 Evoqua proposed that the two\nUV modules undergo a substantial rehab, with IGLSD and Evoqua splitting the\n$75,000.00 cost. In a May 12, 2014 letter, Engineer Rasmussen responded that\nIGLSD “does not wish to go any further to repair the failed equipment” and requested\nthat the UV System “be removed from the project and the cost of the initial purchase\nof the equipment be refunded.” This lawsuit followed.\n\n In its summary judgment Order, the district court noted that Chief Magistrate\nJudge C.J. Williams had entered an order that “prohibited IGLSD from proffering\nexpert testimony as a sanction for IGLSD’s failure to comply with the court’s\ndeadlines.” The district court also ruled that IGLSD had violated Local Rule 56(b)\nby failing to respond to the Statements of Undisputed Material Facts submitted by\nEvoqua and Travelers in support of their summary judgment motions, and therefore\nthose facts “are deemed to have been admitted by IGLSD.” IGLSD does not\nchallenge these significant procedural rulings on appeal.\n\n -3-\n\f II. The Breach of Warranty Claim Against Evoqua.\n\n IGLSD claims that Evoqua breached its limited two-year express warranty that\nthe UV System equipment “is free from defects in workmanship and materials.” A\nbreach of express warranty claim under Iowa law “requires proof of a product defect\nas defined in Products Restatement section 2.” Cummings v. Deere & Co., 589 F.\nSupp. 2d 1108, 1118 n.22 (S.D. Iowa 2008), quoting Wright v. Brooke Group, Ltd.,\n652 N.W.2d 159, 182 (Iowa 2002). Summary judgment is mandated “against a party\nwho fails to make a showing sufficient to establish the existence of an element\nessential to that party’s case, and on which that party will bear the burden of proof at\ntrial.” Celotex Corp. v. Catret, 477 U.S. 317, 322 (1986). “Evidence of a defect is\nan indispensable element of any express or implied warranty claim.” Coop. Power\nAss’n v. Westinghouse Elec. Corp., 60 F.3d 1336, 1344-45 (8th Cir. 1995).\n\n In cases involving “complicated technical and scientific issues . . . expert\ntestimony is required to submit the issue of a product defect under Iowa law.”\nCummings, 589 F. Supp. 2d at 1118. “Whether expert testimony is required\nultimately depends on whether it is a fact issue upon which the jury needs assistance\nto reach an intelligent or correct decision.” Reed v. Chrysler Corp. 494 N.W.2d 224,\n226 (Iowa 1992) (quotation omitted). Here, with IGLSD precluded from presenting\nexpert testimony, the district court concluded that IGLSD could not prove that the UV\nsystem was defective, an essential element of its warranty claim, because the issue\n“involves sophisticated technology that kills bacteria in waste water through the use\nof light that is literally invisible to the naked eye. Such technology is far beyond the\ncommon knowledge and experience of the average layperson.” On appeal, IGLSD\nargues that the court erred in granting summary judgment because it can present a\nsubmissible case of equipment defect with lay witness testimony that “the UV\nequipment failed to function frequently and in so many ways that it clearly was\ndefective and it wasn’t necessary for an expert to explain the obvious.”\n\n\n\n -4-\n\f Viewed in the light most favorable to IGLSD, the summary judgment record\nreflects that the UV System often malfunctioned.2 However, the question is whether,\nwithout expert testimony, IGLSD can establish that the UV System’s on-going\noperational issues, such as the 2012 fire in Module No. 2, were caused by equipment\ndefects that breached the express warranty, rather than by improper operation and\nmaintenance of the complex system, improper storage during the winter, or other\npossible causes.\n\n Even more significantly, the express warranty provided that IGLSD’s exclusive\nremedy “is the replacement f.o.b. shipping point of the defective part or parts of the\nmaterial or equipment.” Evoqua’s Statement of Undisputed Material Facts, deemed\nadmitted by the district court, recited that “Evoqua was ready and able to address the\nfew remaining warranty issues on the punch list” but “IGLSD did not allow Evoqua\nto repair or replace the few remaining warranty items.” This is confirmed by\nEngineer Rasmussen’s May 2014 response to Evoqua’s rehab proposal in which he\nadvised that IGLSD “does not wish to go any further to repair the failed equipment.”\nBuyer’s remorse, however justifiable, is not proof that the equipment had such serious\n“defects in workmanship and materials” that IGLSD was justified in refusing\nEvoqua’s offer to repair and replace, the exclusive remedy provided in the warranty,\nand bringing an action seeking refund of the entire purchase price. Only expert\ntestimony could possibly justify IGLSD’s warranty claim for a remedy excluded by\nthe warranty. We conclude the district court properly granted summary judgment\ndismissing IGLSD’s breach of warranty claim against Evoqua.\n\n\n\n\n 2\n The Wastewater Treatment Facility only operated disinfection equipment\nduring warm weather months, so IGLSD’s conclusory assertion that the UV System\nwas nonoperational 57% of the time was not adequately explained and supported.\n\n -5-\n\f III. The Bond Claim Against Travelers.\n\n IGLSD also appeals the dismissal of its claim against Travelers under its\nPerformance and Maintenance Bond. The bond guaranteed the contractor’s full\nperformance of its obligations under its contract with IGLSD. Section 13.07 of the\ncontract obligated the contractor to correct, at no cost to IGLSD, “any Work [that] is\nfound to be defective” within one year after the date of Substantial Completion or any\nlonger period prescribed “by the terms of any applicable special guarantee required\nby the Contract Documents.” If IGLSD had established that Evoqua’s UV System\nwas “defective,” the contractor and its bonding company would be obligated by\n§ 13.07 to correct or repair or replace the defective work. But we have affirmed the\ngrant of summary judgment dismissing the claim of defective work.\n\n IGLSD argued an additional theory to the district court that became the focus\nof its appeal. As the district court explained, quoting IGLSD’s contention:\n\n IGLSD [argues] that recovery against Travelers is [not] dependent\n on and/or limited to a breach of warranty claim[] against a supplier of\n materials for the project. The [contract] provides that the project\n engineer and the owner have the authority to reject work that they\n believe to be defective or that the Engineer believes will not produce a\n completed project. On May 12, 2014 the engineer and the owner\n rejected the UV equipment and ordered that it be replaced or that the\n cost be reimbursed. The contractor hired by Travelers did not comply\n nor did Evoqua or Travelers which Plaintiff alleges is a breach of the\n terms of the contract and the Bond.\n\nThe district court rejected this theory, concluding that Engineer Rasmussen’s\nauthority to reject work applied during “the actual construction phase,” which ended\nwhen Rasmussen declared the project substantially completed on November 1, 2011.\nAlthough § 13.07 extended the contractor’s obligation to repair or replace defective\nwork after Substantial Completion, the court reasoned that § 13.07 did not “extend\n\n -6-\n\fthe project engineer’s ability to reject work indefinitely beyond completion.” Rather,\nthe court concluded, “[t]o make a proper claim regarding completed work, IGLSD\nmust establish a construction, installation or equipment defect.” We agree.\n\n Engineer Rasmussen’s authority to reject work he “believes to be defective, or\n. . . will not produce a completed project” is found in § 9.06 of the contract, part of\nArticle 9 entitled “ENGINEER’S STATUS DURING CONSTRUCTION.”\nRasmussen’s May 12, 2014 letter to Evoqua and Travelers was a response to\nEvoqua’s proposal to complete warranty repairs with a substantial rehab of the two\nUV modules. The letter did not state that the UV System was “rejected” and did not\ncite § 9.06 of the contract; rather, it requested that the system “be removed from the\nproject and the cost of the initial purchase of the equipment be refunded to the\nDistrict.” IGLSD argues on appeal that the letter was a proper exercise of the\nengineer’s power to reject work, a power limited only by his professional duty of care\nand reasonableness. But that characterization is contrary to the plain meaning of\n§ 9.06 and the letter itself. And the argument ignores the fact that the letter was not\nsent until May 2014, months after expiration of Evoqua’s warranty and expiration of\nthe contractor’s two-year “guarantee and maintenance period” that is referenced in\nIGLSD’s Notice To Bidders and the Travelers bond, but is not otherwise to be found\nin the Contract Documents IGLSD placed in the record on appeal.\n\n The summary judgment record established that IGLSD considered rejecting the\nUV system in 2010, well before the engineer certified Substantial Completion, but\nchose not to do so. On November 17, 2010, Travelers and IGLSD sent Evoqua an\nemail warning that they were considering rejection due to installation delays. A July\n2011 internal Travelers email reported that IGLSD’s engineer was “mumbling about\nrejecting the system.” Instead, on November 1, 2011, Engineer Rasmussen certified\nthat “the UV disinfection equipment is now Substantially Completed and the project\ncan be finally accepted.” Under Iowa law, it is a “general rule that as to known\ndefects, acceptance of the work in the absence of fraud or mistake is a complete bar\n\n -7-\n\fto recovery on the construction bond.” Elliott Consol. Sch. Dist. v. Busboom, 227 F.\nSupp. 858, 862 (S.D. Iowa 1964). In these circumstances, we agree with the district\ncourt that “IGLSD is unable to contort the contract/bond language to such an extent\nthat it could unilaterally reject the UV unit in 2014, without showing (through expert\ntestimony) some type of defect.”\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358080/", "author_raw": "LOKEN, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580827/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: IOWA GREAT LAKES SANITARY DISTRICT, Plaintiff - Appellant v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA; Evoqua Water Technologies, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2732\n ___________________________\n\n Iowa Great Lakes Sanitary District\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\nTravelers Casualty and Surety Company of America; Evoqua Water Technologies\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Sioux City\n ____________\n\n Submitted: October 16, 2018\n Filed: January 11, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n This is a diversity action removed from state court in December 2015. Iowa\nGreat Lakes Sanitary District (IGLSD) alleges that an Ultraviolet Wastewater\nDisinfectant System (UV System) installed at IGLSD’s Dickinson County\nWastewater Treatment Facility “has consistently failed to function in any working\ncapacity.” IGLSD asserts a claim against Travelers Casualty and Surety Company\n\fof America (Travelers) under the Performance and Maintenance Bond issued to\nguarantee performance by the project’s contractor, and breach of warranty claims\nagainst the UV System vendor, Evoqua Water Technologies, f/k/a Siemens Water\nTechnologies (Evoqua). IGLSD appeals the District Court’s1 grant of summary\njudgment dismissing these claims. Reviewing the grant of summary judgment de\nnovo, we affirm. Bruce Martin Const., Inc. v. CTB, Inc., 735 F.3d 750, 753 (8th Cir.\n2013) (standard of review).\n\n I. Background.\n\n In 2007, IGLSD contracted with McHan Construction, Inc., to complete a\n$14,593,000 addition to the Wastewater Treatment Facility, including installation of\na UV System. McHan procured a Performance and Maintenance Bond from\nTravelers fully guaranteeing McHan’s “faithful performance of the contract” with\nIGLSD. After the contract was in effect, McHan purchased a vertical open channel\nUV System from Evoqua for $132,000. The purchase agreement included an express\ntwo-year limited warranty “that the equipment or material . . . is free from defects in\nworkmanship and materials.” The two-year warranty period would commence on the\ndate the equipment successfully completed a required sixty-day performance test.\n\n After McHan defaulted in late 2009, Travelers and IGLSD entered into a “Take\nOver Agreement” whereby Travelers agreed “to complete the Project pursuant to the\nterms of the Contract,” with its Performance and Maintenance Bond “in full force and\neffect.” Start-up problems plagued installation of the UV System, causing further\ndelays in completing the contract. When the installed UV equipment eventually\ncompleted the sixty-day performance testing, IGLSD’s project engineer, James\nRasmussen, advised the parties on November 8, 2011: “With the latest Performance\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge of the United States District\nCourt for the Northern District of Iowa.\n\n -2-\n\fTest on Module No. 2 the UV disinfection equipment is now Substantially Completed\nand the project can be finally accepted. The Warranty Period for the equipment will\nbe considered to be started on November 1, 2011.”\n\n Substantial Completion did not end the parties’ problems with the UV System,\nwhich IGLSD alleges was often nonoperational. In June 2012, an electrical fire\ndamaged one of the modules; it was returned to Evoqua’s factory for repairs. In May\n2013, IGLSD complained there was soot in the system, it was malfunctioning, and\nwarranty issues had not been addressed. In a July 2013 letter to Travelers, Engineer\nRasmussen noted the equipment warranty would expire November 1, 2013, expressed\nconcern that Siemens and Evoqua were not supporting the equipment, summarized\nnumerous items needing repair, and asked Travelers to “develop a plan to\nrepair/replace the equipment by the end of the Warranty date.”\n\n Alerted to these complaints, Evoqua sent a technician to assess the equipment\nin September 2013. Based on his report, in April 2014 Evoqua proposed that the two\nUV modules undergo a substantial rehab, with IGLSD and Evoqua splitting the\n$75,000.00 cost. In a May 12, 2014 letter, Engineer Rasmussen responded that\nIGLSD “does not wish to go any further to repair the failed equipment” and requested\nthat the UV System “be removed from the project and the cost of the initial purchase\nof the equipment be refunded.” This lawsuit followed.\n\n In its summary judgment Order, the district court noted that Chief Magistrate\nJudge C.J. Williams had entered an order that “prohibited IGLSD from proffering\nexpert testimony as a sanction for IGLSD’s failure to comply with the court’s\ndeadlines.” The district court also ruled that IGLSD had violated Local Rule 56(b)\nby failing to respond to the Statements of Undisputed Material Facts submitted by\nEvoqua and Travelers in support of their summary judgment motions, and therefore\nthose facts “are deemed to have been admitted by IGLSD.” IGLSD does not\nchallenge these significant procedural rulings on appeal.\n\n -3-\n\f II. The Breach of Warranty Claim Against Evoqua.\n\n IGLSD claims that Evoqua breached its limited two-year express warranty that\nthe UV System equipment “is free from defects in workmanship and materials.” A\nbreach of express warranty claim under Iowa law “requires proof of a product defect\nas defined in Products Restatement section 2.” Cummings v. Deere & Co., 589 F.\nSupp. 2d 1108, 1118 n.22 (S.D. Iowa 2008), quoting Wright v. Brooke Group, Ltd.,\n652 N.W.2d 159, 182 (Iowa 2002). Summary judgment is mandated “against a party\nwho fails to make a showing sufficient to establish the existence of an element\nessential to that party’s case, and on which that party will bear the burden of proof at\ntrial.” Celotex Corp. v. Catret, 477 U.S. 317, 322 (1986). “Evidence of a defect is\nan indispensable element of any express or implied warranty claim.” Coop. Power\nAss’n v. Westinghouse Elec. Corp., 60 F.3d 1336, 1344-45 (8th Cir. 1995).\n\n In cases involving “complicated technical and scientific issues . . . expert\ntestimony is required to submit the issue of a product defect under Iowa law.”\nCummings, 589 F. Supp. 2d at 1118. “Whether expert testimony is required\nultimately depends on whether it is a fact issue upon which the jury needs assistance\nto reach an intelligent or correct decision.” Reed v. Chrysler Corp. 494 N.W.2d 224,\n226 (Iowa 1992) (quotation omitted). Here, with IGLSD precluded from presenting\nexpert testimony, the district court concluded that IGLSD could not prove that the UV\nsystem was defective, an essential element of its warranty claim, because the issue\n“involves sophisticated technology that kills bacteria in waste water through the use\nof light that is literally invisible to the naked eye. Such technology is far beyond the\ncommon knowledge and experience of the average layperson.” On appeal, IGLSD\nargues that the court erred in granting summary judgment because it can present a\nsubmissible case of equipment defect with lay witness testimony that “the UV\nequipment failed to function frequently and in so many ways that it clearly was\ndefective and it wasn’t necessary for an expert to explain the obvious.”\n\n\n\n -4-\n\f Viewed in the light most favorable to IGLSD, the summary judgment record\nreflects that the UV System often malfunctioned.2 However, the question is whether,\nwithout expert testimony, IGLSD can establish that the UV System’s on-going\noperational issues, such as the 2012 fire in Module No. 2, were caused by equipment\ndefects that breached the express warranty, rather than by improper operation and\nmaintenance of the complex system, improper storage during the winter, or other\npossible causes.\n\n Even more significantly, the express warranty provided that IGLSD’s exclusive\nremedy “is the replacement f.o.b. shipping point of the defective part or parts of the\nmaterial or equipment.” Evoqua’s Statement of Undisputed Material Facts, deemed\nadmitted by the district court, recited that “Evoqua was ready and able to address the\nfew remaining warranty issues on the punch list” but “IGLSD did not allow Evoqua\nto repair or replace the few remaining warranty items.” This is confirmed by\nEngineer Rasmussen’s May 2014 response to Evoqua’s rehab proposal in which he\nadvised that IGLSD “does not wish to go any further to repair the failed equipment.”\nBuyer’s remorse, however justifiable, is not proof that the equipment had such serious\n“defects in workmanship and materials” that IGLSD was justified in refusing\nEvoqua’s offer to repair and replace, the exclusive remedy provided in the warranty,\nand bringing an action seeking refund of the entire purchase price. Only expert\ntestimony could possibly justify IGLSD’s warranty claim for a remedy excluded by\nthe warranty. We conclude the district court properly granted summary judgment\ndismissing IGLSD’s breach of warranty claim against Evoqua.\n\n\n\n\n 2\n The Wastewater Treatment Facility only operated disinfection equipment\nduring warm weather months, so IGLSD’s conclusory assertion that the UV System\nwas nonoperational 57% of the time was not adequately explained and supported.\n\n -5-\n\f III. The Bond Claim Against Travelers.\n\n IGLSD also appeals the dismissal of its claim against Travelers under its\nPerformance and Maintenance Bond. The bond guaranteed the contractor’s full\nperformance of its obligations under its contract with IGLSD. Section 13.07 of the\ncontract obligated the contractor to correct, at no cost to IGLSD, “any Work [that] is\nfound to be defective” within one year after the date of Substantial Completion or any\nlonger period prescribed “by the terms of any applicable special guarantee required\nby the Contract Documents.” If IGLSD had established that Evoqua’s UV System\nwas “defective,” the contractor and its bonding company would be obligated by\n§ 13.07 to correct or repair or replace the defective work. But we have affirmed the\ngrant of summary judgment dismissing the claim of defective work.\n\n IGLSD argued an additional theory to the district court that became the focus\nof its appeal. As the district court explained, quoting IGLSD’s contention:\n\n IGLSD [argues] that recovery against Travelers is [not] dependent\n on and/or limited to a breach of warranty claim[] against a supplier of\n materials for the project. The [contract] provides that the project\n engineer and the owner have the authority to reject work that they\n believe to be defective or that the Engineer believes will not produce a\n completed project. On May 12, 2014 the engineer and the owner\n rejected the UV equipment and ordered that it be replaced or that the\n cost be reimbursed. The contractor hired by Travelers did not comply\n nor did Evoqua or Travelers which Plaintiff alleges is a breach of the\n terms of the contract and the Bond.\n\nThe district court rejected this theory, concluding that Engineer Rasmussen’s\nauthority to reject work applied during “the actual construction phase,” which ended\nwhen Rasmussen declared the project substantially completed on November 1, 2011.\nAlthough § 13.07 extended the contractor’s obligation to repair or replace defective\nwork after Substantial Completion, the court reasoned that § 13.07 did not “extend\n\n -6-\n\fthe project engineer’s ability to reject work indefinitely beyond completion.” Rather,\nthe court concluded, “[t]o make a proper claim regarding completed work, IGLSD\nmust establish a construction, installation or equipment defect.” We agree.\n\n Engineer Rasmussen’s authority to reject work he “believes to be defective, or\n. . . will not produce a completed project” is found in § 9.06 of the contract, part of\nArticle 9 entitled “ENGINEER’S STATUS DURING CONSTRUCTION.”\nRasmussen’s May 12, 2014 letter to Evoqua and Travelers was a response to\nEvoqua’s proposal to complete warranty repairs with a substantial rehab of the two\nUV modules. The letter did not state that the UV System was “rejected” and did not\ncite § 9.06 of the contract; rather, it requested that the system “be removed from the\nproject and the cost of the initial purchase of the equipment be refunded to the\nDistrict.” IGLSD argues on appeal that the letter was a proper exercise of the\nengineer’s power to reject work, a power limited only by his professional duty of care\nand reasonableness. But that characterization is contrary to the plain meaning of\n§ 9.06 and the letter itself. And the argument ignores the fact that the letter was not\nsent until May 2014, months after expiration of Evoqua’s warranty and expiration of\nthe contractor’s two-year “guarantee and maintenance period” that is referenced in\nIGLSD’s Notice To Bidders and the Travelers bond, but is not otherwise to be found\nin the Contract Documents IGLSD placed in the record on appeal.\n\n The summary judgment record established that IGLSD considered rejecting the\nUV system in 2010, well before the engineer certified Substantial Completion, but\nchose not to do so. On November 17, 2010, Travelers and IGLSD sent Evoqua an\nemail warning that they were considering rejection due to installation delays. A July\n2011 internal Travelers email reported that IGLSD’s engineer was “mumbling about\nrejecting the system.” Instead, on November 1, 2011, Engineer Rasmussen certified\nthat “the UV disinfection equipment is now Substantially Completed and the project\ncan be finally accepted.” Under Iowa law, it is a “general rule that as to known\ndefects, acceptance of the work in the absence of fraud or mistake is a complete bar\n\n -7-\n\fto recovery on the construction bond.” Elliott Consol. Sch. Dist. v. Busboom, 227 F.\nSupp. 858, 862 (S.D. Iowa 1964). In these circumstances, we agree with the district\ncourt that “IGLSD is unable to contort the contract/bond language to such an extent\nthat it could unilaterally reject the UV unit in 2014, without showing (through expert\ntestimony) some type of defect.”\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -8-\n[END_CASE]", "role": "user" } ]
4,581,205	Ramona EVANS, Plaintiff-Appellant, v. CITY OF HELENA-WEST HELENA, ARKANSAS, Defendant-Appellee.	Ramona Evans v. City of Helena-West Helena, AR	2019-01-14	17-2005	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Beam, Grasz", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2005\n ___________________________\n\n Ramona Evans,\n\n lllllllllllllllllllllPlaintiff - Appellant,\n\n v.\n\n City of Helena-West Helena, Arkansas,\n\n lllllllllllllllllllllDefendant - Appellee.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Helena\n ____________\n\n Submitted: September 26, 2018\n Filed: January 14, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Ramona Evans, a resident of the City of Helena-West Helena, Arkansas,\nappeals the dismissal of her claim against the City alleging a deprivation of\nconstitutional rights under 42 U.S.C. § 1983. Evans asserts that the clerk’s office in\nthe Phillips County District Court failed to document that she paid certain fines, and\nthen requested issuance of a warrant for her arrest. Her amended complaint alleges\n\fthat she was arrested, her car was towed, and she was held at the police station until\nit was discovered that she had paid the fines. Evans asserts that the clerk’s failure to\ndocument payments has become “a practice, custom and habit,” and the City’s\n“unconstitutional policies” caused a deprivation of her liberty and property,\napparently in violation of the Due Process Clause of the Fourteenth Amendment.\nEvans’s complaint does not specify when the arrest occurred, but it allegedly\nhappened sometime between July 18, 2013, and July 15, 2016. See R. Doc. 2, at 1.\n\n The district court dismissed Evans’s complaint for failure to state a claim, with\none sentence of explanation: “Although Plaintiff’s allegations are\ntroubling—especially if, as Plaintiff alleges, it occurs frequently—the Clerk and the\nDistrict Court are state-government officials who are neither employed by Defendant,\nnor amenable to suit.” Evans appeals.\n\n On the question of amenability to suit, we conclude that the district court erred.\nWhether or not the clerk or the Phillips County District Court is “amenable to suit,”\nthe City of Helena-West Helena is the defendant, and it has no immunity from suit.\nSee Alden v. Maine, 527 U.S. 706, 756 (1999); Owen v. City of Independence, 445\nU.S. 622, 638 (1980); Webb v. City of Maplewood, 889 F.3d 483, 485-86 (8th Cir.\n2018). While a municipality cannot be held liable without an unconstitutional act by\na municipal employee, there is no requirement that the plaintiff establish that an\nemployee who acted unconstitutionally is personally liable. Webb, 889 F.3d at 487.\nSo even if the clerk personally has absolute or qualified immunity from suit and\ndamages, that immunity does not foreclose an action against the City if the complaint\nadequately alleges an unconstitutional policy or custom and an unconstitutional act\nby the clerk as a city employee.\n\n The district court’s other rationale—that the clerk is a state government official\nwhose actions are not attributable to the City—is more complicated. Whether the\nclerk acts on behalf of the State, the City, or the County depends on the definition of\n\n -2-\n\fthe clerk’s official functions under relevant state law. McMillian v. Monroe County,\n520 U.S. 781, 786 (1997); Dean v. County of Gage, 807 F.3d 931, 942 (8th Cir.\n2015).\n\n The City defends the district court’s conclusion based on Amendment 80 to the\nArkansas Constitution. That Amendment, effective in 2001, vests the judicial power\nin the “Judicial Department of state government, consisting of a Supreme Court and\nother courts established by this Constitution.” Ark. Const. amend. 80, § 1. Another\nsection provides that “District Courts are established as the trial courts of limited\njurisdiction.” Id. § 7(A). The City maintains that because the Phillips County District\nCourt was part of the judicial department of state government, and the clerk was\nappointed by a judge of the district court, the clerk’s actions against Evans were\nattributable to the State, not to the City.\n\n Amendment 80, however, was not fully implemented immediately as to the\nPhillips County District Court. The Amendment granted the General Assembly “the\npower to establish jurisdiction of all courts . . . and the power to establish judicial\ncircuits and districts and the number of judges for Circuit Courts and District Courts.”\nId. § 10. Although the legislature provided in 2003 that Phillips County would have\na district court with elected judges, Ark. Code Ann. § 16-17-917 (West 2003), the\njudges were not state employees. As of 2008, the “structure of limited jurisdiction\ncourts consist[ed] of a combination of full-time and part-time district and city courts\nfunded by city and county governments[.]” Ark. Code Ann. § 16-17-1101(2) (West\n2008).\n\n The General Assembly then established “a pilot program that create[d] a\nlimited number of state-funded pilot state district court judgeships,” id. § 16-17-\n1101(8), but Phillips County was not included. Id. § 16-17-1103. Judges outside the\npilot program, like those in Phillips County, continued to be employees of the cities\nor counties, or both, that they served. Id. § 16-17-1107. It was not until 2017, after\n\n -3-\n\fthe events alleged in Evans’s complaint, that Phillips County was one of several\ncounties that were “reorganized as state district courts and served by a state district\ncourt judge.” Ark. Code Ann. § 16-17-1112(a)(1) (West 2015). Until then, Phillips\nCounty was among those counties that were “served by local district courts.” Id.\nDuring the relevant period, state law gave cities and counties authority to set salaries\nfor the district court clerk, see Ark. Code Ann. § 16-17-211(b) (West 2012), and the\ncomplaint alleges that employees of the court were hired by the City and paid by the\nCity, with salaries accounted for in the City’s annual budget.\n\n The district court resolved the case on a motion to dismiss, so the record has\nnot been developed with respect to the clerk’s duties and responsibilities, the source\nof the clerk’s pay, or the degree of control that state or local officials, respectively,\nexercised over the clerk. See McMillian, 520 U.S. at 789-93. At this stage of the\nproceeding, however, we conclude that the complaint states at least a plausible claim\nthat the clerk was a city official at the time of the alleged wrongdoing, in which case\nthe City could be accountable for actions of the clerk that establish or carry out an\nunconstitutional policy or custom of the municipality. We therefore conclude that the\ncase should not have been dismissed for failure to state a claim on the grounds\nspecified by the district court. We express no view on whether the complaint\notherwise is sufficient to state a claim against the City.\n\n The judgment is reversed and the case is remanded for further proceedings. It\nis therefore unnecessary to address the district court’s denial of Evans’s post-\njudgment motion to amend her complaint.\n ______________________________\n\n\n\n\n -4-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358458/", "author_raw": "COLLOTON, Circuit Judge."}]}	COLLOTON	BEAM	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581205/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ramona EVANS, Plaintiff-Appellant, v. CITY OF HELENA-WEST HELENA, ARKANSAS, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2005\n ___________________________\n\n Ramona Evans,\n\n lllllllllllllllllllllPlaintiff - Appellant,\n\n v.\n\n City of Helena-West Helena, Arkansas,\n\n lllllllllllllllllllllDefendant - Appellee.\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Helena\n ____________\n\n Submitted: September 26, 2018\n Filed: January 14, 2019\n ____________\n\nBefore COLLOTON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n Ramona Evans, a resident of the City of Helena-West Helena, Arkansas,\nappeals the dismissal of her claim against the City alleging a deprivation of\nconstitutional rights under 42 U.S.C. § 1983. Evans asserts that the clerk’s office in\nthe Phillips County District Court failed to document that she paid certain fines, and\nthen requested issuance of a warrant for her arrest. Her amended complaint alleges\n\fthat she was arrested, her car was towed, and she was held at the police station until\nit was discovered that she had paid the fines. Evans asserts that the clerk’s failure to\ndocument payments has become “a practice, custom and habit,” and the City’s\n“unconstitutional policies” caused a deprivation of her liberty and property,\napparently in violation of the Due Process Clause of the Fourteenth Amendment.\nEvans’s complaint does not specify when the arrest occurred, but it allegedly\nhappened sometime between July 18, 2013, and July 15, 2016. See R. Doc. 2, at 1.\n\n The district court dismissed Evans’s complaint for failure to state a claim, with\none sentence of explanation: “Although Plaintiff’s allegations are\ntroubling—especially if, as Plaintiff alleges, it occurs frequently—the Clerk and the\nDistrict Court are state-government officials who are neither employed by Defendant,\nnor amenable to suit.” Evans appeals.\n\n On the question of amenability to suit, we conclude that the district court erred.\nWhether or not the clerk or the Phillips County District Court is “amenable to suit,”\nthe City of Helena-West Helena is the defendant, and it has no immunity from suit.\nSee Alden v. Maine, 527 U.S. 706, 756 (1999); Owen v. City of Independence, 445\nU.S. 622, 638 (1980); Webb v. City of Maplewood, 889 F.3d 483, 485-86 (8th Cir.\n2018). While a municipality cannot be held liable without an unconstitutional act by\na municipal employee, there is no requirement that the plaintiff establish that an\nemployee who acted unconstitutionally is personally liable. Webb, 889 F.3d at 487.\nSo even if the clerk personally has absolute or qualified immunity from suit and\ndamages, that immunity does not foreclose an action against the City if the complaint\nadequately alleges an unconstitutional policy or custom and an unconstitutional act\nby the clerk as a city employee.\n\n The district court’s other rationale—that the clerk is a state government official\nwhose actions are not attributable to the City—is more complicated. Whether the\nclerk acts on behalf of the State, the City, or the County depends on the definition of\n\n -2-\n\fthe clerk’s official functions under relevant state law. McMillian v. Monroe County,\n520 U.S. 781, 786 (1997); Dean v. County of Gage, 807 F.3d 931, 942 (8th Cir.\n2015).\n\n The City defends the district court’s conclusion based on Amendment 80 to the\nArkansas Constitution. That Amendment, effective in 2001, vests the judicial power\nin the “Judicial Department of state government, consisting of a Supreme Court and\nother courts established by this Constitution.” Ark. Const. amend. 80, § 1. Another\nsection provides that “District Courts are established as the trial courts of limited\njurisdiction.” Id. § 7(A). The City maintains that because the Phillips County District\nCourt was part of the judicial department of state government, and the clerk was\nappointed by a judge of the district court, the clerk’s actions against Evans were\nattributable to the State, not to the City.\n\n Amendment 80, however, was not fully implemented immediately as to the\nPhillips County District Court. The Amendment granted the General Assembly “the\npower to establish jurisdiction of all courts . . . and the power to establish judicial\ncircuits and districts and the number of judges for Circuit Courts and District Courts.”\nId. § 10. Although the legislature provided in 2003 that Phillips County would have\na district court with elected judges, Ark. Code Ann. § 16-17-917 (West 2003), the\njudges were not state employees. As of 2008, the “structure of limited jurisdiction\ncourts consist[ed] of a combination of full-time and part-time district and city courts\nfunded by city and county governments[.]” Ark. Code Ann. § 16-17-1101(2) (West\n2008).\n\n The General Assembly then established “a pilot program that create[d] a\nlimited number of state-funded pilot state district court judgeships,” id. § 16-17-\n1101(8), but Phillips County was not included. Id. § 16-17-1103. Judges outside the\npilot program, like those in Phillips County, continued to be employees of the cities\nor counties, or both, that they served. Id. § 16-17-1107. It was not until 2017, after\n\n -3-\n\fthe events alleged in Evans’s complaint, that Phillips County was one of several\ncounties that were “reorganized as state district courts and served by a state district\ncourt judge.” Ark. Code Ann. § 16-17-1112(a)(1) (West 2015). Until then, Phillips\nCounty was among those counties that were “served by local district courts.” Id.\nDuring the relevant period, state law gave cities and counties authority to set salaries\nfor the district court clerk, see Ark. Code Ann. § 16-17-211(b) (West 2012), and the\ncomplaint alleges that employees of the court were hired by the City and paid by the\nCity, with salaries accounted for in the City’s annual budget.\n\n The district court resolved the case on a motion to dismiss, so the record has\nnot been developed with respect to the clerk’s duties and responsibilities, the source\nof the clerk’s pay, or the degree of control that state or local officials, respectively,\nexercised over the clerk. See McMillian, 520 U.S. at 789-93. At this stage of the\nproceeding, however, we conclude that the complaint states at least a plausible claim\nthat the clerk was a city official at the time of the alleged wrongdoing, in which case\nthe City could be accountable for actions of the clerk that establish or carry out an\nunconstitutional policy or custom of the municipality. We therefore conclude that the\ncase should not have been dismissed for failure to state a claim on the grounds\nspecified by the district court. We express no view on whether the complaint\notherwise is sufficient to state a claim against the City.\n\n The judgment is reversed and the case is remanded for further proceedings. It\nis therefore unnecessary to address the district court’s denial of Evans’s post-\njudgment motion to amend her complaint.\n ______________________________\n\n\n\n\n -4-\n[END_CASE]", "role": "user" } ]
4,581,207	Adam Joseph WINARSKE, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Adam Winarske v. United States	2019-01-14	17-2367	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2367\n ___________________________\n\n Adam Joseph Winarske\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: October 18, 2018\n Filed: January 14, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Adam Joseph Winarske appeals the district court’s1 denial of his second motion\nto vacate his mandatory minimum fifteen-year sentence under the Armed Career\n\n\n 1\n The Honorable Daniel L. Hovland, Chief Judge, United States District Court\nfor the District of North Dakota.\n\fCriminal Act (“ACCA”), arguing that his prior North Dakota burglary convictions are\nnot “violent felonies” as defined in the ACCA. See 18 U.S.C. § 924(e). Reviewing\nthe denial of a successive motion for relief under 28 U.S.C. § 2255 de novo, we\naffirm.\n\n The ACCA defines “violent felony” to include a felony that “is burglary, arson,\nor extortion [the “enumerated-offenses clause”] or otherwise involves conduct that\npresents a serious potential risk of physical injury to another [the “residual clause”].\n18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Supreme Court has construed the\nword “burglary” in its generic sense, that is, as meaning “any crime, regardless of its\nexact definition or label, having the basic elements of unlawful or unprivileged entry\ninto, or remaining in, a building or structure, with intent to commit a crime.” Taylor\nv. United States, 495 U.S. 575, 599 (1990). Under the applicable North Dakota\nstatute, a person is guilty of felony burglary (Class B or class C) if he -\n\n willfully enters or surreptitiously remains in a building or occupied\n structure, or a separately secured or occupied portion thereof, when at\n the time the premises are not open to the public and the actor is not\n licensed, invited, or otherwise privileged to enter or remain as the case\n may be, with intent to commit a crime therein.\n\nN.D. Cent. Code § 12.1-22-02(1). “Occupied structure” is defined to mean “a\nstructure or vehicle [w]here any person lives or carries on business or other calling;\nor [w]hich is used for overnight accommodation of persons . . . regardless of whether\na person is actually present.” § 12.1-22-06(4).\n\n In March 2012, Winarske pleaded guilty to being a felon in possession of a\nfirearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report\nnoted that Winarske had more than seven prior felony convictions, including five\nburglary convictions, and stated that he “is an armed career criminal.” At sentencing,\nWinarske did not object to this determination. The district court, noting his “multiple\n\n -2-\n\fburglary convictions,” found that Winarske had at least three prior “violent felony”\nconvictions and imposed the ACCA’s mandatory minimum sentence of fifteen years\nin prison. We affirmed the conviction. United States v. Winarske, 715 F.3d 1063\n(8th Cir. 2013), cert. denied, 472 U.S. 1003 (2014).\n\n In February 2015, Winarske filed a motion to vacate his sentence under 28\nU.S.C. § 2255, arguing that he was improperly sentenced as an armed career criminal\nbecause the Supreme Court’s recent decision in Descamps v. United States, 570 U.S.\n254 (2013), established that North Dakota’s burglary statute criminalizes more than\ngeneric burglary. The district court denied the motion, concluding (I) “the elements\nof Winarske’s three class C felony convictions for burglary are the same as those of\nthe generic definition of burglary,”2 and (ii) Descamps did not alter this analysis\nbecause the elements of class C burglary “are listed as an undivided set of elements.”\nUnited States v. Winarske, No. 1:11-cr-86-1, Order Denying . . . Habeas Relief at 6-7\n(D.N.D. July 14, 2015). Winarske did not appeal this ruling.\n\n In June 2016, we granted Winarske’s application for authorization to file a\nsecond or successive § 2255 motion to assert a claim that he was improperly\nsentenced as an armed career criminal. Congress has severely limited successive\n§ 2255 motions for post-conviction relief. We may not authorize such a motion\nunless it is based on “a new rule of constitutional law, made retroactive to cases on\ncollateral review by the Supreme Court, that was previously unavailable.”\n§ 2255(h)(2). Here, Winarske’s application properly relied on Johnson v. United\nStates, 135 S. Ct. 2551 (2015), a decision the Supreme Court made retroactive to\ncases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). But\nsimply citing a new rule is not enough. “The new rule must have a nexus to the right\n\n 2\n When Winarske was sentenced, many cases had held that burglary was a\nviolent felony under the ACCA’s enumerated-offenses clause. See, e.g., United\nStates v. Webster, 636 F.3d 916, 920 (8th Cir. 2011) (Maryland burglary); United\nStates v. Sonczalla, 561 F.3d 842, 845-46 (8th Cir. 2009) (Minnesota burglary).\n\n -3-\n\fasserted in the motion.” Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir.\n2016). Thus, even if authorization was properly granted, § 2244(b)(2)(A) requires\ndismissal of Winarske’s successive motion, unless the claim in fact relies on a new\nrule of constitutional law, made retroactive to cases on collateral review by the\nSupreme Court, that was previously unavailable. See Walker v. United States, 900\nF.3d 1012, 1014 & n.2 (8th Cir. 2018).\n\n Johnson held that the ACCA’s residual clause was void for vagueness. The\nresidual clause was not an issue when Winarske was sentenced as an armed career\ncriminal, or when he challenged that determination in his first § 2255 motion. Rather,\nthe question was whether his class C North Dakota burglary convictions were for\ngeneric burglary and therefore fell within the ACCA’s enumerated-offenses clause.\nIn arguing his second § 2255 motion to the district court, Winarske again argued that\nhis burglary convictions no longer qualify as violent felonies because they do not fall\nwithin the enumerated offenses clause, relying now on Mathis v. United States, 136\nS. Ct. 2243 (2016), as well as Descamps. The district court again rejected this\nargument on the merits and granted a certificate of appealability. United States v.\nWinarske, No. 1:11-cr-86-1, 2017 WL 1743550 (D.N.D. May 4, 2017).\n\n On appeal, Winarske argues that Mathis established that the phrase “building\nor occupied structure” in North Dakota’s burglary statute sets forth alternative means\nof committing the offense, not alternative elements of different offenses. Therefore,\nthe North Dakota statute is overbroad because “occupied structure” is defined to\ninclude vehicles “where any person lives or carries on business or other calling,” and\ngeneric burglary does not include burglary of any vehicle.3 We decline to consider\nthe merits of this enumerated-offenses-clause issue for three reasons.\n\n 3\n This assertion is contrary to the Supreme Court’s recent decision in United\nStates v. Stitt, 139 S. Ct. 399 (2018), which may put in doubt our decision construing\nthe North Dakota burglary statute in United States v. Kinney, 888 F.3d 360, 363-65\n(8th Cir. 2018). We need not decide that issue here.\n\n -4-\n\f First, the new rule in Johnson has no nexus to this claim. See 135 S. Ct. at\n2563 (“Today’s decision does not call into question application of the Act to the four\nenumerated offenses . . . .”); Stanley v. United States, 827 F.3d 562, 564 (7th Cir.\n2016) (“the sole holding of Johnson is that the [ACCA’s] residual clause is invalid”).\nSecond, neither Mathis nor Descamps announced “a new rule of law, made\nretroactive to cases on collateral review by the Supreme Court,” as § 2255(h)(2) and\n§ 2244(b)(2)(A) require. Rather, “these decisions are simply the Supreme Court’s\nlatest interpretations of the categorical approach the Court has long applied in\ndeciding whether a prior conviction is an ACCA violent felony.” Martin v. United\nStates, 904 F.3d 594, 597 (8th Cir. 2018), citing Mathis, 136 S. Ct. at 2257, and\nDescamps, 570 U.S. at 260. Third, in denying Winarske’s first § 2255 motion, the\ndistrict court held that his three class C felony burglary convictions fell within the\nACCA’s enumerated offenses clause. “A claim presented in a second or successive\nhabeas corpus application under section 2254 that was presented in a prior application\nshall be dismissed.” 28 U.S.C. § 2244(b)(1); see In re Baptiste, 828 F.3d 1337, 1339\n(11th Cir. 2016), citing cases applying § 2244(b)(1) to successive § 2255 motions.\n\n For these reasons, the district court properly denied Winarske’s successive\n§ 2255 motion. The Order of the district court dated May 4, 2017, is affirmed.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358460/", "author_raw": "LOKEN, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581207/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Adam Joseph WINARSKE, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2367\n ___________________________\n\n Adam Joseph Winarske\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: October 18, 2018\n Filed: January 14, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Adam Joseph Winarske appeals the district court’s1 denial of his second motion\nto vacate his mandatory minimum fifteen-year sentence under the Armed Career\n\n\n 1\n The Honorable Daniel L. Hovland, Chief Judge, United States District Court\nfor the District of North Dakota.\n\fCriminal Act (“ACCA”), arguing that his prior North Dakota burglary convictions are\nnot “violent felonies” as defined in the ACCA. See 18 U.S.C. § 924(e). Reviewing\nthe denial of a successive motion for relief under 28 U.S.C. § 2255 de novo, we\naffirm.\n\n The ACCA defines “violent felony” to include a felony that “is burglary, arson,\nor extortion [the “enumerated-offenses clause”] or otherwise involves conduct that\npresents a serious potential risk of physical injury to another [the “residual clause”].\n18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Supreme Court has construed the\nword “burglary” in its generic sense, that is, as meaning “any crime, regardless of its\nexact definition or label, having the basic elements of unlawful or unprivileged entry\ninto, or remaining in, a building or structure, with intent to commit a crime.” Taylor\nv. United States, 495 U.S. 575, 599 (1990). Under the applicable North Dakota\nstatute, a person is guilty of felony burglary (Class B or class C) if he -\n\n willfully enters or surreptitiously remains in a building or occupied\n structure, or a separately secured or occupied portion thereof, when at\n the time the premises are not open to the public and the actor is not\n licensed, invited, or otherwise privileged to enter or remain as the case\n may be, with intent to commit a crime therein.\n\nN.D. Cent. Code § 12.1-22-02(1). “Occupied structure” is defined to mean “a\nstructure or vehicle [w]here any person lives or carries on business or other calling;\nor [w]hich is used for overnight accommodation of persons . . . regardless of whether\na person is actually present.” § 12.1-22-06(4).\n\n In March 2012, Winarske pleaded guilty to being a felon in possession of a\nfirearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report\nnoted that Winarske had more than seven prior felony convictions, including five\nburglary convictions, and stated that he “is an armed career criminal.” At sentencing,\nWinarske did not object to this determination. The district court, noting his “multiple\n\n -2-\n\fburglary convictions,” found that Winarske had at least three prior “violent felony”\nconvictions and imposed the ACCA’s mandatory minimum sentence of fifteen years\nin prison. We affirmed the conviction. United States v. Winarske, 715 F.3d 1063\n(8th Cir. 2013), cert. denied, 472 U.S. 1003 (2014).\n\n In February 2015, Winarske filed a motion to vacate his sentence under 28\nU.S.C. § 2255, arguing that he was improperly sentenced as an armed career criminal\nbecause the Supreme Court’s recent decision in Descamps v. United States, 570 U.S.\n254 (2013), established that North Dakota’s burglary statute criminalizes more than\ngeneric burglary. The district court denied the motion, concluding (I) “the elements\nof Winarske’s three class C felony convictions for burglary are the same as those of\nthe generic definition of burglary,”2 and (ii) Descamps did not alter this analysis\nbecause the elements of class C burglary “are listed as an undivided set of elements.”\nUnited States v. Winarske, No. 1:11-cr-86-1, Order Denying . . . Habeas Relief at 6-7\n(D.N.D. July 14, 2015). Winarske did not appeal this ruling.\n\n In June 2016, we granted Winarske’s application for authorization to file a\nsecond or successive § 2255 motion to assert a claim that he was improperly\nsentenced as an armed career criminal. Congress has severely limited successive\n§ 2255 motions for post-conviction relief. We may not authorize such a motion\nunless it is based on “a new rule of constitutional law, made retroactive to cases on\ncollateral review by the Supreme Court, that was previously unavailable.”\n§ 2255(h)(2). Here, Winarske’s application properly relied on Johnson v. United\nStates, 135 S. Ct. 2551 (2015), a decision the Supreme Court made retroactive to\ncases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). But\nsimply citing a new rule is not enough. “The new rule must have a nexus to the right\n\n 2\n When Winarske was sentenced, many cases had held that burglary was a\nviolent felony under the ACCA’s enumerated-offenses clause. See, e.g., United\nStates v. Webster, 636 F.3d 916, 920 (8th Cir. 2011) (Maryland burglary); United\nStates v. Sonczalla, 561 F.3d 842, 845-46 (8th Cir. 2009) (Minnesota burglary).\n\n -3-\n\fasserted in the motion.” Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir.\n2016). Thus, even if authorization was properly granted, § 2244(b)(2)(A) requires\ndismissal of Winarske’s successive motion, unless the claim in fact relies on a new\nrule of constitutional law, made retroactive to cases on collateral review by the\nSupreme Court, that was previously unavailable. See Walker v. United States, 900\nF.3d 1012, 1014 & n.2 (8th Cir. 2018).\n\n Johnson held that the ACCA’s residual clause was void for vagueness. The\nresidual clause was not an issue when Winarske was sentenced as an armed career\ncriminal, or when he challenged that determination in his first § 2255 motion. Rather,\nthe question was whether his class C North Dakota burglary convictions were for\ngeneric burglary and therefore fell within the ACCA’s enumerated-offenses clause.\nIn arguing his second § 2255 motion to the district court, Winarske again argued that\nhis burglary convictions no longer qualify as violent felonies because they do not fall\nwithin the enumerated offenses clause, relying now on Mathis v. United States, 136\nS. Ct. 2243 (2016), as well as Descamps. The district court again rejected this\nargument on the merits and granted a certificate of appealability. United States v.\nWinarske, No. 1:11-cr-86-1, 2017 WL 1743550 (D.N.D. May 4, 2017).\n\n On appeal, Winarske argues that Mathis established that the phrase “building\nor occupied structure” in North Dakota’s burglary statute sets forth alternative means\nof committing the offense, not alternative elements of different offenses. Therefore,\nthe North Dakota statute is overbroad because “occupied structure” is defined to\ninclude vehicles “where any person lives or carries on business or other calling,” and\ngeneric burglary does not include burglary of any vehicle.3 We decline to consider\nthe merits of this enumerated-offenses-clause issue for three reasons.\n\n 3\n This assertion is contrary to the Supreme Court’s recent decision in United\nStates v. Stitt, 139 S. Ct. 399 (2018), which may put in doubt our decision construing\nthe North Dakota burglary statute in United States v. Kinney, 888 F.3d 360, 363-65\n(8th Cir. 2018). We need not decide that issue here.\n\n -4-\n\f First, the new rule in Johnson has no nexus to this claim. See 135 S. Ct. at\n2563 (“Today’s decision does not call into question application of the Act to the four\nenumerated offenses . . . .”); Stanley v. United States, 827 F.3d 562, 564 (7th Cir.\n2016) (“the sole holding of Johnson is that the [ACCA’s] residual clause is invalid”).\nSecond, neither Mathis nor Descamps announced “a new rule of law, made\nretroactive to cases on collateral review by the Supreme Court,” as § 2255(h)(2) and\n§ 2244(b)(2)(A) require. Rather, “these decisions are simply the Supreme Court’s\nlatest interpretations of the categorical approach the Court has long applied in\ndeciding whether a prior conviction is an ACCA violent felony.” Martin v. United\nStates, 904 F.3d 594, 597 (8th Cir. 2018), citing Mathis, 136 S. Ct. at 2257, and\nDescamps, 570 U.S. at 260. Third, in denying Winarske’s first § 2255 motion, the\ndistrict court held that his three class C felony burglary convictions fell within the\nACCA’s enumerated offenses clause. “A claim presented in a second or successive\nhabeas corpus application under section 2254 that was presented in a prior application\nshall be dismissed.” 28 U.S.C. § 2244(b)(1); see In re Baptiste, 828 F.3d 1337, 1339\n(11th Cir. 2016), citing cases applying § 2244(b)(1) to successive § 2255 motions.\n\n For these reasons, the district court properly denied Winarske’s successive\n§ 2255 motion. The Order of the district court dated May 4, 2017, is affirmed.\n ______________________________\n\n\n\n\n -5-\n[END_CASE]", "role": "user" } ]
4,581,544	Louis J. PETERSON, D.C., ON BEHALF OF Patients E, I, K, L, N, P, Q and R, and on Behalf of All Others Similarly Situated, Plaintiff-Appellee Lutz Surgical Partners, PLLC; New Life Chiropractic, PC, Plaintiffs v. UNITEDHEALTH GROUP INC.; United HealthCare Services, Inc.; United Healthcare Insurance Company; United Healthcare Service LLC, Defendants-Appellants Riverview Health Institute, on Its Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff-Appellee v. UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare Insurance Company; Optum, Inc., Defendants-Appellants Secretary of Labor, Amicus on Behalf of Appellees	Peterson Ex Rel. E, I, K, L, N, P, Q & R v. UnitedHealth Grp. Inc.	2019-01-15	17-1744	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Melloy, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1744\n ___________________________\n\n Louis J. Peterson, D.C., on behalf of Patients E, I, K, L, N, P, Q and R, and on\n behalf of all others similarly situated\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n Lutz Surgical Partners, PLLC; New Life Chiropractic, PC\n\n lllllllllllllllllllllPlaintiffs\n\n v.\n\n UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare\n Insurance Company; United Healthcare Service LLC\n\n lllllllllllllllllllllDefendants - Appellants\n\n ------------------------------\n\nRiverview Health Institute, on its own behalf and on behalf of all others similarly situated\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare\n Insurance Company; Optum, Inc.\n\n lllllllllllllllllllllDefendants - Appellants\n\n ------------------------------\n\f Secretary of Labor\n\n lllllllllllllllllllllAmicus on Behalf of Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: May 15, 2018\n Filed: January 15, 2019\n ____________\n\nBefore SHEPHERD, MELLOY, and GRASZ, Circuit Judges.\n ____________\n\n\nGRASZ, Circuit Judge.\n\n\n United1 administers thousands of health insurance plans. In the course of\nprocessing millions of claims for benefits, United at times erroneously overpays\nservice providers. United can generally recover these overpayments from “in-\nnetwork” providers because it has agreements with those providers that allow it to\n“offset” the overpayment by withholding the overpaid amount from subsequent\npayments to that provider. In 2007, United implemented an aggregate payment and\nrecovery procedure in which it began to offset overpayments made to\n“out-of-network” providers, even where the overpayment was made from one plan\nand the offset taken from a payment by a different plan, a practice known as cross-\nplan offsetting.\n\n\n\n 1\n We refer to defendants UnitedHealth Group Inc., United HealthCare Services,\nInc., United Healthcare Insurance Company, United Healthcare Service LLC, and\nOptum, Inc. collectively as “United.”\n\n -2-\n\f The named plaintiffs in these consolidated class action cases are out-of-\nnetwork medical providers who United intentionally failed to fully pay for services\nrendered to United plan beneficiaries in order to offset overpayments to the same\nproviders from other United administered plans. The plaintiffs, litigating under the\nEmployee Retirement Income Security Act (“ERISA”) on behalf of their patients, the\nplan beneficiaries, claim the relevant plan documents do not authorize United to\nengage in cross-plan offsetting. The district court2 agreed and entered partial\nsummary judgment to the plaintiffs on the issue of liability. United appealed the\nsummary judgment order. We affirm.\n\n I. Background\n\n United describes itself as “the nation’s leading health and well-being\ncompany.” The United-administered health insurance plans at issue here are\ngoverned by ERISA as “employee welfare benefit plans.” 29 U.S.C. § 1002(1).\nMany of these plans are self-insured, meaning the plan sponsor (often an employer)\nfunds the plan while United administers it. United also administers fully-insured\nplans, which it both funds and administers.\n\n In 2007, United instituted its new aggregate payment and recovery procedure\nthat included cross-plan offsetting. Class actions were filed in 2014 by Dr. Louis J.\nPeterson and in 2015 by Riverview Health Institute, each challenging United’s\npractice of cross-plan offsetting. Dr. Peterson sued as an authorized representative\nof his patients. Riverview sued pursuant to an assignment of rights in its patient\nagreement. United moved to dismiss Riverview’s action, in part because many of the\nplans contained provisions prohibiting assignments. The district court denied the\nmotion. The district court consolidated the two class actions for purposes of\n\n\n 2\n The Honorable Patrick J. Schiltz, United States District Judge for the District\nof Minnesota.\n -3-\n\fdiscovery and as to summary judgment on whether the governing documents of the\nUnited-administered plans authorized cross-plan offsetting.\n\n United filed motions for summary judgment and Dr. Peterson and Riverview\nfiled motions for partial summary judgment on the issue of liability. The district\ncourt denied United’s motions and granted partial summary judgment to the plaintiffs.\nIt rejected United’s argument that Dr. Peterson lacked authority to sue as an\nauthorized representative of his patients. On the merits, the court reviewed the\nunderlying plan documents and concluded that, of those plans that did address\noffsetting, “all of those plans explicitly authorize same-plan offsetting; and not one\nof those plans explicitly authorizes cross-plan offsetting.” Applying the factors set\nforth by this Court in Finley v. Special Agents Mutual Benefit Association, Inc., 957\nF.2d 617, 621 (8th Cir. 1992), the district court concluded that United’s interpretation\nof the plan documents was not reasonable.\n\n The district court certified its summary judgment order for immediate appeal\nunder 28 U.S.C. § 1292(b) and this Court allowed United to appeal.\n\n II. Discussion\n\n We will first address whether United’s argument regarding the validity of\nRiverview’s assignments from its patients is within the scope of our appellate\njurisdiction in this interlocutory appeal under 28 U.S.C. § 1292(b) and whether Dr.\nPeterson is authorized to bring this action as a representative of his patients. We will\nthen address the merits of the summary judgment order.\n\n a. Appellate Jurisdiction and Standing\n\n United advances two arguments as to why it believes Riverview and Dr.\nPeterson are not authorized to bring these actions. It argues that Riverview lacks\n\n -4-\n\fstanding to proceed as an assignee of its patients’ claims because some of the relevant\nplan documents contain an enforceable anti-assignment provision. It also argues that\nDr. Peterson lacks standing3 because he did not sufficiently disclose a conflict of\ninterest with his patients, thus nullifying the agreements granting him the authority\nto act as their “authorized representative.” We conclude we lack appellate\njurisdiction to review the district court’s order regarding Riverview, but that Dr.\nPeterson does have standing.\n\n (i) Appellate Jurisdiction\n\n The district court certified its summary judgment order for interlocutory appeal\nunder 28 U.S.C. § 1292(b), which allows certification if “such order involves a\ncontrolling question of law as to which there is substantial ground for difference of\nopinion and that an immediate appeal from the order may materially advance the\nultimate termination of the litigation.” Prior to the certified summary judgment order,\nthe district court denied United’s motion to dismiss Riverview’s claim. This ruling\nwas alluded to in the district court’s summary judgment order when it noted in a\nfootnote that “Riverview brings its action as the assignee of its patients’ benefit\nclaims.” United asks this Court to review the district court’s order regarding the\nvalidity of Riverview’s assignment in this interlocutory appeal.\n\n\n\n\n 3\n While United’s brief is unclear on this point, it appears it is asserting that Dr.\nPeterson and Riverview lack so-called “statutory standing,” meaning they are not\nauthorized by ERISA to bring these claims. See generally Bank of Am. Corp. v. City\nof Miami, 137 S. Ct. 1296, 1302–03 (2017) (discussing statutory and constitutional\nstanding); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,\n125–28 (2014) (same). Having satisfied ourselves that Dr. Peterson and Riverview\nhave standing under Article III of the U.S. Constitution, we will focus our review on\nstatutory standing.\n -5-\n\f The Supreme Court has explained that in an appeal under § 1292(b), “ appellate\njurisdiction applies to the order certified to the court of appeals, and is not tied to the\nparticular question formulated by the district court.” Yamaha Motor Corp., U.S.A.\nv. Calhoun, 516 U.S. 199, 205 (1996). Thus, “[t]he court of appeals may not reach\nbeyond the certified order to address other orders made in the case.” Id. (citing\nUnited States v. Stanley, 483 U.S. 669, 677 (1987)). “But the appellate court may\naddress any issue fairly included within the certified order because ‘it is the order that\nis appealable, and not the controlling question identified by the district court.’” Id.\n(quoting 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d\ned.1995)). Thus, the question we face is whether the issue of the validity of\nRiverview’s assignments, decided in the district court’s prior order, is “fairly\nincluded” in the summary judgment order.\n\n An issue is “fairly included” in a certified order if it is “inextricably\nintertwined” with it. See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 176 (2d Cir.\n2009) (stating that in an interlocutory appeal of an order certified under § 1292(b),\nthe appellate court may review an issue decided in another order if it is inextricably\nintertwined with the certified order); 16 Wright & Miller, Fed. Prac. & Proc. § 3929\n(3d ed. 2018) (stating that when reviewing a certified order under § 1292(b), “[t]he\ncourt of appeals will not consider matters that were ruled upon in other orders, unless\na separate order is so inextricably intertwined that review of the certified order\nrequires review of both together.” (footnote omitted)); cf. Langford v. Norris, 614\nF.3d 445, 458–59 (8th Cir. 2010) (discussing pendent appellate jurisdiction). An\nissue is inextricably intertwined with a certified order only when resolving the issue\nin the certified order necessarily resolves that issue and the issue is “coterminous\nwith, or subsumed in, the [issue] before the court on interlocutory appeal.” Langford,\n614 F.3d at 458.\n\n Here, it is not necessary to rule on the validity of Riverview’s assignments in\norder to determine whether United is authorized under the plan documents to engage\n\n -6-\n\fin cross-plan offsetting — the issue in the certified summary judgment order. True,\nthe issue of the validity of Riverview’s assignments is in some sense antecedent to the\ncross-plan offsetting issue in that it could be dispositive of Riverview’s claim. But\nthe mere fact that a separate and discrete legal issue could be dispositive of a claim\nis not alone sufficient to render it “fairly included” in, or “inextricably intertwined”\nwith, the order subject to interlocutory review. See id. at 458–59. Our review of the\nsummary judgment order is not hampered by leaving this issue for appellate review\nafter a final judgment.\n\n (ii) ERISA Standing\n\n United argues that Dr. Peterson lacks standing because he cannot proceed as\nhis patients’ authorized representative. Specifically, it argues that he has not\nsufficiently disclosed a conflict of interest between himself and his patients. United\nargues that the alleged risk to Dr. Peterson’s patients, the plan beneficiaries, is that\na provider like Dr. Peterson would “balance bill” them, charging them for the amount\nUnited failed to pay as an offset for an overpayment. United argues that for Dr.\nPeterson to prevail, he must show that he has the right to balance bill his patients,\nthus creating a conflict between himself and his patients that he has not sufficiently\ndisclosed.\n\n ERISA authorizes civil actions to recover benefits due under a plan to be\nbrought by plan participants and beneficiaries. See 29 U.S.C. § 1132(a)(1).\nHealthcare providers are generally not authorized under ERISA to sue on their own\nbehalf, even if they are entitled to direct payment from the plan administrator by\nvirtue of the plan’s obligation to the patient and beneficiary, because the provider is\nnot itself a plan participant or beneficiary. See Grasso Enters., LLC v. Express\nScripts, Inc., 809 F.3d 1033, 1040 (8th Cir. 2016).\n\n\n\n\n -7-\n\f For a healthcare provider to sue under 29 U.S.C. § 1132, it must do so by virtue\nof an assignment from, or as a representative of, a beneficiary. See id. at 1039–41.\nWhere an agent or representative has a conflict of interest, the conflict must be fully\ndisclosed to the principal. See Wendt v. Fischer, 154 N.E. 303, 304 (N.Y. 1926)\n(Cardozo, J.) (“If dual interests are to be served, the disclosure to be effective must\nlay bare the truth, without ambiguity or reservation, in all its stark significance.”).4\n\n United’s argument fails for two reasons. First, it overstates the extent of any\npotential conflict of interest. Having United pay for the services provided by Dr.\nPeterson with money rather than with an offset would of course be in Dr. Peterson’s\ninterest and would also be in the patients’ interest (if it turns out the offset was not\na valid “payment” of their obligation to Dr. Peterson) or at least not be adverse to\ntheir interest (if it turns out the offset was valid payment). Thus, there is no\nmeaningful conflict between Dr. Peterson and his patients. Second, Dr. Peterson’s\ndisclosure of the supposed conflict of interest was sufficient. The engagement letter\nsigned by Dr. Peterson’s patients fairly and adequately explained United’s contention\nthat there was a conflict of interest. We conclude that Dr. Peterson is authorized to\nbring this action as a representative of his patients.\n\n\n\n 4\n The parties disagree about whether the validity of Dr. Peterson’s authorization\nto act as his patients’ authorized representative is governed by New York agency law\n(because Dr. Peterson practices in New York) or by federal law under ERISA.\nContrary to the appellees’ argument, the issue is not directly governed by 29 C.F.R.\n§ 2560.503–1(b), which provides that “claims procedures for a plan will be deemed\nto be reasonable only if . . . [t]he claims procedures do not preclude an authorized\nrepresentative of a claimant from acting on behalf of such claimant in pursuing a\nbenefit claim or appeal of an adverse benefit determination,” but which does not\ngovern whether and when a representative may represent a plan beneficiary in\nbringing a cause of action under 29 U.S.C. §1132. Because we see no substantive\ndifference in the two sources of law that would be dispositive here, we assume\nwithout deciding that the question is governed by New York law.\n -8-\n\f b. United’s Plan Interpretation\n\n At issue in this interlocutory appeal is the question of whether the plan\ndocuments allow United to engage in cross-plan offsetting. While there are many\ndifferent plans at issue here, with varying plan language, each plan grants United\nbroad authority to interpret and implement the plan. “Where an ERISA plan grants\nthe administrator discretion . . . to interpret the plan’s terms, courts must apply a\ndeferential abuse-of-discretion standard of review.” Wengert v. Rajendran, 886 F.3d\n725, 727 (8th Cir. 2018) (quoting Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050\n(8th Cir. 2011)).\n\n In reviewing administrators’ plan interpretations, we consider the following\nfactors:\n\n whether their interpretation is consistent with the goals of the Plan,\n whether their interpretation renders any language in the Plan\n meaningless or internally inconsistent, whether their interpretation\n conflicts with the substantive or procedural requirements of the ERISA\n statute, whether they have interpreted the words at issue consistently,\n and whether their interpretation is contrary to the clear language of the\n Plan.\n\nFinley, 957 F.2d at 621. While these non-exhaustive factors “inform our analysis,”\nthe ultimate question remains whether the plan interpretation is reasonable. King v.\nHartford Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005).\n\n Two points are key to our analysis. First, nothing in the plan documents even\ncomes close to authorizing cross-plan offsetting, the practice of not paying a benefit\ndue under one plan in order to recover an amount believed to be owed to another plan\nbecause of that other plan’s overpayment. We agree with the district court’s\nsummation that “not one of th[e] plans explicitly authorizes cross-plan offsetting.”\n\n\n -9-\n\fTo adopt United’s argument that the plan language granting it broad authority to\nadminister the plan is sufficient to authorize cross-plan offsetting would be akin to\nadopting a rule that anything not forbidden by the plan is permissible. Such an\napproach would undermine plan participants’ and beneficiaries’ ability to rely on plan\ndocuments to know what authority administrators do and do not have. It would also\nconflict with ERISA’s requirement that “[e]very employee benefit plan shall be\nestablished and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1).\nUnited’s assertion that it has the authority to engage in cross-plan offsetting can\nhardly be called an interpretation because it has virtually no basis in the text of the\nplan documents.5\n\n Second, the practice of cross-plan offsetting is in some tension with the\nrequirements of ERISA. While we need not decide here whether cross-plan offsetting\nnecessarily violates ERISA, at the very least it approaches the line of what is\npermissible. If such a practice was authorized by the plan documents, we would\nexpect much clearer language to that effect.\n\n ERISA provides that plan assets are to be held in trust and that plan\nadministrators are fiduciaries of the plan assets. 29 U.S.C. § 1002(21)(A) (stating\nthat with limited exception, “a person is a fiduciary with respect to a plan to the extent\n. . . he exercises any discretionary authority or discretionary control respecting\nmanagement of such plan or exercises any authority or control respecting\nmanagement or disposition of its assets.”); see also 29 U.S.C. §§ 1102–1104; Pegram\nv. Herdrich, 530 U.S. 211, 222–26 (2000). ERISA’s fiduciary duties “have the\n\n\n 5\n United relies on Quality Infusion Care, Inc. v. Health Care Service Corp., 628\nF.3d 725 (5th Cir. 2010), for the proposition that cross-plan offsetting is authorized\nby plan language that authorizes intra-plan offsetting. But Quality Infusion was not\nan ERISA case and we are not bound by its reasoning. See Duluth, Winnipeg & Pac.\nRy. Co. v. City of Orr, 529 F.3d 794, 798 (8th Cir. 2008) (stating that sister circuit\ndecisions are not binding on this Court).\n -10-\n\ffamiliar ring of their source in the common law of trusts.” Pegram, 530 U.S. at 224.\nSpecifically, with limited exception, a fiduciary must act in accordance with the plan\ndocuments, diversify investments, act prudently, and “discharge his duties with\nrespect to a plan solely in the interest of the participants and beneficiaries and . . . for\nthe exclusive purpose of . . . providing benefits to participants and their beneficiaries;\nand . . . defraying reasonable expenses of administering the plan.” 29 U.S.C.\n§ 1104(a)(1) (emphasis added).\n\n While administrators like United may happen to be fiduciaries of multiple\nplans, nevertheless “each plan is a separate entity” and a fiduciary’s duties run\nseparately to each plan. Standard Ins. Co. v. Saklad, 127 F.3d 1179, 1181 (9th Cir.\n1997). Cross-plan offsetting is in tension with this fiduciary duty because it arguably\namounts to failing to pay a benefit owed to a beneficiary under one plan in order to\nrecover money for the benefit of another plan. While this benefits the latter plan, it\nmay not benefit the former. It also may constitute a transfer of money from one plan\nto another in violation of ERISA’s “exclusive purpose” requirement. 29 U.S.C.\n§ 1104(a)(1).6\n\n Similarly to how we consider “whether [an] interpretation conflicts with the\nsubstantive or procedural requirements of the ERISA statute” in evaluating whether\na plan interpretation is reasonable, Finley, 957 F.2d at 621, we view interpretations\nthat authorize practices that push the boundaries of what ERISA permits with some\nskepticism. Regardless of whether cross-plan offsetting necessarily violates ERISA,\n\n\n 6\n We need not address the appellees’ argument that United is conflicted because\nit may recover overpayments from fully-insured plans (losses United would otherwise\nbear) by withholding payments from self-insured plans. Nor do we need to address\nUnited’s argument that any conflict of interest it may have is vitiated by virtue of the\nplan sponsors’ approval of cross-plan offsetting by giving their “negative consent,”\ni.e., by not opting out. United’s interpretation is not reasonable, regardless of whether\nit is conflicted.\n -11-\n\fit is questionable at the very least. Considering this, alongside the fact that there is\nno plan language — only broad, generic grants of administrative authority — that\nwould authorize the practice, leads us to conclude that United’s interpretation is not\nreasonable.\n\n III. Conclusion\n\n Because United’s interpretation of the plan documents is not reasonable, we\naffirm the district court’s grant of partial summary judgment to the plaintiffs.\n ______________________________\n\n\n\n\n -12-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358797/", "author_raw": "GRASZ, Circuit Judge."}]}	SHEPHERD	MELLOY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581544/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Louis J. PETERSON, D.C., ON BEHALF OF Patients E, I, K, L, N, P, Q and R, and on Behalf of All Others Similarly Situated, Plaintiff-Appellee Lutz Surgical Partners, PLLC; New Life Chiropractic, PC, Plaintiffs v. UNITEDHEALTH GROUP INC.; United HealthCare Services, Inc.; United Healthcare Insurance Company; United Healthcare Service LLC, Defendants-Appellants Riverview Health Institute, on Its Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff-Appellee v. UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare Insurance Company; Optum, Inc., Defendants-Appellants Secretary of Labor, Amicus on Behalf of Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1744\n ___________________________\n\n Louis J. Peterson, D.C., on behalf of Patients E, I, K, L, N, P, Q and R, and on\n behalf of all others similarly situated\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n Lutz Surgical Partners, PLLC; New Life Chiropractic, PC\n\n lllllllllllllllllllllPlaintiffs\n\n v.\n\n UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare\n Insurance Company; United Healthcare Service LLC\n\n lllllllllllllllllllllDefendants - Appellants\n\n ------------------------------\n\nRiverview Health Institute, on its own behalf and on behalf of all others similarly situated\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n UnitedHealth Group Inc.; United HealthCare Services, Inc.; United Healthcare\n Insurance Company; Optum, Inc.\n\n lllllllllllllllllllllDefendants - Appellants\n\n ------------------------------\n\f Secretary of Labor\n\n lllllllllllllllllllllAmicus on Behalf of Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: May 15, 2018\n Filed: January 15, 2019\n ____________\n\nBefore SHEPHERD, MELLOY, and GRASZ, Circuit Judges.\n ____________\n\n\nGRASZ, Circuit Judge.\n\n\n United1 administers thousands of health insurance plans. In the course of\nprocessing millions of claims for benefits, United at times erroneously overpays\nservice providers. United can generally recover these overpayments from “in-\nnetwork” providers because it has agreements with those providers that allow it to\n“offset” the overpayment by withholding the overpaid amount from subsequent\npayments to that provider. In 2007, United implemented an aggregate payment and\nrecovery procedure in which it began to offset overpayments made to\n“out-of-network” providers, even where the overpayment was made from one plan\nand the offset taken from a payment by a different plan, a practice known as cross-\nplan offsetting.\n\n\n\n 1\n We refer to defendants UnitedHealth Group Inc., United HealthCare Services,\nInc., United Healthcare Insurance Company, United Healthcare Service LLC, and\nOptum, Inc. collectively as “United.”\n\n -2-\n\f The named plaintiffs in these consolidated class action cases are out-of-\nnetwork medical providers who United intentionally failed to fully pay for services\nrendered to United plan beneficiaries in order to offset overpayments to the same\nproviders from other United administered plans. The plaintiffs, litigating under the\nEmployee Retirement Income Security Act (“ERISA”) on behalf of their patients, the\nplan beneficiaries, claim the relevant plan documents do not authorize United to\nengage in cross-plan offsetting. The district court2 agreed and entered partial\nsummary judgment to the plaintiffs on the issue of liability. United appealed the\nsummary judgment order. We affirm.\n\n I. Background\n\n United describes itself as “the nation’s leading health and well-being\ncompany.” The United-administered health insurance plans at issue here are\ngoverned by ERISA as “employee welfare benefit plans.” 29 U.S.C. § 1002(1).\nMany of these plans are self-insured, meaning the plan sponsor (often an employer)\nfunds the plan while United administers it. United also administers fully-insured\nplans, which it both funds and administers.\n\n In 2007, United instituted its new aggregate payment and recovery procedure\nthat included cross-plan offsetting. Class actions were filed in 2014 by Dr. Louis J.\nPeterson and in 2015 by Riverview Health Institute, each challenging United’s\npractice of cross-plan offsetting. Dr. Peterson sued as an authorized representative\nof his patients. Riverview sued pursuant to an assignment of rights in its patient\nagreement. United moved to dismiss Riverview’s action, in part because many of the\nplans contained provisions prohibiting assignments. The district court denied the\nmotion. The district court consolidated the two class actions for purposes of\n\n\n 2\n The Honorable Patrick J. Schiltz, United States District Judge for the District\nof Minnesota.\n -3-\n\fdiscovery and as to summary judgment on whether the governing documents of the\nUnited-administered plans authorized cross-plan offsetting.\n\n United filed motions for summary judgment and Dr. Peterson and Riverview\nfiled motions for partial summary judgment on the issue of liability. The district\ncourt denied United’s motions and granted partial summary judgment to the plaintiffs.\nIt rejected United’s argument that Dr. Peterson lacked authority to sue as an\nauthorized representative of his patients. On the merits, the court reviewed the\nunderlying plan documents and concluded that, of those plans that did address\noffsetting, “all of those plans explicitly authorize same-plan offsetting; and not one\nof those plans explicitly authorizes cross-plan offsetting.” Applying the factors set\nforth by this Court in Finley v. Special Agents Mutual Benefit Association, Inc., 957\nF.2d 617, 621 (8th Cir. 1992), the district court concluded that United’s interpretation\nof the plan documents was not reasonable.\n\n The district court certified its summary judgment order for immediate appeal\nunder 28 U.S.C. § 1292(b) and this Court allowed United to appeal.\n\n II. Discussion\n\n We will first address whether United’s argument regarding the validity of\nRiverview’s assignments from its patients is within the scope of our appellate\njurisdiction in this interlocutory appeal under 28 U.S.C. § 1292(b) and whether Dr.\nPeterson is authorized to bring this action as a representative of his patients. We will\nthen address the merits of the summary judgment order.\n\n a. Appellate Jurisdiction and Standing\n\n United advances two arguments as to why it believes Riverview and Dr.\nPeterson are not authorized to bring these actions. It argues that Riverview lacks\n\n -4-\n\fstanding to proceed as an assignee of its patients’ claims because some of the relevant\nplan documents contain an enforceable anti-assignment provision. It also argues that\nDr. Peterson lacks standing3 because he did not sufficiently disclose a conflict of\ninterest with his patients, thus nullifying the agreements granting him the authority\nto act as their “authorized representative.” We conclude we lack appellate\njurisdiction to review the district court’s order regarding Riverview, but that Dr.\nPeterson does have standing.\n\n (i) Appellate Jurisdiction\n\n The district court certified its summary judgment order for interlocutory appeal\nunder 28 U.S.C. § 1292(b), which allows certification if “such order involves a\ncontrolling question of law as to which there is substantial ground for difference of\nopinion and that an immediate appeal from the order may materially advance the\nultimate termination of the litigation.” Prior to the certified summary judgment order,\nthe district court denied United’s motion to dismiss Riverview’s claim. This ruling\nwas alluded to in the district court’s summary judgment order when it noted in a\nfootnote that “Riverview brings its action as the assignee of its patients’ benefit\nclaims.” United asks this Court to review the district court’s order regarding the\nvalidity of Riverview’s assignment in this interlocutory appeal.\n\n\n\n\n 3\n While United’s brief is unclear on this point, it appears it is asserting that Dr.\nPeterson and Riverview lack so-called “statutory standing,” meaning they are not\nauthorized by ERISA to bring these claims. See generally Bank of Am. Corp. v. City\nof Miami, 137 S. Ct. 1296, 1302–03 (2017) (discussing statutory and constitutional\nstanding); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,\n125–28 (2014) (same). Having satisfied ourselves that Dr. Peterson and Riverview\nhave standing under Article III of the U.S. Constitution, we will focus our review on\nstatutory standing.\n -5-\n\f The Supreme Court has explained that in an appeal under § 1292(b), “ appellate\njurisdiction applies to the order certified to the court of appeals, and is not tied to the\nparticular question formulated by the district court.” Yamaha Motor Corp., U.S.A.\nv. Calhoun, 516 U.S. 199, 205 (1996). Thus, “[t]he court of appeals may not reach\nbeyond the certified order to address other orders made in the case.” Id. (citing\nUnited States v. Stanley, 483 U.S. 669, 677 (1987)). “But the appellate court may\naddress any issue fairly included within the certified order because ‘it is the order that\nis appealable, and not the controlling question identified by the district court.’” Id.\n(quoting 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d\ned.1995)). Thus, the question we face is whether the issue of the validity of\nRiverview’s assignments, decided in the district court’s prior order, is “fairly\nincluded” in the summary judgment order.\n\n An issue is “fairly included” in a certified order if it is “inextricably\nintertwined” with it. See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 176 (2d Cir.\n2009) (stating that in an interlocutory appeal of an order certified under § 1292(b),\nthe appellate court may review an issue decided in another order if it is inextricably\nintertwined with the certified order); 16 Wright & Miller, Fed. Prac. & Proc. § 3929\n(3d ed. 2018) (stating that when reviewing a certified order under § 1292(b), “[t]he\ncourt of appeals will not consider matters that were ruled upon in other orders, unless\na separate order is so inextricably intertwined that review of the certified order\nrequires review of both together.” (footnote omitted)); cf. Langford v. Norris, 614\nF.3d 445, 458–59 (8th Cir. 2010) (discussing pendent appellate jurisdiction). An\nissue is inextricably intertwined with a certified order only when resolving the issue\nin the certified order necessarily resolves that issue and the issue is “coterminous\nwith, or subsumed in, the [issue] before the court on interlocutory appeal.” Langford,\n614 F.3d at 458.\n\n Here, it is not necessary to rule on the validity of Riverview’s assignments in\norder to determine whether United is authorized under the plan documents to engage\n\n -6-\n\fin cross-plan offsetting — the issue in the certified summary judgment order. True,\nthe issue of the validity of Riverview’s assignments is in some sense antecedent to the\ncross-plan offsetting issue in that it could be dispositive of Riverview’s claim. But\nthe mere fact that a separate and discrete legal issue could be dispositive of a claim\nis not alone sufficient to render it “fairly included” in, or “inextricably intertwined”\nwith, the order subject to interlocutory review. See id. at 458–59. Our review of the\nsummary judgment order is not hampered by leaving this issue for appellate review\nafter a final judgment.\n\n (ii) ERISA Standing\n\n United argues that Dr. Peterson lacks standing because he cannot proceed as\nhis patients’ authorized representative. Specifically, it argues that he has not\nsufficiently disclosed a conflict of interest between himself and his patients. United\nargues that the alleged risk to Dr. Peterson’s patients, the plan beneficiaries, is that\na provider like Dr. Peterson would “balance bill” them, charging them for the amount\nUnited failed to pay as an offset for an overpayment. United argues that for Dr.\nPeterson to prevail, he must show that he has the right to balance bill his patients,\nthus creating a conflict between himself and his patients that he has not sufficiently\ndisclosed.\n\n ERISA authorizes civil actions to recover benefits due under a plan to be\nbrought by plan participants and beneficiaries. See 29 U.S.C. § 1132(a)(1).\nHealthcare providers are generally not authorized under ERISA to sue on their own\nbehalf, even if they are entitled to direct payment from the plan administrator by\nvirtue of the plan’s obligation to the patient and beneficiary, because the provider is\nnot itself a plan participant or beneficiary. See Grasso Enters., LLC v. Express\nScripts, Inc., 809 F.3d 1033, 1040 (8th Cir. 2016).\n\n\n\n\n -7-\n\f For a healthcare provider to sue under 29 U.S.C. § 1132, it must do so by virtue\nof an assignment from, or as a representative of, a beneficiary. See id. at 1039–41.\nWhere an agent or representative has a conflict of interest, the conflict must be fully\ndisclosed to the principal. See Wendt v. Fischer, 154 N.E. 303, 304 (N.Y. 1926)\n(Cardozo, J.) (“If dual interests are to be served, the disclosure to be effective must\nlay bare the truth, without ambiguity or reservation, in all its stark significance.”).4\n\n United’s argument fails for two reasons. First, it overstates the extent of any\npotential conflict of interest. Having United pay for the services provided by Dr.\nPeterson with money rather than with an offset would of course be in Dr. Peterson’s\ninterest and would also be in the patients’ interest (if it turns out the offset was not\na valid “payment” of their obligation to Dr. Peterson) or at least not be adverse to\ntheir interest (if it turns out the offset was valid payment). Thus, there is no\nmeaningful conflict between Dr. Peterson and his patients. Second, Dr. Peterson’s\ndisclosure of the supposed conflict of interest was sufficient. The engagement letter\nsigned by Dr. Peterson’s patients fairly and adequately explained United’s contention\nthat there was a conflict of interest. We conclude that Dr. Peterson is authorized to\nbring this action as a representative of his patients.\n\n\n\n 4\n The parties disagree about whether the validity of Dr. Peterson’s authorization\nto act as his patients’ authorized representative is governed by New York agency law\n(because Dr. Peterson practices in New York) or by federal law under ERISA.\nContrary to the appellees’ argument, the issue is not directly governed by 29 C.F.R.\n§ 2560.503–1(b), which provides that “claims procedures for a plan will be deemed\nto be reasonable only if . . . [t]he claims procedures do not preclude an authorized\nrepresentative of a claimant from acting on behalf of such claimant in pursuing a\nbenefit claim or appeal of an adverse benefit determination,” but which does not\ngovern whether and when a representative may represent a plan beneficiary in\nbringing a cause of action under 29 U.S.C. §1132. Because we see no substantive\ndifference in the two sources of law that would be dispositive here, we assume\nwithout deciding that the question is governed by New York law.\n -8-\n\f b. United’s Plan Interpretation\n\n At issue in this interlocutory appeal is the question of whether the plan\ndocuments allow United to engage in cross-plan offsetting. While there are many\ndifferent plans at issue here, with varying plan language, each plan grants United\nbroad authority to interpret and implement the plan. “Where an ERISA plan grants\nthe administrator discretion . . . to interpret the plan’s terms, courts must apply a\ndeferential abuse-of-discretion standard of review.” Wengert v. Rajendran, 886 F.3d\n725, 727 (8th Cir. 2018) (quoting Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050\n(8th Cir. 2011)).\n\n In reviewing administrators’ plan interpretations, we consider the following\nfactors:\n\n whether their interpretation is consistent with the goals of the Plan,\n whether their interpretation renders any language in the Plan\n meaningless or internally inconsistent, whether their interpretation\n conflicts with the substantive or procedural requirements of the ERISA\n statute, whether they have interpreted the words at issue consistently,\n and whether their interpretation is contrary to the clear language of the\n Plan.\n\nFinley, 957 F.2d at 621. While these non-exhaustive factors “inform our analysis,”\nthe ultimate question remains whether the plan interpretation is reasonable. King v.\nHartford Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005).\n\n Two points are key to our analysis. First, nothing in the plan documents even\ncomes close to authorizing cross-plan offsetting, the practice of not paying a benefit\ndue under one plan in order to recover an amount believed to be owed to another plan\nbecause of that other plan’s overpayment. We agree with the district court’s\nsummation that “not one of th[e] plans explicitly authorizes cross-plan offsetting.”\n\n\n -9-\n\fTo adopt United’s argument that the plan language granting it broad authority to\nadminister the plan is sufficient to authorize cross-plan offsetting would be akin to\nadopting a rule that anything not forbidden by the plan is permissible. Such an\napproach would undermine plan participants’ and beneficiaries’ ability to rely on plan\ndocuments to know what authority administrators do and do not have. It would also\nconflict with ERISA’s requirement that “[e]very employee benefit plan shall be\nestablished and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1).\nUnited’s assertion that it has the authority to engage in cross-plan offsetting can\nhardly be called an interpretation because it has virtually no basis in the text of the\nplan documents.5\n\n Second, the practice of cross-plan offsetting is in some tension with the\nrequirements of ERISA. While we need not decide here whether cross-plan offsetting\nnecessarily violates ERISA, at the very least it approaches the line of what is\npermissible. If such a practice was authorized by the plan documents, we would\nexpect much clearer language to that effect.\n\n ERISA provides that plan assets are to be held in trust and that plan\nadministrators are fiduciaries of the plan assets. 29 U.S.C. § 1002(21)(A) (stating\nthat with limited exception, “a person is a fiduciary with respect to a plan to the extent\n. . . he exercises any discretionary authority or discretionary control respecting\nmanagement of such plan or exercises any authority or control respecting\nmanagement or disposition of its assets.”); see also 29 U.S.C. §§ 1102–1104; Pegram\nv. Herdrich, 530 U.S. 211, 222–26 (2000). ERISA’s fiduciary duties “have the\n\n\n 5\n United relies on Quality Infusion Care, Inc. v. Health Care Service Corp., 628\nF.3d 725 (5th Cir. 2010), for the proposition that cross-plan offsetting is authorized\nby plan language that authorizes intra-plan offsetting. But Quality Infusion was not\nan ERISA case and we are not bound by its reasoning. See Duluth, Winnipeg & Pac.\nRy. Co. v. City of Orr, 529 F.3d 794, 798 (8th Cir. 2008) (stating that sister circuit\ndecisions are not binding on this Court).\n -10-\n\ffamiliar ring of their source in the common law of trusts.” Pegram, 530 U.S. at 224.\nSpecifically, with limited exception, a fiduciary must act in accordance with the plan\ndocuments, diversify investments, act prudently, and “discharge his duties with\nrespect to a plan solely in the interest of the participants and beneficiaries and . . . for\nthe exclusive purpose of . . . providing benefits to participants and their beneficiaries;\nand . . . defraying reasonable expenses of administering the plan.” 29 U.S.C.\n§ 1104(a)(1) (emphasis added).\n\n While administrators like United may happen to be fiduciaries of multiple\nplans, nevertheless “each plan is a separate entity” and a fiduciary’s duties run\nseparately to each plan. Standard Ins. Co. v. Saklad, 127 F.3d 1179, 1181 (9th Cir.\n1997). Cross-plan offsetting is in tension with this fiduciary duty because it arguably\namounts to failing to pay a benefit owed to a beneficiary under one plan in order to\nrecover money for the benefit of another plan. While this benefits the latter plan, it\nmay not benefit the former. It also may constitute a transfer of money from one plan\nto another in violation of ERISA’s “exclusive purpose” requirement. 29 U.S.C.\n§ 1104(a)(1).6\n\n Similarly to how we consider “whether [an] interpretation conflicts with the\nsubstantive or procedural requirements of the ERISA statute” in evaluating whether\na plan interpretation is reasonable, Finley, 957 F.2d at 621, we view interpretations\nthat authorize practices that push the boundaries of what ERISA permits with some\nskepticism. Regardless of whether cross-plan offsetting necessarily violates ERISA,\n\n\n 6\n We need not address the appellees’ argument that United is conflicted because\nit may recover overpayments from fully-insured plans (losses United would otherwise\nbear) by withholding payments from self-insured plans. Nor do we need to address\nUnited’s argument that any conflict of interest it may have is vitiated by virtue of the\nplan sponsors’ approval of cross-plan offsetting by giving their “negative consent,”\ni.e., by not opting out. United’s interpretation is not reasonable, regardless of whether\nit is conflicted.\n -11-\n\fit is questionable at the very least. Considering this, alongside the fact that there is\nno plan language — only broad, generic grants of administrative authority — that\nwould authorize the practice, leads us to conclude that United’s interpretation is not\nreasonable.\n\n III. Conclusion\n\n Because United’s interpretation of the plan documents is not reasonable, we\naffirm the district court’s grant of partial summary judgment to the plaintiffs.\n ______________________________\n\n\n\n\n -12-\n[END_CASE]", "role": "user" } ]
4,581,941	Bruce G. SCHWARTZ, Plaintiff - Appellant v. Ardis BOGEN, Formerly Known as Ardis Schwartz Defendant - Appellee	Bruce Schwartz v. Ardis Bogen	2019-01-16	17-3812	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Shepherd, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3812\n ___________________________\n\n Bruce G. Schwartz\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Ardis Bogen, formerly known as Ardis Schwartz\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: November 14, 2018\n Filed: January 16, 2019\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Bruce Schwartz filed an action against Ardis Bogen, his ex-wife, alleging\nviolations of the anti-alienation provisions of the Employee Retirement Income\nSecurity Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., that arose from payments he\nmade to her for almost three decades. Bogen moved for dismissal on the ground of\n\fres judicata, and the district court1 dismissed the matter with prejudice. On appeal,\nSchwartz argues the district court erred in granting Bogen’s motion. Having\njurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\n\n I.\n\n Schwartz and Bogen entered into a marital property settlement agreement\n(Agreement) in New Jersey. The Agreement was incorporated into their final\njudgment of divorce (Judgment), which was entered in 1983, and provided, in relevant\npart, that if Bogen remarried after January 1, 1986, but in or before 1990, Schwartz\nwould pay Bogen, “as equitable distribution, a yearly sum equal to Twenty (20%)\npercent of [Schwartz]’s Basic Bell System Management Pension Plan . . . .” Schwartz\nretired in 1985, and Bogen remarried in 1989. Neither Schwartz nor Bogen made a\nrequest for a qualified domestic relations order (QDRO) at either time. From 1989\nthrough 2016, Schwartz made payments to Bogen using personal checks. Bogen\nnever received distribution or payment from the pension plan itself. Both reported the\npayments as alimony on their federal tax returns.\n\n In 2016, Schwartz contacted Bogen and told her he realized that, under the\nterms of the Agreement, he should have stopped making the alimony payments\nin 1995 because she had remarried. Bogen, through her attorney, responded that\nthe payments were not alimony but rather were an equitable distribution of the\npension plan. According to Schwartz’s complaint, Bogen’s attorney stated in a letter\nthat because the Judgment was entered before the effective date of the Retirement\nEquity Act of 1984 (REA), Pub. L. No. 98-397, 98 Stat. 1426 (1984), “the division\nof the pension was done without a QDRO.”\n\n\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota.\n\n -2-\n\f Bogen commenced an action for enforcement of her rights in New Jersey state\ncourt, requesting, among other things, that Schwartz be compelled to pay her 20% of\nhis pension plan in monthly installments. Schwartz argued that the relief Bogen\nsought was “contrary to Federal law.” Specifically, he argued that the anti-alienation\nprovisions of ERISA prohibited sharing his pension and entitled him to a refund of\nmoney already paid to Bogen. He also argued that there was no QDRO to divide his\npension and, without a QDRO, the pension plan could not be divided. He did not\nargue that the state court was without subject-matter jurisdiction to entertain the\nalleged ERISA violations.\n\n The state court made several rulings. First, it found that the doctrine of laches\nbarred Schwartz’s request for a refund of the money paid to Bogen since 1995.\n“Notwithstanding” this ruling, the state court then explained that “the issue of whether\nthese payments were alimony or intended as equitable distribution and the arguments\n[Schwartz] asserts regarding ERISA must be addressed, as [he] may have an ongoing\nobligation to pay [Bogen].” The court further found that the payments were an\nequitable distribution, not alimony. The court also found that while ERISA prohibits\nthe assignment or alienation of pension-plan benefits, it “was not intended to prevent\nthe assignment to a spouse or former spouse that is entitled to support,” citing New\nJersey case law. Schwartz did not appeal the state court’s judgment.\n\n Instead, Schwartz filed a complaint against Bogen in United States District\nCourt for the District of Minnesota, asserting two counts: recovery of payments in\nviolation of ERISA and the REA, and a declaration of federal preemption under the\naforementioned federal laws. Bogen moved, in relevant part, for dismissal on the\nground of res judicata. The district court granted Bogen’s motion. It concluded that\nres judicata applied because, among other things, the state court determined Bogen\nwas entitled to a portion of Schwartz’s pension, notwithstanding ERISA. The district\ncourt rejected Schwartz’s argument that res judicata did not apply because the state\ncourt was without jurisdiction to determine whether Bogen was entitled to a portion\n\n -3-\n\fof his pension. It concluded that state and federal courts have concurrent jurisdiction\nto determine whether a divorce decree, judgment, or order qualifies as a QDRO.\nWhether the state court “correctly determined that the prior order was an enforceable\nQDRO,” the district court explained, is irrelevant to the application of res judicata.\nAccordingly, the district court dismissed the matter with prejudice. This appeal\nfollowed.\n\n II.\n\n For the first time at oral argument, the parties addressed whether the\nRooker-Feldman doctrine, not res judicata, more appropriately applied to this case.\nUnder the doctrine, “lower federal courts are precluded from exercising appellate\njurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459,\n463 (2006) (per curiam). Because the doctrine “is jurisdictional, it may be addressed\nfor the first time on appeal and may be raised sua sponte.” Lemonds v. St. Louis\nCnty., 222 F.3d 488, 492 (8th Cir. 2000), abrogated on other grounds by Shelby Cnty.\nHealth Care Corp. v. S. Farm Bureau Cas. Ins. Co., 855 F.3d 836, 840-41 (8th Cir.),\ncert. denied sub nom. Ford v. Shelby Cnty. Health Care Corp., 138 S. Ct. 473 (2017).\nHowever, we need not address the application of the Rooker-Feldman doctrine in this\ncase because it is “permissible to bypass Rooker–Feldman to reach a preclusion\nquestion that disposes of a case.” In re Athens/Alpha Gas Corp., 715 F.3d 230, 235\n(8th Cir. 2013). Accordingly, we only address the application of res judicata in this\nappeal.\n\n A.\n\n Schwartz argues the district court erred in granting Bogen’s motion to dismiss\non the basis of res judicata. “We review de novo the district court’s grant of a motion\nto dismiss for failure to state a claim based on res judicata . . . [and] accept the\nplaintiff’s factual allegations as true.” Laase v. Cnty. of Isanti, 638 F.3d 853, 856 (8th\n\n -4-\n\fCir. 2011) (internal quotation marks and citations omitted). In determining whether\nres judicata applies, “[t]he law of the forum that rendered the first judgment controls\nthe res judicata analysis.” Id. (internal citations and quotation marks omitted).\nAccordingly, as the district court correctly found, New Jersey law governs the res\njudicata analysis in this case.\n\n B.\n\n Under New Jersey law, “[t]he term ‘res judicata’ refers broadly to the\ncommon-law doctrine barring relitigation of claims or issues that have already been\nadjudicated.” Velasquez v. Franz, 589 A.2d 143, 147 (N.J. 1991). “In essence, the\ndoctrine of res judicata provides that a cause of action between parties that has been\nfinally determined on the merits by a tribunal having jurisdiction cannot be relitigated\nby those parties or their privies in a new proceeding.” Id. (citing Roberts v.\nGoldner, 397 A.2d 1090, 1091 (N.J. 1979)). Res judicata “applies not only to matters\nactually determined in an earlier action, but to all relevant matters that could have\nbeen so determined,” but were not. Watkins v. Resorts Int’l Hotel & Casino, Inc., 591\nA.2d 592, 599 (N.J. 1991) (citing Culver v. Ins. Co. of N. Am., 559 A.2d 400, 406\n(N.J. 1989)).\n\n Schwartz argues res judicata does not apply because the state court was without\njurisdiction to address violations of ERISA and the REA because Congress has given\nexclusive jurisdiction to the federal district courts to address such violations. In other\nwords, the state court could not and did not rule on the violations. Moreover,\nSchwartz argues res judicata does not apply because “the ERISA violations claims did\nnot arise prior to and were not litigated in New Jersey. To the contrary, it was the\nNew Jersey Order that ripened the ERISA violations claims.” Appellant’s Br. 34, 38-\n39. We disagree.\n\n\n\n\n -5-\n\f First, Schwartz concedes he did not raise his lack-of-jurisdiction argument\nbefore the state court, and he does not claim that he was prevented from asserting this\nargument in the earlier proceeding. He also concedes that he did not appeal the state\ncourt’s judgment, though he could have. Additionally, he does not dispute that the\nstate court’s judgment was final and on the merits. “[T]he principles of [r]es judicata\napply to all types of issues including issues of jurisdiction over the subject matter as\nwell as the person.” State v. Am. Can Co., 198 A.2d 753, 757\n(N.J. 1964) (citing Treinies v. Sunshine Mining Co., 308 U.S. 66, 78 (1939)). “A\nparty that has had an opportunity to litigate the question of subject-matter jurisdiction\nmay not . . . reopen that question in a collateral attack upon an adverse judgment.”\nIns. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,\n702 n.9 (1982); see also Grey v. New Jersey, 91 F. App’x 747, 750-51 (3d Cir.\n2003) (explaining that res judicata barred litigant from contesting New Jersey state\ncourt’s subject-matter jurisdiction for the first time in federal court because she had\na “full and fair opportunity” to do so in state court, “but chose not to do so”). And\nhere, the New Jersey state court unquestionably had jurisdiction to hear Bogen’s attempt to\nenforce the Agreement. There are “res judicata consequences” to a “final, unappealed\njudgment on the merits . . . .” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,\n398 (1981); cf. Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 68 (1st Cir. 2008)\n(“In the final analysis, Geiger rejected the opportunity to challenge the QDROs at both\nthe state trial and appellate levels. That he did so on the mistaken belief that the\nfederal courts had exclusive jurisdiction over those challenges does not alter the\nfinality of those judgments, nor their preclusive effect.”).\n\n Second, a cursory glance at the state court’s judgment demonstrates that\nSchwartz fully participated in the state court proceeding; indeed, he raised the alleged\nERISA violations before the state court, the same court he now claims was without\njurisdiction to address the violations. In state court, he argued that the relief Bogen\nsought was “contrary to Federal law.” Specifically, Schwartz argued that ERISA\n“clearly prohibits any such intent to assign or alienate the benefits provided under his\n\n -6-\n\fpension plan”; that “both ERISA and the Internal Revenue Code . . . did not allow the\nbenefits provided under the plan to be assigned or alienated and there could not legally\nbe a division of his pension plan”; and that “the pension plan itself also prevented the\nassignment or alienation of the benefits provide [sic] to him.” Schwartz also argued\nthat, under ERISA and the REA, his “pension plan could not be divided without a\nQDRO” and that “there was no QDRO in place dividing the pension plan.”\nSchwartz’s arguments before the state court, as evidenced by the state court’s\njudgment, are prima facie evidence that the ERISA violations “ripened” well before\nthe entry of the state court’s judgment, contrary to Schwartz’s position. See Grey,\n91 F. App’x at 750-51 (explaining that res judicata barred litigant from contesting\nNew Jersey state court’s subject-matter jurisdiction for the first time in federal court\nbecause she “did not dispute jurisdiction until she had lost on the merits at every level\nof the New Jersey court system”). He is precluded from getting a second bite of the\napple in federal court.\n\n Schwartz also argues that “[b]ecause Bogen was not a participant or beneficiary\nunder the Plan, she could not properly bring 29 U.S.C. § 1132(a)(3) claims in New\nJersey.” Appellant’s Br. 32. But she never did. Rather, she sought to enforce her\nrights and Schwartz’s obligations under the terms of the Agreement. Nothing in the\nstate court’s judgment suggests it treated Bogen’s motion as a civil-enforcement\naction pursuant to 29 U.S.C. §§ 1132(a)(1)(B) or 1132(a)(3). In fact, if Schwartz\nbelieved Bogen was actually bringing a civil-enforcement action under § 1132(a), he\ncould have sought removal to federal court, arguing that Bogen’s motion was both\ncompletely preempted by ERISA and “displaced by [ERISA’s] civil enforcement\nprovisions . . . .” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). However,\nSchwartz neither sought removal after Bogen filed in state court nor appealed the state\ncourt’s judgment. Nor did Schwartz expressly raise his preemption claim in state\ncourt even though state courts are asked to determine, with regularity, “whether a state\nlaw cause of action falls to ERISA’s preemption provision . . . .” Mack v.\nKuckenmeister, 619 F.3d 1010, 1019 (9th Cir. 2010).\n\n -7-\n\f Accordingly, based on our reading of New Jersey law, the district court did not\nerr in dismissing the matter on the basis of res judicata.\n\n III.\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359194/", "author_raw": "SHEPHERD, Circuit Judge."}]}	COLLOTON	SHEPHERD	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581941/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Bruce G. SCHWARTZ, Plaintiff - Appellant v. Ardis BOGEN, Formerly Known as Ardis Schwartz Defendant - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3812\n ___________________________\n\n Bruce G. Schwartz\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Ardis Bogen, formerly known as Ardis Schwartz\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: November 14, 2018\n Filed: January 16, 2019\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Bruce Schwartz filed an action against Ardis Bogen, his ex-wife, alleging\nviolations of the anti-alienation provisions of the Employee Retirement Income\nSecurity Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., that arose from payments he\nmade to her for almost three decades. Bogen moved for dismissal on the ground of\n\fres judicata, and the district court1 dismissed the matter with prejudice. On appeal,\nSchwartz argues the district court erred in granting Bogen’s motion. Having\njurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\n\n I.\n\n Schwartz and Bogen entered into a marital property settlement agreement\n(Agreement) in New Jersey. The Agreement was incorporated into their final\njudgment of divorce (Judgment), which was entered in 1983, and provided, in relevant\npart, that if Bogen remarried after January 1, 1986, but in or before 1990, Schwartz\nwould pay Bogen, “as equitable distribution, a yearly sum equal to Twenty (20%)\npercent of [Schwartz]’s Basic Bell System Management Pension Plan . . . .” Schwartz\nretired in 1985, and Bogen remarried in 1989. Neither Schwartz nor Bogen made a\nrequest for a qualified domestic relations order (QDRO) at either time. From 1989\nthrough 2016, Schwartz made payments to Bogen using personal checks. Bogen\nnever received distribution or payment from the pension plan itself. Both reported the\npayments as alimony on their federal tax returns.\n\n In 2016, Schwartz contacted Bogen and told her he realized that, under the\nterms of the Agreement, he should have stopped making the alimony payments\nin 1995 because she had remarried. Bogen, through her attorney, responded that\nthe payments were not alimony but rather were an equitable distribution of the\npension plan. According to Schwartz’s complaint, Bogen’s attorney stated in a letter\nthat because the Judgment was entered before the effective date of the Retirement\nEquity Act of 1984 (REA), Pub. L. No. 98-397, 98 Stat. 1426 (1984), “the division\nof the pension was done without a QDRO.”\n\n\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota.\n\n -2-\n\f Bogen commenced an action for enforcement of her rights in New Jersey state\ncourt, requesting, among other things, that Schwartz be compelled to pay her 20% of\nhis pension plan in monthly installments. Schwartz argued that the relief Bogen\nsought was “contrary to Federal law.” Specifically, he argued that the anti-alienation\nprovisions of ERISA prohibited sharing his pension and entitled him to a refund of\nmoney already paid to Bogen. He also argued that there was no QDRO to divide his\npension and, without a QDRO, the pension plan could not be divided. He did not\nargue that the state court was without subject-matter jurisdiction to entertain the\nalleged ERISA violations.\n\n The state court made several rulings. First, it found that the doctrine of laches\nbarred Schwartz’s request for a refund of the money paid to Bogen since 1995.\n“Notwithstanding” this ruling, the state court then explained that “the issue of whether\nthese payments were alimony or intended as equitable distribution and the arguments\n[Schwartz] asserts regarding ERISA must be addressed, as [he] may have an ongoing\nobligation to pay [Bogen].” The court further found that the payments were an\nequitable distribution, not alimony. The court also found that while ERISA prohibits\nthe assignment or alienation of pension-plan benefits, it “was not intended to prevent\nthe assignment to a spouse or former spouse that is entitled to support,” citing New\nJersey case law. Schwartz did not appeal the state court’s judgment.\n\n Instead, Schwartz filed a complaint against Bogen in United States District\nCourt for the District of Minnesota, asserting two counts: recovery of payments in\nviolation of ERISA and the REA, and a declaration of federal preemption under the\naforementioned federal laws. Bogen moved, in relevant part, for dismissal on the\nground of res judicata. The district court granted Bogen’s motion. It concluded that\nres judicata applied because, among other things, the state court determined Bogen\nwas entitled to a portion of Schwartz’s pension, notwithstanding ERISA. The district\ncourt rejected Schwartz’s argument that res judicata did not apply because the state\ncourt was without jurisdiction to determine whether Bogen was entitled to a portion\n\n -3-\n\fof his pension. It concluded that state and federal courts have concurrent jurisdiction\nto determine whether a divorce decree, judgment, or order qualifies as a QDRO.\nWhether the state court “correctly determined that the prior order was an enforceable\nQDRO,” the district court explained, is irrelevant to the application of res judicata.\nAccordingly, the district court dismissed the matter with prejudice. This appeal\nfollowed.\n\n II.\n\n For the first time at oral argument, the parties addressed whether the\nRooker-Feldman doctrine, not res judicata, more appropriately applied to this case.\nUnder the doctrine, “lower federal courts are precluded from exercising appellate\njurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459,\n463 (2006) (per curiam). Because the doctrine “is jurisdictional, it may be addressed\nfor the first time on appeal and may be raised sua sponte.” Lemonds v. St. Louis\nCnty., 222 F.3d 488, 492 (8th Cir. 2000), abrogated on other grounds by Shelby Cnty.\nHealth Care Corp. v. S. Farm Bureau Cas. Ins. Co., 855 F.3d 836, 840-41 (8th Cir.),\ncert. denied sub nom. Ford v. Shelby Cnty. Health Care Corp., 138 S. Ct. 473 (2017).\nHowever, we need not address the application of the Rooker-Feldman doctrine in this\ncase because it is “permissible to bypass Rooker–Feldman to reach a preclusion\nquestion that disposes of a case.” In re Athens/Alpha Gas Corp., 715 F.3d 230, 235\n(8th Cir. 2013). Accordingly, we only address the application of res judicata in this\nappeal.\n\n A.\n\n Schwartz argues the district court erred in granting Bogen’s motion to dismiss\non the basis of res judicata. “We review de novo the district court’s grant of a motion\nto dismiss for failure to state a claim based on res judicata . . . [and] accept the\nplaintiff’s factual allegations as true.” Laase v. Cnty. of Isanti, 638 F.3d 853, 856 (8th\n\n -4-\n\fCir. 2011) (internal quotation marks and citations omitted). In determining whether\nres judicata applies, “[t]he law of the forum that rendered the first judgment controls\nthe res judicata analysis.” Id. (internal citations and quotation marks omitted).\nAccordingly, as the district court correctly found, New Jersey law governs the res\njudicata analysis in this case.\n\n B.\n\n Under New Jersey law, “[t]he term ‘res judicata’ refers broadly to the\ncommon-law doctrine barring relitigation of claims or issues that have already been\nadjudicated.” Velasquez v. Franz, 589 A.2d 143, 147 (N.J. 1991). “In essence, the\ndoctrine of res judicata provides that a cause of action between parties that has been\nfinally determined on the merits by a tribunal having jurisdiction cannot be relitigated\nby those parties or their privies in a new proceeding.” Id. (citing Roberts v.\nGoldner, 397 A.2d 1090, 1091 (N.J. 1979)). Res judicata “applies not only to matters\nactually determined in an earlier action, but to all relevant matters that could have\nbeen so determined,” but were not. Watkins v. Resorts Int’l Hotel & Casino, Inc., 591\nA.2d 592, 599 (N.J. 1991) (citing Culver v. Ins. Co. of N. Am., 559 A.2d 400, 406\n(N.J. 1989)).\n\n Schwartz argues res judicata does not apply because the state court was without\njurisdiction to address violations of ERISA and the REA because Congress has given\nexclusive jurisdiction to the federal district courts to address such violations. In other\nwords, the state court could not and did not rule on the violations. Moreover,\nSchwartz argues res judicata does not apply because “the ERISA violations claims did\nnot arise prior to and were not litigated in New Jersey. To the contrary, it was the\nNew Jersey Order that ripened the ERISA violations claims.” Appellant’s Br. 34, 38-\n39. We disagree.\n\n\n\n\n -5-\n\f First, Schwartz concedes he did not raise his lack-of-jurisdiction argument\nbefore the state court, and he does not claim that he was prevented from asserting this\nargument in the earlier proceeding. He also concedes that he did not appeal the state\ncourt’s judgment, though he could have. Additionally, he does not dispute that the\nstate court’s judgment was final and on the merits. “[T]he principles of [r]es judicata\napply to all types of issues including issues of jurisdiction over the subject matter as\nwell as the person.” State v. Am. Can Co., 198 A.2d 753, 757\n(N.J. 1964) (citing Treinies v. Sunshine Mining Co., 308 U.S. 66, 78 (1939)). “A\nparty that has had an opportunity to litigate the question of subject-matter jurisdiction\nmay not . . . reopen that question in a collateral attack upon an adverse judgment.”\nIns. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,\n702 n.9 (1982); see also Grey v. New Jersey, 91 F. App’x 747, 750-51 (3d Cir.\n2003) (explaining that res judicata barred litigant from contesting New Jersey state\ncourt’s subject-matter jurisdiction for the first time in federal court because she had\na “full and fair opportunity” to do so in state court, “but chose not to do so”). And\nhere, the New Jersey state court unquestionably had jurisdiction to hear Bogen’s attempt to\nenforce the Agreement. There are “res judicata consequences” to a “final, unappealed\njudgment on the merits . . . .” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,\n398 (1981); cf. Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 68 (1st Cir. 2008)\n(“In the final analysis, Geiger rejected the opportunity to challenge the QDROs at both\nthe state trial and appellate levels. That he did so on the mistaken belief that the\nfederal courts had exclusive jurisdiction over those challenges does not alter the\nfinality of those judgments, nor their preclusive effect.”).\n\n Second, a cursory glance at the state court’s judgment demonstrates that\nSchwartz fully participated in the state court proceeding; indeed, he raised the alleged\nERISA violations before the state court, the same court he now claims was without\njurisdiction to address the violations. In state court, he argued that the relief Bogen\nsought was “contrary to Federal law.” Specifically, Schwartz argued that ERISA\n“clearly prohibits any such intent to assign or alienate the benefits provided under his\n\n -6-\n\fpension plan”; that “both ERISA and the Internal Revenue Code . . . did not allow the\nbenefits provided under the plan to be assigned or alienated and there could not legally\nbe a division of his pension plan”; and that “the pension plan itself also prevented the\nassignment or alienation of the benefits provide [sic] to him.” Schwartz also argued\nthat, under ERISA and the REA, his “pension plan could not be divided without a\nQDRO” and that “there was no QDRO in place dividing the pension plan.”\nSchwartz’s arguments before the state court, as evidenced by the state court’s\njudgment, are prima facie evidence that the ERISA violations “ripened” well before\nthe entry of the state court’s judgment, contrary to Schwartz’s position. See Grey,\n91 F. App’x at 750-51 (explaining that res judicata barred litigant from contesting\nNew Jersey state court’s subject-matter jurisdiction for the first time in federal court\nbecause she “did not dispute jurisdiction until she had lost on the merits at every level\nof the New Jersey court system”). He is precluded from getting a second bite of the\napple in federal court.\n\n Schwartz also argues that “[b]ecause Bogen was not a participant or beneficiary\nunder the Plan, she could not properly bring 29 U.S.C. § 1132(a)(3) claims in New\nJersey.” Appellant’s Br. 32. But she never did. Rather, she sought to enforce her\nrights and Schwartz’s obligations under the terms of the Agreement. Nothing in the\nstate court’s judgment suggests it treated Bogen’s motion as a civil-enforcement\naction pursuant to 29 U.S.C. §§ 1132(a)(1)(B) or 1132(a)(3). In fact, if Schwartz\nbelieved Bogen was actually bringing a civil-enforcement action under § 1132(a), he\ncould have sought removal to federal court, arguing that Bogen’s motion was both\ncompletely preempted by ERISA and “displaced by [ERISA’s] civil enforcement\nprovisions . . . .” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). However,\nSchwartz neither sought removal after Bogen filed in state court nor appealed the state\ncourt’s judgment. Nor did Schwartz expressly raise his preemption claim in state\ncourt even though state courts are asked to determine, with regularity, “whether a state\nlaw cause of action falls to ERISA’s preemption provision . . . .” Mack v.\nKuckenmeister, 619 F.3d 1010, 1019 (9th Cir. 2010).\n\n -7-\n\f Accordingly, based on our reading of New Jersey law, the district court did not\nerr in dismissing the matter on the basis of res judicata.\n\n III.\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -8-\n[END_CASE]", "role": "user" } ]
4,583,370	UNITED STATES of America, Plaintiff - Appellee v. Jon Henri BRYANT, Sr., Defendant - Appellant	United States v. Jon Bryant, Sr.	2019-01-22	17-3523	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Loken, Erickson", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3523\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jon Henri Bryant, Sr.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: October 25, 2018\n Filed: January 22, 2019\n ____________\n\nBefore WOLLMAN, LOKEN, and ERICKSON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\n Jon Henri Bryant, Sr., pleaded guilty to kidnapping in violation of 18 U.S.C.\n§ 1201(a)(1). The district court1 imposed a 360-month sentence. We affirm.\n\n\n 1\n The Honorable Karen E. Schreier, United States District Judge for the District\nof South Dakota.\n\f On the morning of October 25, 2016, Christine Woods drove her children to\nschool in Sioux Falls, South Dakota, and returned to her apartment to find her garage\ndoor open and her remote opener unable to close it. As she stepped out of her car,\nBryant, her ex-boyfriend, emerged from the garage. Bryant struck Woods several\ntimes, forcibly put her into the trunk of her car, and told her that he was going to kill\nher. Before being placed into the trunk, Woods was able to call 911 and then slip her\ncell phone into her purse. After Bryant began driving, Woods told the dispatch\noperator that she feared Bryant was going to kill her. The operator was able to ping\nWoods’s phone and later Bryant’s phone to determine their location. Bryant then\nstopped the car, opened the trunk, and took Woods’s phone from her, terminating the\ncall. Bryant drove Woods out of Sioux Falls, took the interstate through the\nsouthwest corner of Minnesota, and finally stopped at an abandoned farmstead near\nGarretson, South Dakota.\n\n There, Bryant removed Woods from the trunk and placed her in the passenger’s\nseat. Woods noticed that Bryant had brought two rolls of duct tape, and when she\nasked Bryant about them, he continued to threaten her life. Law enforcement soon\narrived, whereupon Bryant became angry and continued his assault, at one point\nstrangling Woods to the point of unconsciousness. He then drove off with Woods,\nleading the officers on a crash-ending chase through an adjacent bean field. The\nofficers apprehended Bryant and took Woods into protective custody.\n\n At Bryant’s sentencing hearing, the district court heard testimony and adopted\nthe facts as stated in the presentence report (PSR), with some modifications. Section\n2A4.1(a) of the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines) provides the\nbase offense level for kidnapping, but also includes a cross-reference that applies if\na victim was kidnapped in connection with another offense. The cross-reference\ndirects the court to apply the base offense level of the other offense and add 4 levels\nfor the kidnapping. U.S.S.G. § 2A4.1(b)(7)(A). The district court determined that\n\n -2-\n\fBryant kidnapped Woods while committing attempted murder, which has a base\noffense level of 33. U.S.S.G. § 2A2.1(a)(1). After adding 4 levels for the\nkidnapping, the court applied a 4-level enhancement for life-threatening bodily injury,\nU.S.S.G. § 2A2.1(b)(1)(A), a 2-level enhancement for reckless endangerment,\nU.S.S.G. § 3C1.2, and a 2-level reduction for acceptance of responsibility, U.S.S.G.\n§ 3E1.1(a). Bryant’s adjusted offense level totaled 41, and his Advisory Guidelines\nsentencing range was 360 months’ to life imprisonment. Bryant objected to this\ncalculation, arguing that the court lacked evidence of his intent to murder Woods and\nthat Woods did not suffer a life-threatening bodily injury. He also moved for\ndownward departures and variances due to his age of 61 years and his poor mental\nand physical condition. The district court overruled these objections, denied his\nrequests, and sentenced him to 360 months’ imprisonment.\n\n Bryant contends that his sentence is procedurally and substantively\nunreasonable. We first consider whether the district court committed procedural\nerror, such as an improper Guidelines calculation or a sentence based on clearly\nerroneous facts, “review[ing] the district court’s factual findings for clear error and\nits application of the guidelines de novo.” United States v. Hairy Chin, 850 F.3d 398,\n402 (8th Cir. 2017) (per curiam) (quoting United States v. Barker, 556 F.3d 682, 689\n(8th Cir. 2009)). If we find no error, we review the sentence for substantive\nreasonableness. Id.\n\n Bryant argues that the district court procedurally erred when it applied the\ncross-reference to attempted murder. He claims that the court’s finding that he\nintended to kill Woods was clearly erroneous and that it violated his Sixth\nAmendment right to have every element of his offense determined beyond a\nreasonable doubt. We conclude that the application of the cross-reference to\nattempted murder was appropriate and that the court’s factual determination did not\nviolate Bryant’s Sixth Amendment rights.\n\n\n\n -3-\n\f Section 2A2.1(a)(1) provides a base offense level of 33 “if the object of the\noffense would have constituted first degree murder.” Murder “committed in the\nperpetration of . . . kidnapping . . . is murder in the first degree.” 18 U.S.C. § 1111(a).\nAttempt requires both “(1) an intent to engage in criminal conduct, and (2) conduct\nconstituting a ‘substantial step’ towards the commission of the substantive offense\nwhich strongly corroborates the actor’s criminal intent.” United States v. Joyce, 693\nF.2d 838, 841 (8th Cir. 1982). Bryant does not dispute that he placed Woods in the\ntrunk of the car, that he told her multiple times that he was going to kill her, that he\nstocked the car with two rolls of duct tape, and that he drove her to an abandoned\nfarmstead. Once there, he strangled her to the point of unconsciousness. Based on\nthese facts, we find no clear error in the court’s determination that Bryant intended\nto kill Woods and took a substantial step towards doing so. We also conclude that\nthe application of the cross-reference did not violate Bryant’s Sixth Amendment\nrights because it neither increased the penalty for kidnapping beyond the statutory\nmaximum nor increased any mandatory minimum. See United States v. Davis, 753\nF.3d 1361, 1361 (8th Cir. 2014) (per curiam).\n\n Bryant next argues that the court clearly erred when it determined that Woods\nsuffered a life-threatening bodily injury, which the Guidelines define as one\n“involving a substantial risk of death; loss or substantial impairment of the function\nof a bodily member, organ, or mental faculty that is likely to be permanent; or an\nobvious disfigurement that is likely to be permanent.” U.S.S.G. § 1B1.1 cmt. n.1(J)\n(2016). Bryant contends that the court lacked sufficient evidence to find that Woods\nlost consciousness or that any unconsciousness was sufficient to qualify as a life-\nthreatening injury.\n\n The district court did not clearly err in determining that Bryant had strangled\nWoods to the point of unconsciousness. The PSR and the sentencing hearing\ntestimony indicate that Woods told an agent that she became unconscious after Bryant\nstarted choking her; that she suffered petechial hemorrhages from blood vessels that\n\n -4-\n\fruptured when Bryant choked her; that such hemorrhages are consistent with losing\nconsciousness; that Woods exhibited external bruising and swelling; and that Bryant\ntold his mother that he saw Woods’s eyes roll back in her head while he choked her.\n\n We also conclude that the court did not err in determining that Woods’s\ninjuries justified the application of the 4-level enhancement under U.S.S.G.\n§ 2A2.1(b)(1)(A). Dr. Kenneth Snell, a forensic pathologist testifying on behalf of\nthe government, explained that Woods’s physical injuries were consistent with\nasphyxia and estimated that Woods would have been unconscious for at least ten to\nfifteen seconds. He testified that asphyxiation for longer periods of time can cause\nirreversible brain damage and death and concluded that Woods faced a substantial\nrisk of death when she lost consciousness. Bryant argues that Woods’s injuries do\nnot justify the enhancement because she fully recovered from all injuries suffered.\nBut injuries resulting in a substantial risk of death need not be permanent. See, e.g.,\nUnited States v. Tindall, 519 F.3d 1057, 1064 (10th Cir. 2008) (“That the injury is\nultimately cured does not answer whether the injury was ‘life-threatening’ when\ninflicted.”). We find no error in the court’s conclusion that Woods faced a substantial\nrisk of death when she was strangled to the point of unconsciousness, which qualifies\nas a life-threatening bodily injury sufficient to warrant the enhancement.\n\n Bryant’s double-counting arguments similarly fail. Double-counting at\nsentencing occurs “when one part of the Guidelines is applied to increase a\ndefendant’s punishment on account of a kind of harm that has already been fully\naccounted for by application of another part of the Guidelines.” United States v.\nStrong, 826 F.3d 1109, 1116 (8th Cir. 2016) (quoting United States v. Hipenbecker,\n115 F.3d 581, 583 (8th Cir. 1997)). In other words, a court impermissibly double-\ncounts “when precisely the same aspect of a defendant’s conduct factors into his\nsentence in two separate ways.” Id. (quoting United States v. Waldner, 580 F.3d 699,\n707 (8th Cir. 2009)). “[D]ouble counting is permissible if the Sentencing\n\n\n\n -5-\n\fCommission so intended and each guideline section furthers an independent purpose\nof sentencing.” United States v. Chapman, 614 F.3d 810, 812 (8th Cir. 2010).\n\n Bryant argues that the court double-counted when it applied the base offense\nlevel for attempted murder and then added the 4-level enhancement for a life-\nthreatening bodily injury. He contends that attempted murders are by nature life-\nthreatening and that an enhancement based on the extent of the injury caused cannot\npermissibly increase the offense level for attempted murder. There was no double-\ncounting here, however, because an attempted murder does not necessarily result in\nlife-threatening injury.2 Cf. United States v. English, 329 F.3d 615, 618 (8th Cir.\n2003) (noting that “it would be unreasonable, and hence presumably contrary to the\nCommission’s intent,” to interpret an enhancement as applicable every time the\nunderlying felony was committed). The attempted murder offense level would have\napplied even had Woods not nearly died from the strangulation, so the injury\nenhancement and the attempted murder offense level thus “penalize distinct aspects\nof [Bryant’s] conduct and distinct harms.” Waldner, 580 F.3d at 707 (quoting United\nStates v. Smith, 516 F.3d 473, 476 (6th Cir. 2008)). Further, the Guidelines\nspecifically provide for enhancements based on the seriousness of the injury suffered.\nSee U.S.S.G. § 2A2.1(b) (allowing increases for “serious bodily injury” and “life-\nthreatening bodily injury”).\n\n We likewise disagree with Bryant’s contention that the court’s application of\nthe cross-reference to attempted murder constituted impermissible double-counting.\nNo double-counting occurred because the cross-reference required proof of attempted\n 2\n Bryant’s reliance on United States v. Spinelli, 352 F.3d 48 (2d Cir. 2003) is\nmisplaced. The Spinelli court remanded the case because the district court\nimproperly justified the life-threatening bodily injury enhancement by referring to the\nlife-threatening circumstances to which the victim was subjected and not the injury\nthat the victim sustained. Id. at 57-58. Here, the district court unambiguously\nsupported its application of the enhancement with evidence that Woods was strangled\nto the point of unconsciousness.\n\n -6-\n\fmurder and kidnapping, respectively, which are separate offenses with separate\nelements. Indeed, the Guidelines specifically prohibit the court from adding the\nadditional 4 levels for the kidnapping if the offense guideline for the “other offense”\nalready includes an adjustment for kidnapping. U.S.S.G. § 2A4.1(b)(7)(A). The\ndistrict court’s decision was thus procedurally sound.\n\n Finding no significant procedural error, we review the substantive\nreasonableness of Bryant’s sentence for abuse of discretion. Hairy Chin, 850 F.3d at\n403. “A district court abuses its discretion when it (1) fails to consider a relevant\nfactor that should have received significant weight; (2) gives significant weight to an\nimproper or irrelevant factor; or (3) considers only the appropriate factors but in\nweighing those factors commits a clear error of judgment.” Id. (quoting United States\nv. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). Bryant argues that his\nsentence is substantively unreasonable because the district court gave undue weight\nto prior acts that did not amount to criminal convictions and insufficient weight to his\nage, health, and mental condition.\n\n We conclude that Bryant’s 360-month sentence is not substantively\nunreasonable. The district court determined that a sentence at the bottom of the\nAdvisory Guidelines range was appropriate in light of the circumstances of the\nkidnapping and Bryant’s long history of controlling and abusive behavior towards\nwomen. Bryant does not dispute that several women have filed for protection orders\nagainst him in the past, nor is there any indication that Bryant lacked a meaningful\nopportunity to contest the facts as set forth in the PSR regarding his abusive history.\nWhile Bryant’s age and condition arguably may have justified a departure or variance,\nthe court acted within its discretion when it decided to impose a Guidelines-range\nsentence.\n\n The sentence is affirmed.\n\n ______________________________\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360623/", "author_raw": "WOLLMAN, Circuit Judge."}]}	WOLLMAN	LOKEN	ERICKSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583370/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Jon Henri BRYANT, Sr., Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3523\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jon Henri Bryant, Sr.\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: October 25, 2018\n Filed: January 22, 2019\n ____________\n\nBefore WOLLMAN, LOKEN, and ERICKSON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\n Jon Henri Bryant, Sr., pleaded guilty to kidnapping in violation of 18 U.S.C.\n§ 1201(a)(1). The district court1 imposed a 360-month sentence. We affirm.\n\n\n 1\n The Honorable Karen E. Schreier, United States District Judge for the District\nof South Dakota.\n\f On the morning of October 25, 2016, Christine Woods drove her children to\nschool in Sioux Falls, South Dakota, and returned to her apartment to find her garage\ndoor open and her remote opener unable to close it. As she stepped out of her car,\nBryant, her ex-boyfriend, emerged from the garage. Bryant struck Woods several\ntimes, forcibly put her into the trunk of her car, and told her that he was going to kill\nher. Before being placed into the trunk, Woods was able to call 911 and then slip her\ncell phone into her purse. After Bryant began driving, Woods told the dispatch\noperator that she feared Bryant was going to kill her. The operator was able to ping\nWoods’s phone and later Bryant’s phone to determine their location. Bryant then\nstopped the car, opened the trunk, and took Woods’s phone from her, terminating the\ncall. Bryant drove Woods out of Sioux Falls, took the interstate through the\nsouthwest corner of Minnesota, and finally stopped at an abandoned farmstead near\nGarretson, South Dakota.\n\n There, Bryant removed Woods from the trunk and placed her in the passenger’s\nseat. Woods noticed that Bryant had brought two rolls of duct tape, and when she\nasked Bryant about them, he continued to threaten her life. Law enforcement soon\narrived, whereupon Bryant became angry and continued his assault, at one point\nstrangling Woods to the point of unconsciousness. He then drove off with Woods,\nleading the officers on a crash-ending chase through an adjacent bean field. The\nofficers apprehended Bryant and took Woods into protective custody.\n\n At Bryant’s sentencing hearing, the district court heard testimony and adopted\nthe facts as stated in the presentence report (PSR), with some modifications. Section\n2A4.1(a) of the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines) provides the\nbase offense level for kidnapping, but also includes a cross-reference that applies if\na victim was kidnapped in connection with another offense. The cross-reference\ndirects the court to apply the base offense level of the other offense and add 4 levels\nfor the kidnapping. U.S.S.G. § 2A4.1(b)(7)(A). The district court determined that\n\n -2-\n\fBryant kidnapped Woods while committing attempted murder, which has a base\noffense level of 33. U.S.S.G. § 2A2.1(a)(1). After adding 4 levels for the\nkidnapping, the court applied a 4-level enhancement for life-threatening bodily injury,\nU.S.S.G. § 2A2.1(b)(1)(A), a 2-level enhancement for reckless endangerment,\nU.S.S.G. § 3C1.2, and a 2-level reduction for acceptance of responsibility, U.S.S.G.\n§ 3E1.1(a). Bryant’s adjusted offense level totaled 41, and his Advisory Guidelines\nsentencing range was 360 months’ to life imprisonment. Bryant objected to this\ncalculation, arguing that the court lacked evidence of his intent to murder Woods and\nthat Woods did not suffer a life-threatening bodily injury. He also moved for\ndownward departures and variances due to his age of 61 years and his poor mental\nand physical condition. The district court overruled these objections, denied his\nrequests, and sentenced him to 360 months’ imprisonment.\n\n Bryant contends that his sentence is procedurally and substantively\nunreasonable. We first consider whether the district court committed procedural\nerror, such as an improper Guidelines calculation or a sentence based on clearly\nerroneous facts, “review[ing] the district court’s factual findings for clear error and\nits application of the guidelines de novo.” United States v. Hairy Chin, 850 F.3d 398,\n402 (8th Cir. 2017) (per curiam) (quoting United States v. Barker, 556 F.3d 682, 689\n(8th Cir. 2009)). If we find no error, we review the sentence for substantive\nreasonableness. Id.\n\n Bryant argues that the district court procedurally erred when it applied the\ncross-reference to attempted murder. He claims that the court’s finding that he\nintended to kill Woods was clearly erroneous and that it violated his Sixth\nAmendment right to have every element of his offense determined beyond a\nreasonable doubt. We conclude that the application of the cross-reference to\nattempted murder was appropriate and that the court’s factual determination did not\nviolate Bryant’s Sixth Amendment rights.\n\n\n\n -3-\n\f Section 2A2.1(a)(1) provides a base offense level of 33 “if the object of the\noffense would have constituted first degree murder.” Murder “committed in the\nperpetration of . . . kidnapping . . . is murder in the first degree.” 18 U.S.C. § 1111(a).\nAttempt requires both “(1) an intent to engage in criminal conduct, and (2) conduct\nconstituting a ‘substantial step’ towards the commission of the substantive offense\nwhich strongly corroborates the actor’s criminal intent.” United States v. Joyce, 693\nF.2d 838, 841 (8th Cir. 1982). Bryant does not dispute that he placed Woods in the\ntrunk of the car, that he told her multiple times that he was going to kill her, that he\nstocked the car with two rolls of duct tape, and that he drove her to an abandoned\nfarmstead. Once there, he strangled her to the point of unconsciousness. Based on\nthese facts, we find no clear error in the court’s determination that Bryant intended\nto kill Woods and took a substantial step towards doing so. We also conclude that\nthe application of the cross-reference did not violate Bryant’s Sixth Amendment\nrights because it neither increased the penalty for kidnapping beyond the statutory\nmaximum nor increased any mandatory minimum. See United States v. Davis, 753\nF.3d 1361, 1361 (8th Cir. 2014) (per curiam).\n\n Bryant next argues that the court clearly erred when it determined that Woods\nsuffered a life-threatening bodily injury, which the Guidelines define as one\n“involving a substantial risk of death; loss or substantial impairment of the function\nof a bodily member, organ, or mental faculty that is likely to be permanent; or an\nobvious disfigurement that is likely to be permanent.” U.S.S.G. § 1B1.1 cmt. n.1(J)\n(2016). Bryant contends that the court lacked sufficient evidence to find that Woods\nlost consciousness or that any unconsciousness was sufficient to qualify as a life-\nthreatening injury.\n\n The district court did not clearly err in determining that Bryant had strangled\nWoods to the point of unconsciousness. The PSR and the sentencing hearing\ntestimony indicate that Woods told an agent that she became unconscious after Bryant\nstarted choking her; that she suffered petechial hemorrhages from blood vessels that\n\n -4-\n\fruptured when Bryant choked her; that such hemorrhages are consistent with losing\nconsciousness; that Woods exhibited external bruising and swelling; and that Bryant\ntold his mother that he saw Woods’s eyes roll back in her head while he choked her.\n\n We also conclude that the court did not err in determining that Woods’s\ninjuries justified the application of the 4-level enhancement under U.S.S.G.\n§ 2A2.1(b)(1)(A). Dr. Kenneth Snell, a forensic pathologist testifying on behalf of\nthe government, explained that Woods’s physical injuries were consistent with\nasphyxia and estimated that Woods would have been unconscious for at least ten to\nfifteen seconds. He testified that asphyxiation for longer periods of time can cause\nirreversible brain damage and death and concluded that Woods faced a substantial\nrisk of death when she lost consciousness. Bryant argues that Woods’s injuries do\nnot justify the enhancement because she fully recovered from all injuries suffered.\nBut injuries resulting in a substantial risk of death need not be permanent. See, e.g.,\nUnited States v. Tindall, 519 F.3d 1057, 1064 (10th Cir. 2008) (“That the injury is\nultimately cured does not answer whether the injury was ‘life-threatening’ when\ninflicted.”). We find no error in the court’s conclusion that Woods faced a substantial\nrisk of death when she was strangled to the point of unconsciousness, which qualifies\nas a life-threatening bodily injury sufficient to warrant the enhancement.\n\n Bryant’s double-counting arguments similarly fail. Double-counting at\nsentencing occurs “when one part of the Guidelines is applied to increase a\ndefendant’s punishment on account of a kind of harm that has already been fully\naccounted for by application of another part of the Guidelines.” United States v.\nStrong, 826 F.3d 1109, 1116 (8th Cir. 2016) (quoting United States v. Hipenbecker,\n115 F.3d 581, 583 (8th Cir. 1997)). In other words, a court impermissibly double-\ncounts “when precisely the same aspect of a defendant’s conduct factors into his\nsentence in two separate ways.” Id. (quoting United States v. Waldner, 580 F.3d 699,\n707 (8th Cir. 2009)). “[D]ouble counting is permissible if the Sentencing\n\n\n\n -5-\n\fCommission so intended and each guideline section furthers an independent purpose\nof sentencing.” United States v. Chapman, 614 F.3d 810, 812 (8th Cir. 2010).\n\n Bryant argues that the court double-counted when it applied the base offense\nlevel for attempted murder and then added the 4-level enhancement for a life-\nthreatening bodily injury. He contends that attempted murders are by nature life-\nthreatening and that an enhancement based on the extent of the injury caused cannot\npermissibly increase the offense level for attempted murder. There was no double-\ncounting here, however, because an attempted murder does not necessarily result in\nlife-threatening injury.2 Cf. United States v. English, 329 F.3d 615, 618 (8th Cir.\n2003) (noting that “it would be unreasonable, and hence presumably contrary to the\nCommission’s intent,” to interpret an enhancement as applicable every time the\nunderlying felony was committed). The attempted murder offense level would have\napplied even had Woods not nearly died from the strangulation, so the injury\nenhancement and the attempted murder offense level thus “penalize distinct aspects\nof [Bryant’s] conduct and distinct harms.” Waldner, 580 F.3d at 707 (quoting United\nStates v. Smith, 516 F.3d 473, 476 (6th Cir. 2008)). Further, the Guidelines\nspecifically provide for enhancements based on the seriousness of the injury suffered.\nSee U.S.S.G. § 2A2.1(b) (allowing increases for “serious bodily injury” and “life-\nthreatening bodily injury”).\n\n We likewise disagree with Bryant’s contention that the court’s application of\nthe cross-reference to attempted murder constituted impermissible double-counting.\nNo double-counting occurred because the cross-reference required proof of attempted\n 2\n Bryant’s reliance on United States v. Spinelli, 352 F.3d 48 (2d Cir. 2003) is\nmisplaced. The Spinelli court remanded the case because the district court\nimproperly justified the life-threatening bodily injury enhancement by referring to the\nlife-threatening circumstances to which the victim was subjected and not the injury\nthat the victim sustained. Id. at 57-58. Here, the district court unambiguously\nsupported its application of the enhancement with evidence that Woods was strangled\nto the point of unconsciousness.\n\n -6-\n\fmurder and kidnapping, respectively, which are separate offenses with separate\nelements. Indeed, the Guidelines specifically prohibit the court from adding the\nadditional 4 levels for the kidnapping if the offense guideline for the “other offense”\nalready includes an adjustment for kidnapping. U.S.S.G. § 2A4.1(b)(7)(A). The\ndistrict court’s decision was thus procedurally sound.\n\n Finding no significant procedural error, we review the substantive\nreasonableness of Bryant’s sentence for abuse of discretion. Hairy Chin, 850 F.3d at\n403. “A district court abuses its discretion when it (1) fails to consider a relevant\nfactor that should have received significant weight; (2) gives significant weight to an\nimproper or irrelevant factor; or (3) considers only the appropriate factors but in\nweighing those factors commits a clear error of judgment.” Id. (quoting United States\nv. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). Bryant argues that his\nsentence is substantively unreasonable because the district court gave undue weight\nto prior acts that did not amount to criminal convictions and insufficient weight to his\nage, health, and mental condition.\n\n We conclude that Bryant’s 360-month sentence is not substantively\nunreasonable. The district court determined that a sentence at the bottom of the\nAdvisory Guidelines range was appropriate in light of the circumstances of the\nkidnapping and Bryant’s long history of controlling and abusive behavior towards\nwomen. Bryant does not dispute that several women have filed for protection orders\nagainst him in the past, nor is there any indication that Bryant lacked a meaningful\nopportunity to contest the facts as set forth in the PSR regarding his abusive history.\nWhile Bryant’s age and condition arguably may have justified a departure or variance,\nthe court acted within its discretion when it decided to impose a Guidelines-range\nsentence.\n\n The sentence is affirmed.\n\n ______________________________\n\n -7-\n[END_CASE]", "role": "user" } ]
4,583,371	UNITED STATES of America, Plaintiff - Appellee v. Daniel Louis JACKSON, Defendant - Appellant	United States v. Daniel Jackson	2019-01-22	18-1482	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1482\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Daniel Louis Jackson\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: November 15, 2018\n Filed: January 22, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n In October 2017, a jury found Daniel Louis Jackson guilty of all counts of a\nfour-count Superseding Indictment for his role in a bank robbery in Hopkinton, Iowa:\n(1) Armed Bank Robbery and Aiding and Abetting Armed Bank Robbery; (2) Aiding\nand Abetting the Use, Carrying, and Brandishing of a Firearm During a Crime of\nViolence; (3) Conspiracy to Commit Armed Bank Robbery; and (4) Conspiracy to\nUse, Carry, and Brandish a Firearm During a Crime of Violence. Jackson appeals,\n\fchallenging (1) the admission of three Facebook videos into evidence and (2) the\ndistrict court’s1 instruction on the elements of aiding and abetting the use, carrying,\nor brandishing of a firearm during a crime of violence. We affirm.\n\n I. Background\n\n On October 17, 2016, Daniel Jackson and his co-defendant Jason Centeno\ntraveled from Muscatine, Iowa, to the Citizens State Bank of Hopkinton, Iowa. While\nJackson waited in the car, Centeno entered the bank and took video of its interior.\nThree days later, Jackson (in the company of Centeno and their roommate Edgar\nPauley) went to the Muscatine Wal-Mart and purchased black pantyhose, ski hats,\nand zip ties.\n\n On the morning of October 21, 2016, Jackson and Centeno donned the\ndisguises they purchased at Wal-Mart and entered the bank. Once inside, the two\nmen leapt over the counter, whereupon Jackson displayed a knife, used a zip tie to\nsecure a teller’s hands behind her back, and took money from her drawer.\nMeanwhile, Centeno brandished a .38 special revolver and demanded that a second\nteller give him the money from her drawer. Having accomplished his task with the\nfirst teller, Jackson approached the second teller and ordered her to the ground.\n\n While this was going on, the bank’s manager entered the bank, having just re-\nparked his car to find the robbery in progress. Jackson accosted him, ordered him to\nthe ground, and secured his hands with a zip tie, inadvertently dropping a zip tie on\nthe floor. Jackson’s DNA was later found on both zip ties.\n\n\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District Court\nfor the Northern District of Iowa.\n\n -2-\n\f Jackson and Centeno made their getaway with approximately $8,225 of\npurloined cash in their possession. The pair then fled the state with Pauley, leaving\nthe .38 revolver with Centeno’s mother in New York and eventually making their way\nto Daytona Beach, Florida, where they were arrested.\n\n Prior to trial, defense counsel moved to exclude three videos that Jackson\nmessaged to his Facebook friends in the days leading up to the robbery. The first\nvideo, sent to “EBK Rich,” showed Jackson driving through a residential area and\ntwice telling Centeno to fire the revolver toward the houses. Centeno complied.\nEBK Rich and Jackson also had a conversation through Facebook Messenger.\nJackson said that he was “bout to do some real shit.” EBK Rich then asked Jackson,\n“What you about to do?” Jackson responded with two words: “Bank” and “Robbing.”\n\n The second video showed Centeno firing two rounds from the revolver into an\nabandoned building while wearing the same jacket he wore during the robbery.\nCenteno then passed the gun to Jackson, who also fired two rounds.\n\n The third video showed Jackson displaying twenty rounds of ammunition and\nstating, “Get what you want. I went to the store and got bullets with no, no ID.” He\npicked up a black .38 special revolver and said, “I got this pretty baby.” He then\npointed the gun at the camera and dry fired it.\n\n The district court denied Jackson’s motion in limine, ruling that the videos\nwere intrinsic evidence that “tend[ed] to logically prove the elements of the crimes\nat issue.” In the alternative, the court found that if the evidence was extrinsic to the\ncharged crimes, it would be admissible under the exceptions of Federal Rule of\nEvidence 404(b).\n\n On October 2, 2016, the government and defense submitted joint proposed jury\ninstructions. “Jointly Proposed Instruction No. 7” dealt with the elements of the\n\n -3-\n\fprincipal offense of using, carrying, or brandishing of a firearm during a crime of\nviolence. “Jointly Proposed Instruction No. 8” included the elements of aiding and\nabetting. The district court issued draft versions of Instructions 7 and 8 that were\nidentical substantively to the proposed instructions. The court instructed the parties\nto raise any objections to the draft instructions. Neither party objected to the\ninstructions set forth in 7 and 8. The court filed its final jury instructions. In the final\npretrial conference, the issue of instructions was raised again:\n\n THE COURT: The jury instructions, on the docket at 123-1, is the set\n that I intend to read to the jury today, minus the verdict form. . . . But as\n far as the instructions that would be read today, again, they’re at Number\n 123-1, does any party have any record to make? Ms. Williams?\n\n MS. WILLIAMS [the AUSA]: No, Your Honor.\n\n THE COURT: Ms. Johnston?\n\n MS. JOHNSTON [defense counsel]: No, Your Honor.\n\n Jackson proceeded to trial on October 10, 2017. On the third day of trial, the\njury returned a verdict of guilty against Jackson on all four counts. The district court\nsentenced Jackson to a total of 180 months’ imprisonment to be followed by three\nyears of supervised release. Jackson timely appealed.\n\n II. Discussion\n\n A. Admission of Facebook Videos\n\n Jackson argues that the district court abused its discretion when it admitted the\nthree Facebook videos into evidence as either intrinsic evidence or extrinsic evidence\nunder one of the exceptions to Rule 404(b). See United States v. Engler, 521 F.3d\n965, 972 (8th Cir. 2008) (citing United States v. McCracken, 110 F.3d 535, 542 (8th\n\n -4-\n\fCir. 1997)) (standard of review). Jackson also asserts that the evidence is\ninadmissible under Federal Rule of Evidence 403 because the probative value of the\nvideos was substantially outweighed by their prejudicial effect.\n\n We agree with the district court that the videos constitute intrinsic evidence.\n“[W]here evidence of other crimes is ‘so blended or connected . . . or tends logically\nto prove any element of the crime charged,’ it is admissible as an integral part of the\nimmediate context of the crime charged. . . . [I]t is not extrinsic and therefore not\ngoverned by Rule 404(b).” United States v. Phelps, 168 F.3d 1048, 1057–58 (8th Cir.\n1999) (first alteration in original) (quoting United States v. Swinton, 75 F.3d 374, 378\n(8th Cir. 1996)). The video evidence was highly probative as evidence tending\nlogically to prove the elements of the offenses. The videos linked Jackson to the\nacquisition of the firearm and ammunition days before the robbery, showed Jackson’s\nknowledge of Centeno’s use and possession of the firearm in the days leading up to\nthe robbery, and—when coupled with the messages exchanged with EBK\nRich—connected the firearm with plans to commit a bank robbery.\n\n Jackson’s claim that the evidence is excludable as unfairly prejudicial under\nRule 403 relies primarily on the First Circuit’s decision in United States v. Rose, 104\nF.3d 1408 (1st Cir. 1997). Rose is unpersuasive and distinguishable from the facts\nin this case. The videos showing Centeno and Jackson shooting at an abandoned\nindustrial building and Jackson dry firing the gun at the camera were far less likely\nto create unfair prejudice than the photo in Rose that showed the defendant pointing\na potentially loaded firearm at a friend’s head. See United States v. Brooks, 715 F.3d\n1069, 1077 (8th Cir. 2013) (distinguishing Rose). Although the video showing\nCenteno following Jackson’s instructions to fire the gun toward houses in a\nresidential area is arguably more prejudicial, its probative value is greater as it shows\na personal and controlling relationship between the co-defendants and sheds light on\nJackson’s interactions with Centeno. Under these circumstances, we cannot say that\n\n\n\n -5-\n\fthe district court abused its discretion in admitting the videos based on a finding of\nhigh probative value in comparison to the potential prejudice.\n\n B. Aiding and Abetting Jury Instruction\n\n Jackson next argues that the jury instruction on aiding and abetting the use,\ncarrying, or brandishing of a firearm during a crime of violence was erroneous\nbecause it did not require the jury to find that he knew in advance that Centeno would\nbrandish a firearm during the bank robbery. To achieve a conviction for aiding and\nabetting an offense under 18 U.S.C. § 924(c), the government must prove:\n\n (1) that a predicate crime of violence or drug trafficking was committed;\n (2) that a gun was used in a prohibited manner during the predicate\n offense; (3) that the defendant facilitated the firearm use, the predicate\n crime, or both; and (4) that the defendant had advance knowledge that\n one of his confederates would use or carry a gun during and in relation\n to the commission of the predicate crime, or would possess a gun in\n furtherance of the predicate offense.\n\nUnited States v. McArthur, 850 F.3d 925, 941 (8th Cir. 2017) (citing Rosemond v.\nUnited States, 134 S. Ct. 1240, 1245, 1247, 1248–51 (2014)). Jury Instruction No.\n8, on the other hand, only required that Jackson (1) “knew that the crime charged was\nbeing committed or was going to be committed,” (2) “had enough advance knowledge\nof the extent and character of the crime that he was able to make the relevant choice\nto walk away from the crime before all of the elements were complete,” and (3)\n“knowingly acted in some way for the purpose of causing, encouraging or aiding the\ncommission of the crime charged.” Jackson argues that the vague references to “the\ncrime” allowed the jury to convict him if it found that he merely had advance\nknowledge of the robbery and not necessarily of the use, carrying, or brandishing of\nthe firearm.\n\n\n\n -6-\n\f Generally, we review an unobjected-to instruction for plain error. United\nStates v. Tobacco, 428 F.3d 1148, 1150 (8th Cir. 2005). Waived claims, however,\nare unreviewable on appeal. United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir.\n2010) (citing United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009)). It is well-\nestablished in this circuit that “when a defendant specifically requests a particular\ninstruction, he gives up the right to appeal any error in that instruction.” United\nStates v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013). Jackson “cannot challenge on\nappeal the court’s giving of the precise instruction that he requested” and never\nobjected to. Id. at 882. See also United States v. Tillman, 765 F.3d 831, 836 (8th Cir.\n2014) (citing Wisecarver, 598 F.3d at 988) (“Because Tillman jointly proposed the\ndisputed instruction and never objected, she waived the right to contest it.”).\nJackson’s challenge is unreviewable on appeal.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360624/", "author_raw": "ERICKSON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583371/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Daniel Louis JACKSON, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1482\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Daniel Louis Jackson\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: November 15, 2018\n Filed: January 22, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n In October 2017, a jury found Daniel Louis Jackson guilty of all counts of a\nfour-count Superseding Indictment for his role in a bank robbery in Hopkinton, Iowa:\n(1) Armed Bank Robbery and Aiding and Abetting Armed Bank Robbery; (2) Aiding\nand Abetting the Use, Carrying, and Brandishing of a Firearm During a Crime of\nViolence; (3) Conspiracy to Commit Armed Bank Robbery; and (4) Conspiracy to\nUse, Carry, and Brandish a Firearm During a Crime of Violence. Jackson appeals,\n\fchallenging (1) the admission of three Facebook videos into evidence and (2) the\ndistrict court’s1 instruction on the elements of aiding and abetting the use, carrying,\nor brandishing of a firearm during a crime of violence. We affirm.\n\n I. Background\n\n On October 17, 2016, Daniel Jackson and his co-defendant Jason Centeno\ntraveled from Muscatine, Iowa, to the Citizens State Bank of Hopkinton, Iowa. While\nJackson waited in the car, Centeno entered the bank and took video of its interior.\nThree days later, Jackson (in the company of Centeno and their roommate Edgar\nPauley) went to the Muscatine Wal-Mart and purchased black pantyhose, ski hats,\nand zip ties.\n\n On the morning of October 21, 2016, Jackson and Centeno donned the\ndisguises they purchased at Wal-Mart and entered the bank. Once inside, the two\nmen leapt over the counter, whereupon Jackson displayed a knife, used a zip tie to\nsecure a teller’s hands behind her back, and took money from her drawer.\nMeanwhile, Centeno brandished a .38 special revolver and demanded that a second\nteller give him the money from her drawer. Having accomplished his task with the\nfirst teller, Jackson approached the second teller and ordered her to the ground.\n\n While this was going on, the bank’s manager entered the bank, having just re-\nparked his car to find the robbery in progress. Jackson accosted him, ordered him to\nthe ground, and secured his hands with a zip tie, inadvertently dropping a zip tie on\nthe floor. Jackson’s DNA was later found on both zip ties.\n\n\n\n\n 1\n The Honorable Leonard T. Strand, Chief Judge, United States District Court\nfor the Northern District of Iowa.\n\n -2-\n\f Jackson and Centeno made their getaway with approximately $8,225 of\npurloined cash in their possession. The pair then fled the state with Pauley, leaving\nthe .38 revolver with Centeno’s mother in New York and eventually making their way\nto Daytona Beach, Florida, where they were arrested.\n\n Prior to trial, defense counsel moved to exclude three videos that Jackson\nmessaged to his Facebook friends in the days leading up to the robbery. The first\nvideo, sent to “EBK Rich,” showed Jackson driving through a residential area and\ntwice telling Centeno to fire the revolver toward the houses. Centeno complied.\nEBK Rich and Jackson also had a conversation through Facebook Messenger.\nJackson said that he was “bout to do some real shit.” EBK Rich then asked Jackson,\n“What you about to do?” Jackson responded with two words: “Bank” and “Robbing.”\n\n The second video showed Centeno firing two rounds from the revolver into an\nabandoned building while wearing the same jacket he wore during the robbery.\nCenteno then passed the gun to Jackson, who also fired two rounds.\n\n The third video showed Jackson displaying twenty rounds of ammunition and\nstating, “Get what you want. I went to the store and got bullets with no, no ID.” He\npicked up a black .38 special revolver and said, “I got this pretty baby.” He then\npointed the gun at the camera and dry fired it.\n\n The district court denied Jackson’s motion in limine, ruling that the videos\nwere intrinsic evidence that “tend[ed] to logically prove the elements of the crimes\nat issue.” In the alternative, the court found that if the evidence was extrinsic to the\ncharged crimes, it would be admissible under the exceptions of Federal Rule of\nEvidence 404(b).\n\n On October 2, 2016, the government and defense submitted joint proposed jury\ninstructions. “Jointly Proposed Instruction No. 7” dealt with the elements of the\n\n -3-\n\fprincipal offense of using, carrying, or brandishing of a firearm during a crime of\nviolence. “Jointly Proposed Instruction No. 8” included the elements of aiding and\nabetting. The district court issued draft versions of Instructions 7 and 8 that were\nidentical substantively to the proposed instructions. The court instructed the parties\nto raise any objections to the draft instructions. Neither party objected to the\ninstructions set forth in 7 and 8. The court filed its final jury instructions. In the final\npretrial conference, the issue of instructions was raised again:\n\n THE COURT: The jury instructions, on the docket at 123-1, is the set\n that I intend to read to the jury today, minus the verdict form. . . . But as\n far as the instructions that would be read today, again, they’re at Number\n 123-1, does any party have any record to make? Ms. Williams?\n\n MS. WILLIAMS [the AUSA]: No, Your Honor.\n\n THE COURT: Ms. Johnston?\n\n MS. JOHNSTON [defense counsel]: No, Your Honor.\n\n Jackson proceeded to trial on October 10, 2017. On the third day of trial, the\njury returned a verdict of guilty against Jackson on all four counts. The district court\nsentenced Jackson to a total of 180 months’ imprisonment to be followed by three\nyears of supervised release. Jackson timely appealed.\n\n II. Discussion\n\n A. Admission of Facebook Videos\n\n Jackson argues that the district court abused its discretion when it admitted the\nthree Facebook videos into evidence as either intrinsic evidence or extrinsic evidence\nunder one of the exceptions to Rule 404(b). See United States v. Engler, 521 F.3d\n965, 972 (8th Cir. 2008) (citing United States v. McCracken, 110 F.3d 535, 542 (8th\n\n -4-\n\fCir. 1997)) (standard of review). Jackson also asserts that the evidence is\ninadmissible under Federal Rule of Evidence 403 because the probative value of the\nvideos was substantially outweighed by their prejudicial effect.\n\n We agree with the district court that the videos constitute intrinsic evidence.\n“[W]here evidence of other crimes is ‘so blended or connected . . . or tends logically\nto prove any element of the crime charged,’ it is admissible as an integral part of the\nimmediate context of the crime charged. . . . [I]t is not extrinsic and therefore not\ngoverned by Rule 404(b).” United States v. Phelps, 168 F.3d 1048, 1057–58 (8th Cir.\n1999) (first alteration in original) (quoting United States v. Swinton, 75 F.3d 374, 378\n(8th Cir. 1996)). The video evidence was highly probative as evidence tending\nlogically to prove the elements of the offenses. The videos linked Jackson to the\nacquisition of the firearm and ammunition days before the robbery, showed Jackson’s\nknowledge of Centeno’s use and possession of the firearm in the days leading up to\nthe robbery, and—when coupled with the messages exchanged with EBK\nRich—connected the firearm with plans to commit a bank robbery.\n\n Jackson’s claim that the evidence is excludable as unfairly prejudicial under\nRule 403 relies primarily on the First Circuit’s decision in United States v. Rose, 104\nF.3d 1408 (1st Cir. 1997). Rose is unpersuasive and distinguishable from the facts\nin this case. The videos showing Centeno and Jackson shooting at an abandoned\nindustrial building and Jackson dry firing the gun at the camera were far less likely\nto create unfair prejudice than the photo in Rose that showed the defendant pointing\na potentially loaded firearm at a friend’s head. See United States v. Brooks, 715 F.3d\n1069, 1077 (8th Cir. 2013) (distinguishing Rose). Although the video showing\nCenteno following Jackson’s instructions to fire the gun toward houses in a\nresidential area is arguably more prejudicial, its probative value is greater as it shows\na personal and controlling relationship between the co-defendants and sheds light on\nJackson’s interactions with Centeno. Under these circumstances, we cannot say that\n\n\n\n -5-\n\fthe district court abused its discretion in admitting the videos based on a finding of\nhigh probative value in comparison to the potential prejudice.\n\n B. Aiding and Abetting Jury Instruction\n\n Jackson next argues that the jury instruction on aiding and abetting the use,\ncarrying, or brandishing of a firearm during a crime of violence was erroneous\nbecause it did not require the jury to find that he knew in advance that Centeno would\nbrandish a firearm during the bank robbery. To achieve a conviction for aiding and\nabetting an offense under 18 U.S.C. § 924(c), the government must prove:\n\n (1) that a predicate crime of violence or drug trafficking was committed;\n (2) that a gun was used in a prohibited manner during the predicate\n offense; (3) that the defendant facilitated the firearm use, the predicate\n crime, or both; and (4) that the defendant had advance knowledge that\n one of his confederates would use or carry a gun during and in relation\n to the commission of the predicate crime, or would possess a gun in\n furtherance of the predicate offense.\n\nUnited States v. McArthur, 850 F.3d 925, 941 (8th Cir. 2017) (citing Rosemond v.\nUnited States, 134 S. Ct. 1240, 1245, 1247, 1248–51 (2014)). Jury Instruction No.\n8, on the other hand, only required that Jackson (1) “knew that the crime charged was\nbeing committed or was going to be committed,” (2) “had enough advance knowledge\nof the extent and character of the crime that he was able to make the relevant choice\nto walk away from the crime before all of the elements were complete,” and (3)\n“knowingly acted in some way for the purpose of causing, encouraging or aiding the\ncommission of the crime charged.” Jackson argues that the vague references to “the\ncrime” allowed the jury to convict him if it found that he merely had advance\nknowledge of the robbery and not necessarily of the use, carrying, or brandishing of\nthe firearm.\n\n\n\n -6-\n\f Generally, we review an unobjected-to instruction for plain error. United\nStates v. Tobacco, 428 F.3d 1148, 1150 (8th Cir. 2005). Waived claims, however,\nare unreviewable on appeal. United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir.\n2010) (citing United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009)). It is well-\nestablished in this circuit that “when a defendant specifically requests a particular\ninstruction, he gives up the right to appeal any error in that instruction.” United\nStates v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013). Jackson “cannot challenge on\nappeal the court’s giving of the precise instruction that he requested” and never\nobjected to. Id. at 882. See also United States v. Tillman, 765 F.3d 831, 836 (8th Cir.\n2014) (citing Wisecarver, 598 F.3d at 988) (“Because Tillman jointly proposed the\ndisputed instruction and never objected, she waived the right to contest it.”).\nJackson’s challenge is unreviewable on appeal.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-\n[END_CASE]", "role": "user" } ]
4,583,825	UNITED STATES of America, Plaintiff - Appellee v. Kehinda MITCHELL, Defendant - Appellant	United States v. Kehinda Mitchell	2019-01-23	18-1600	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1600\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Kehinda Mitchell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: November 12, 2018\n Filed: January 23, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n On November 21, 2017, Appellant Kehinda Mitchell pled guilty to three\ncounts: (1) Conspiracy to Commit Offenses Against the United States, (2) Interstate\nTransportation of a Stolen Vehicle, and (3) Fraudulent Use of Access Devices. The\n\fdistrict court1 sentenced Mitchell to 41 months’ imprisonment to be followed by three\nyears of supervised release. Mitchell now appeals, asserting that (1) the district court\nerred by applying a two-level sophisticated-means enhancement under\n§2B1.1(b)(10)(C) of the United States Sentencing Guidelines Manual (“Guidelines”\nor “U.S.S.G.”), (2) the district court committed procedural error by failing to consider\nthe 18 U.S.C. § 3553(a) sentencing factors and to adequately explain its reasons for\nthe sentence, and (3) his high end of the Guidelines range sentence is substantively\nunreasonable.\n\n I. Background\n\n On December 5, 2015, Mitchell and an unindicted co-conspirator, as loan co-\napplicants, purchased a new 2015 Dodge Durango for $56,234.58 from an automobile\ndealership in Platteville, Wisconsin. To obtain the loan, Mitchell fraudulently used\nthe Social Security number of another individual and falsely claimed he earned\n$7,500 per month as the director of a dental center. In the months following, Mitchell\nand his co-defendants, Earl Douglas Chapman and Julius Rishawn Livingston,\nobtained the identifying information of at least twenty-four individuals.\n\n Mitchell, Chapman, Livingston, and one other individual traveled from Illinois\nto the St. Louis, Missouri, area in the Durango on March 8, 2016. They possessed\ncounterfeit Illinois driver’s licenses; identifying information of other individuals,\nincluding names, dates of birth, Social Security numbers, and credit/debit account\nnumbers; and fraudulent credit cards bearing the names and account numbers of\nothers. The co-defendants also possessed merchandise and gift cards that they\nfraudulently purchased in Columbus, Ohio; Charlotte, North Carolina; and Southfield,\nMichigan, between February 21, 2016, and March 2, 2016.\n\n\n 1\n The Honorable Ronnie L. White, United States District Judge for the Eastern\nDistrict of Missouri.\n\n -2-\n\f On the day of their arrival in the St. Louis area, the men traveled to three Target\nstores. Chapman and Livingston used fraudulent credit cards to purchase Target gift\ncards and merchandise exceeding $5,750 in value. Livingston also unsuccessfully\nattempted to purchase two iPads at one of the Target stores. That same day, Chapman\napplied for a Saks Fifth Avenue line of credit in Frontenac, Missouri, using the\npersonal information of victim J.M. and a counterfeit driver’s license bearing J.M.’s\ninformation and Chapman’s photo. Chapman successfully purchased merchandise\ntotaling $2,047.90.\n\n On March 9, 2016, Chapman applied for a Neiman Marcus line of credit at its\nstore in Frontenac, again using J.M.’s information and the same counterfeit license.\nUsing the Neiman Marcus line of credit and a fraudulent USAA Mastercard,\nChapman purchased merchandise valuing $7,257.23 and left in the Durango.\n\n That evening, the men drove to Town and Country, Missouri, and returned to\none of the Target stores. Chapman attempted to use two fraudulent credit cards to\npurchase Target gift cards, iPads, and a package of T-shirts, but each card was\ndeclined twice. Aware that a fraud was in progress, a Target loss prevention associate\ncontacted the Town and Country Police Department. Meanwhile, Chapman went to\nthe electronics section of the store and attempted to use another fraudulent credit\ncard. The card was initially declined, but Chapman successfully purchased $1,861.31\nworth of merchandise on the second swipe. As the defendants were driving away\nfrom the store, officers arrived on scene. The officers stopped the Durango in the\nparking lot of a nearby grocery store and arrested the defendants. Inside the Durango\nand the defendants’ hotel room in downtown St. Louis, officers located several\ncounterfeit driver’s licenses, fraudulent credit cards, gift cards, and items of\nmerchandise purchased with the fraudulent credit cards.\n\n Mitchell pled guilty to the three counts and proceeded to sentencing on March\n8, 2018. After hearing from counsel, the court found Mitchell’s base offense level\n\n -3-\n\fwas 6. The court applied enhancements for the amount of loss, number of victims,\nthe possession/use/production/trafficking of an authentication feature, and obstruction\nof justice. Relevant here, the court also applied (over defense objection) a two-level\nenhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). The court\ndenied a four-level minimal-participant reduction and a two-level reduction for\nacceptance of responsibility. The court found the total offense level was 20.\n\n Mitchell received one criminal history point for a 2014 theft by deception -\nfalse impression conviction in Allegheny County, Pennsylvania. That conviction\ninvolved Mitchell’s purchase of a Mercedes valued at $147,435.88 in which he used\na stolen Social Security number. Mitchell’s history also included a conviction for\nfirst-degree murder in 1995 in Cook County, Illinois. He served fifteen years of a\nthirty-year sentence before being paroled. After his release from prison, he was\nexonerated. With one criminal history point, Mitchell’s criminal history category was\nI.\n\n The court calculated an advisory Guidelines range of 33 to 41 months.\nMitchell moved for a downward variance for the following reasons: (1) his “good\ncharacter, limited criminal history, and unblemished personal history” show “he poses\nno risk of recidivism,” which was attested to in a letter from a jail supervisor; (2)\nMitchell’s role in the offense was limited; and (3) he unjustly lost fifteen years of his\nlife due to the wrongful murder conviction. The government moved for an upward\nvariance.\n\n After Mitchell spoke in allocution, the district court pronounced a sentence of\n41 months’ imprisonment:\n\n After reviewing the Presentence Report, hearing and ruling objections\n to the Presentence Report, reviewing the Defendant’s sentencing\n\n\n\n -4-\n\f memorandum and letters of support and the Government’s motions and\n objections to the sentencing – Defendant’s Sentencing Memorandum.\n\n The instant offense involved the Defendant conspiring with two others\n to fraudulently obtain merchandise and gift cards by using the personal\n identification and credit information of 24 individuals. The Defendant\n is most culpable as he fraudulently obtained an automobile using the\n Social Security Number of a minor child in order to transport the\n Defendants during the offense.\n\n The Defendant’s criminal history includes one prior conviction for theft\n by deception.\n\n The Defendant is the father to two minor children.\n\n As such, in light of the advisory guidelines range and the provisions of\n 18 USC Section 3553(a), a sentence of 41 months’ imprisonment, which\n represents the high end of the guideline range, I believe, would be\n sufficient but not greater than necessary to comply with the purposes set\n forth in 18 USC Section 3553(a).\n\n ...\n\n And just so you will know, I’ve considered what has happened to you\n in the past, and that’s one . . . reason why I didn’t vary upward at the\n request of Ms. Berry, but I don’t believe any of that stuff about this is\n somebody else’s fault. You were behind this mess, and today is the first\n time that I’ve ever heard you almost admit it, but you couldn’t even\n admit that. So that’s why you didn’t get a higher sentence.\n\nMitchell timely appealed his sentence.\n\n\n\n\n -5-\n\f II. Discussion\n\n A. Sophisticated-Means Enhancement\n\n Mitchell argues the district court erred when it applied a two-level\nenhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). We review\na district court’s “factual finding of whether a . . . scheme qualifies as ‘sophisticated’\nfor clear error.” United States v. Jones, 778 F.3d 1056, 1059 (8th Cir. 2015) (ellipses\nin original) (quoting United States v. Huston, 744 F.3d 589, 592 & n.2 (8th Cir.\n2014)). The finding “will stand ‘unless the decision is unsupported by substantial\nevidence, is based on an erroneous view of the applicable law, or in light of the entire\nrecord, we are left with a firm and definite conviction that a mistake has been made.’”\nId. (quoting United States v. Walker, 688 F.3d 416, 420–21 (8th Cir. 2012)).\n\n The Guidelines provide for a two-level enhancement when the offense\n“involved sophisticated means and the defendant intentionally engaged in or caused\nthe conduct constituting sophisticated means.” U.S.S.G. §2B1.1(b)(10)(C). The\nApplication Note defines “sophisticated means” as “especially complex or especially\nintricate conduct pertaining to the execution or concealment of an offense.” U.S.S.G.\n§2B1.1 cmt. n.9(B). “‘Sophisticated means need not be highly sophisticated,’ and the\nadjustment is ‘proper when the offense conduct, viewed as a whole, was notably more\nintricate than that of the garden-variety offense.’” United States v. Gaye, 902 F.3d\n780, 791 (8th Cir. 2018) (quoting United States v. Norwood, 774 F.3d 476, 480 (8th\nCir. 2014) (per curiam)). “Repetitive and coordinated conduct, though no one step\nis particularly complicated, can be a sophisticated scheme.” United States v. Melton,\n870 F.3d 830, 843 (8th Cir. 2017) (quoting United States v. Jenkins, 578 F.3d 745,\n751 (8th Cir. 2009)). “[T]he sophistication of the offense conduct is associated with\nthe means of repetition, the coordination required to carry out the repeated conduct,\nand the number of repetitions or length of time over which the scheme took place.”\n\n\n\n -6-\n\fGaye, 902 F.3d at 791 (alteration in original) (quoting United States v. Laws, 819\nF.3d 388, 393 (8th Cir. 2016)).\n\n We conclude there was sufficient evidence in the sentencing record for the\ndistrict court to find the offense involved sophisticated means. Taken alone, the\nindividual activities that Mitchell and his co-defendants engaged in were not\nextraordinarily intricate or high-tech—and sometimes were unsuccessful—but the\nscheme as a whole was sufficiently sophisticated. To acquire a vehicle, which\nallowed the defendants to travel to multiple states to make fraudulent purchases,\nMitchell used a fraudulently obtained Social Security number coupled with fabricated\nemployment information. During the following months, the defendants obtained the\nidentifying information of twenty-four individuals, counterfeit driver’s licenses, and\ncredit cards embedded with the victims’ account information. Between February 21,\n2016, and March 2, 2016, they traveled to three cities where they successfully used\nfraudulent credit cards to purchase Target gift cards without detection. During their\ntwo-day shopping spree in St. Louis in March 2016, the defendants fraudulently\npurchased more than $16,000 worth of merchandise and gift cards. In total, Mitchell\nwas tied to sixteen fraudulent credit card transactions in five states between February\n2016 and May 2016.2\n\n This “repetitive and coordinated conduct” of Mitchell and his co-defendants\nover the course of several months amounted to a sophisticated scheme. United States\nv. Borders, 829 F.3d 558, 570 (8th Cir. 2016) (quoting United States v. Fiorito, 640\nF.3d 338, 351 (8th Cir. 2011)) (holding that the district court did not clearly err in\napplying a sophisticated-means enhancement where the defendant was connected to\nseveral events over a period of time, the scheme involved thousands of dollars, and\n\n 2\n The defendants continued their fraudulent scheme after Mitchell was released\nfrom custody on March 10, 2016. They were arrested in California on April 5, 2016,\nafter possessing and using fraudulent credit cards in that state. They also attempted\nto fraudulently purchase two more vehicles in Michigan in May 2016.\n\n -7-\n\fthe defendant undertook multiple steps that were necessary for the scheme’s success).\nThe district court did not clearly err in imposing the two-level enhancement.\n\n B. Procedural Reasonableness\n\n Mitchell argues the district court committed procedural error by failing to\nconsider the sentencing factors listed in 18 U.S.C. § 3553(a) and to adequately\nexplain the sentence. Because Mitchell did not object to these alleged procedural\nerrors during sentencing, we review for plain error. United States v. Thomas, 790\nF.3d 784, 786 (8th Cir. 2015) (citing United States v. Miller, 557 F.3d 910, 916 (8th\nCir. 2009)).\n\n We conclude the district court did not err, let alone plainly err. During its\npronouncement of the sentence, the district court referenced the Presentence\nInvestigation Report, the parties’ sentencing memoranda, and letters in support of\nMitchell; discussed the nature of the offense, Mitchell’s role in the offense, and his\ncriminal history; mentioned § 3553(a) three times; and explained that Mitchell’s prior\nwrongful conviction provided reason not to vary upward as the government had\nrequested. The record establishes the court considered the § 3553(a) factors and\nadequately explained the sentence.\n\n C. Substantive Reasonableness\n\n Mitchell also contends his 41-month sentence is substantively unreasonable.\nHe argues the district court improperly gave great weight to negligible aggravating\nfactors that were already accounted for by the Guidelines and dismissed his\nmitigation evidence as merely a reason for not varying upward. We review the\nsubstantive reasonableness of a sentence “under a deferential abuse-of-discretion\nstandard.” Gall v. United States, 552 U.S. 38, 41 (2007). A district court abuses its\ndiscretion when it “(1) fails to consider a relevant factor that should have received\n\n -8-\n\fsignificant weight; (2) gives significant weight to an improper or irrelevant factor; or\n(3) considers only the appropriate factors but in weighing those factors commits a\nclear error of judgment.” United States v. Washington, 893 F.3d 1076, 1080 (8th Cir.\n2018) (quoting United States v. Marshall, 891 F.3d 716, 719 (8th Cir. 2018) (per\ncuriam)). A sentence that falls within the Guidelines range is presumptively\nreasonable. Id. (citing United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017)).\n\n The district court did not engage in impermissible double counting by using the\nsame conduct to enhance his offense level and to justify a possible upward variance.\nThe case relied on by Mitchell, United States v. Peck, 496 F.3d 885 (8th Cir. 2007),\nis inapposite. Peck prohibits the application of “one part of the Guidelines . . . to\nincrease a defendant’s punishment on account of a kind of harm that has already\nbeen . . . accounted for by application of another part of the Guidelines.” Id. at 890\n(second ellipses in original) (quoting United States v. Jones, 440 F.3d 927, 929 (8th\nCir. 2006)). In the present case, the district court relied on the same conduct that\naffected the Guidelines range as justification for an upward variance were it not for\nMitchell’s prior wrongful conviction. We have explained that “factors that have\nalready been taken into account in calculating the advisory guideline range . . . can\nnevertheless form the basis of a variance.” United States v. Chase, 560 F.3d 828, 831\n(8th Cir. 2009) (citing United States v. White, 506 F.3d 635, 644 (8th Cir. 2007)).\n\n The district court did not make a clear error of judgment when weighing the\naggravating and mitigating factors. The court decided that the nature of the offense\n(specifically the number of victims), Mitchell’s role in the offense, his pattern of\nfraudulent behavior since he was paroled, and his failure to completely own up to his\nbehavior outweighed the injustice done to him in the past and the rehabilitative\npotential expressed by the jail supervisor. We grant district courts “wide latitude to\nweigh the § 3553(a) [factors] in each case and assign some factors greater weight than\nothers in determining an appropriate sentence.” Washington, 893 F.3d at 1080–81\n(quoting United States v. Ritchison, 887 F.3d 365, 370 (8th Cir. 2018)). Mitchell has\n\n -9-\n\fnot overcome the presumption of reasonableness that we afford to within-Guidelines\nsentences.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361078/", "author_raw": "ERICKSON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583825/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Kehinda MITCHELL, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1600\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Kehinda Mitchell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: November 12, 2018\n Filed: January 23, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n On November 21, 2017, Appellant Kehinda Mitchell pled guilty to three\ncounts: (1) Conspiracy to Commit Offenses Against the United States, (2) Interstate\nTransportation of a Stolen Vehicle, and (3) Fraudulent Use of Access Devices. The\n\fdistrict court1 sentenced Mitchell to 41 months’ imprisonment to be followed by three\nyears of supervised release. Mitchell now appeals, asserting that (1) the district court\nerred by applying a two-level sophisticated-means enhancement under\n§2B1.1(b)(10)(C) of the United States Sentencing Guidelines Manual (“Guidelines”\nor “U.S.S.G.”), (2) the district court committed procedural error by failing to consider\nthe 18 U.S.C. § 3553(a) sentencing factors and to adequately explain its reasons for\nthe sentence, and (3) his high end of the Guidelines range sentence is substantively\nunreasonable.\n\n I. Background\n\n On December 5, 2015, Mitchell and an unindicted co-conspirator, as loan co-\napplicants, purchased a new 2015 Dodge Durango for $56,234.58 from an automobile\ndealership in Platteville, Wisconsin. To obtain the loan, Mitchell fraudulently used\nthe Social Security number of another individual and falsely claimed he earned\n$7,500 per month as the director of a dental center. In the months following, Mitchell\nand his co-defendants, Earl Douglas Chapman and Julius Rishawn Livingston,\nobtained the identifying information of at least twenty-four individuals.\n\n Mitchell, Chapman, Livingston, and one other individual traveled from Illinois\nto the St. Louis, Missouri, area in the Durango on March 8, 2016. They possessed\ncounterfeit Illinois driver’s licenses; identifying information of other individuals,\nincluding names, dates of birth, Social Security numbers, and credit/debit account\nnumbers; and fraudulent credit cards bearing the names and account numbers of\nothers. The co-defendants also possessed merchandise and gift cards that they\nfraudulently purchased in Columbus, Ohio; Charlotte, North Carolina; and Southfield,\nMichigan, between February 21, 2016, and March 2, 2016.\n\n\n 1\n The Honorable Ronnie L. White, United States District Judge for the Eastern\nDistrict of Missouri.\n\n -2-\n\f On the day of their arrival in the St. Louis area, the men traveled to three Target\nstores. Chapman and Livingston used fraudulent credit cards to purchase Target gift\ncards and merchandise exceeding $5,750 in value. Livingston also unsuccessfully\nattempted to purchase two iPads at one of the Target stores. That same day, Chapman\napplied for a Saks Fifth Avenue line of credit in Frontenac, Missouri, using the\npersonal information of victim J.M. and a counterfeit driver’s license bearing J.M.’s\ninformation and Chapman’s photo. Chapman successfully purchased merchandise\ntotaling $2,047.90.\n\n On March 9, 2016, Chapman applied for a Neiman Marcus line of credit at its\nstore in Frontenac, again using J.M.’s information and the same counterfeit license.\nUsing the Neiman Marcus line of credit and a fraudulent USAA Mastercard,\nChapman purchased merchandise valuing $7,257.23 and left in the Durango.\n\n That evening, the men drove to Town and Country, Missouri, and returned to\none of the Target stores. Chapman attempted to use two fraudulent credit cards to\npurchase Target gift cards, iPads, and a package of T-shirts, but each card was\ndeclined twice. Aware that a fraud was in progress, a Target loss prevention associate\ncontacted the Town and Country Police Department. Meanwhile, Chapman went to\nthe electronics section of the store and attempted to use another fraudulent credit\ncard. The card was initially declined, but Chapman successfully purchased $1,861.31\nworth of merchandise on the second swipe. As the defendants were driving away\nfrom the store, officers arrived on scene. The officers stopped the Durango in the\nparking lot of a nearby grocery store and arrested the defendants. Inside the Durango\nand the defendants’ hotel room in downtown St. Louis, officers located several\ncounterfeit driver’s licenses, fraudulent credit cards, gift cards, and items of\nmerchandise purchased with the fraudulent credit cards.\n\n Mitchell pled guilty to the three counts and proceeded to sentencing on March\n8, 2018. After hearing from counsel, the court found Mitchell’s base offense level\n\n -3-\n\fwas 6. The court applied enhancements for the amount of loss, number of victims,\nthe possession/use/production/trafficking of an authentication feature, and obstruction\nof justice. Relevant here, the court also applied (over defense objection) a two-level\nenhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). The court\ndenied a four-level minimal-participant reduction and a two-level reduction for\nacceptance of responsibility. The court found the total offense level was 20.\n\n Mitchell received one criminal history point for a 2014 theft by deception -\nfalse impression conviction in Allegheny County, Pennsylvania. That conviction\ninvolved Mitchell’s purchase of a Mercedes valued at $147,435.88 in which he used\na stolen Social Security number. Mitchell’s history also included a conviction for\nfirst-degree murder in 1995 in Cook County, Illinois. He served fifteen years of a\nthirty-year sentence before being paroled. After his release from prison, he was\nexonerated. With one criminal history point, Mitchell’s criminal history category was\nI.\n\n The court calculated an advisory Guidelines range of 33 to 41 months.\nMitchell moved for a downward variance for the following reasons: (1) his “good\ncharacter, limited criminal history, and unblemished personal history” show “he poses\nno risk of recidivism,” which was attested to in a letter from a jail supervisor; (2)\nMitchell’s role in the offense was limited; and (3) he unjustly lost fifteen years of his\nlife due to the wrongful murder conviction. The government moved for an upward\nvariance.\n\n After Mitchell spoke in allocution, the district court pronounced a sentence of\n41 months’ imprisonment:\n\n After reviewing the Presentence Report, hearing and ruling objections\n to the Presentence Report, reviewing the Defendant’s sentencing\n\n\n\n -4-\n\f memorandum and letters of support and the Government’s motions and\n objections to the sentencing – Defendant’s Sentencing Memorandum.\n\n The instant offense involved the Defendant conspiring with two others\n to fraudulently obtain merchandise and gift cards by using the personal\n identification and credit information of 24 individuals. The Defendant\n is most culpable as he fraudulently obtained an automobile using the\n Social Security Number of a minor child in order to transport the\n Defendants during the offense.\n\n The Defendant’s criminal history includes one prior conviction for theft\n by deception.\n\n The Defendant is the father to two minor children.\n\n As such, in light of the advisory guidelines range and the provisions of\n 18 USC Section 3553(a), a sentence of 41 months’ imprisonment, which\n represents the high end of the guideline range, I believe, would be\n sufficient but not greater than necessary to comply with the purposes set\n forth in 18 USC Section 3553(a).\n\n ...\n\n And just so you will know, I’ve considered what has happened to you\n in the past, and that’s one . . . reason why I didn’t vary upward at the\n request of Ms. Berry, but I don’t believe any of that stuff about this is\n somebody else’s fault. You were behind this mess, and today is the first\n time that I’ve ever heard you almost admit it, but you couldn’t even\n admit that. So that’s why you didn’t get a higher sentence.\n\nMitchell timely appealed his sentence.\n\n\n\n\n -5-\n\f II. Discussion\n\n A. Sophisticated-Means Enhancement\n\n Mitchell argues the district court erred when it applied a two-level\nenhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). We review\na district court’s “factual finding of whether a . . . scheme qualifies as ‘sophisticated’\nfor clear error.” United States v. Jones, 778 F.3d 1056, 1059 (8th Cir. 2015) (ellipses\nin original) (quoting United States v. Huston, 744 F.3d 589, 592 & n.2 (8th Cir.\n2014)). The finding “will stand ‘unless the decision is unsupported by substantial\nevidence, is based on an erroneous view of the applicable law, or in light of the entire\nrecord, we are left with a firm and definite conviction that a mistake has been made.’”\nId. (quoting United States v. Walker, 688 F.3d 416, 420–21 (8th Cir. 2012)).\n\n The Guidelines provide for a two-level enhancement when the offense\n“involved sophisticated means and the defendant intentionally engaged in or caused\nthe conduct constituting sophisticated means.” U.S.S.G. §2B1.1(b)(10)(C). The\nApplication Note defines “sophisticated means” as “especially complex or especially\nintricate conduct pertaining to the execution or concealment of an offense.” U.S.S.G.\n§2B1.1 cmt. n.9(B). “‘Sophisticated means need not be highly sophisticated,’ and the\nadjustment is ‘proper when the offense conduct, viewed as a whole, was notably more\nintricate than that of the garden-variety offense.’” United States v. Gaye, 902 F.3d\n780, 791 (8th Cir. 2018) (quoting United States v. Norwood, 774 F.3d 476, 480 (8th\nCir. 2014) (per curiam)). “Repetitive and coordinated conduct, though no one step\nis particularly complicated, can be a sophisticated scheme.” United States v. Melton,\n870 F.3d 830, 843 (8th Cir. 2017) (quoting United States v. Jenkins, 578 F.3d 745,\n751 (8th Cir. 2009)). “[T]he sophistication of the offense conduct is associated with\nthe means of repetition, the coordination required to carry out the repeated conduct,\nand the number of repetitions or length of time over which the scheme took place.”\n\n\n\n -6-\n\fGaye, 902 F.3d at 791 (alteration in original) (quoting United States v. Laws, 819\nF.3d 388, 393 (8th Cir. 2016)).\n\n We conclude there was sufficient evidence in the sentencing record for the\ndistrict court to find the offense involved sophisticated means. Taken alone, the\nindividual activities that Mitchell and his co-defendants engaged in were not\nextraordinarily intricate or high-tech—and sometimes were unsuccessful—but the\nscheme as a whole was sufficiently sophisticated. To acquire a vehicle, which\nallowed the defendants to travel to multiple states to make fraudulent purchases,\nMitchell used a fraudulently obtained Social Security number coupled with fabricated\nemployment information. During the following months, the defendants obtained the\nidentifying information of twenty-four individuals, counterfeit driver’s licenses, and\ncredit cards embedded with the victims’ account information. Between February 21,\n2016, and March 2, 2016, they traveled to three cities where they successfully used\nfraudulent credit cards to purchase Target gift cards without detection. During their\ntwo-day shopping spree in St. Louis in March 2016, the defendants fraudulently\npurchased more than $16,000 worth of merchandise and gift cards. In total, Mitchell\nwas tied to sixteen fraudulent credit card transactions in five states between February\n2016 and May 2016.2\n\n This “repetitive and coordinated conduct” of Mitchell and his co-defendants\nover the course of several months amounted to a sophisticated scheme. United States\nv. Borders, 829 F.3d 558, 570 (8th Cir. 2016) (quoting United States v. Fiorito, 640\nF.3d 338, 351 (8th Cir. 2011)) (holding that the district court did not clearly err in\napplying a sophisticated-means enhancement where the defendant was connected to\nseveral events over a period of time, the scheme involved thousands of dollars, and\n\n 2\n The defendants continued their fraudulent scheme after Mitchell was released\nfrom custody on March 10, 2016. They were arrested in California on April 5, 2016,\nafter possessing and using fraudulent credit cards in that state. They also attempted\nto fraudulently purchase two more vehicles in Michigan in May 2016.\n\n -7-\n\fthe defendant undertook multiple steps that were necessary for the scheme’s success).\nThe district court did not clearly err in imposing the two-level enhancement.\n\n B. Procedural Reasonableness\n\n Mitchell argues the district court committed procedural error by failing to\nconsider the sentencing factors listed in 18 U.S.C. § 3553(a) and to adequately\nexplain the sentence. Because Mitchell did not object to these alleged procedural\nerrors during sentencing, we review for plain error. United States v. Thomas, 790\nF.3d 784, 786 (8th Cir. 2015) (citing United States v. Miller, 557 F.3d 910, 916 (8th\nCir. 2009)).\n\n We conclude the district court did not err, let alone plainly err. During its\npronouncement of the sentence, the district court referenced the Presentence\nInvestigation Report, the parties’ sentencing memoranda, and letters in support of\nMitchell; discussed the nature of the offense, Mitchell’s role in the offense, and his\ncriminal history; mentioned § 3553(a) three times; and explained that Mitchell’s prior\nwrongful conviction provided reason not to vary upward as the government had\nrequested. The record establishes the court considered the § 3553(a) factors and\nadequately explained the sentence.\n\n C. Substantive Reasonableness\n\n Mitchell also contends his 41-month sentence is substantively unreasonable.\nHe argues the district court improperly gave great weight to negligible aggravating\nfactors that were already accounted for by the Guidelines and dismissed his\nmitigation evidence as merely a reason for not varying upward. We review the\nsubstantive reasonableness of a sentence “under a deferential abuse-of-discretion\nstandard.” Gall v. United States, 552 U.S. 38, 41 (2007). A district court abuses its\ndiscretion when it “(1) fails to consider a relevant factor that should have received\n\n -8-\n\fsignificant weight; (2) gives significant weight to an improper or irrelevant factor; or\n(3) considers only the appropriate factors but in weighing those factors commits a\nclear error of judgment.” United States v. Washington, 893 F.3d 1076, 1080 (8th Cir.\n2018) (quoting United States v. Marshall, 891 F.3d 716, 719 (8th Cir. 2018) (per\ncuriam)). A sentence that falls within the Guidelines range is presumptively\nreasonable. Id. (citing United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017)).\n\n The district court did not engage in impermissible double counting by using the\nsame conduct to enhance his offense level and to justify a possible upward variance.\nThe case relied on by Mitchell, United States v. Peck, 496 F.3d 885 (8th Cir. 2007),\nis inapposite. Peck prohibits the application of “one part of the Guidelines . . . to\nincrease a defendant’s punishment on account of a kind of harm that has already\nbeen . . . accounted for by application of another part of the Guidelines.” Id. at 890\n(second ellipses in original) (quoting United States v. Jones, 440 F.3d 927, 929 (8th\nCir. 2006)). In the present case, the district court relied on the same conduct that\naffected the Guidelines range as justification for an upward variance were it not for\nMitchell’s prior wrongful conviction. We have explained that “factors that have\nalready been taken into account in calculating the advisory guideline range . . . can\nnevertheless form the basis of a variance.” United States v. Chase, 560 F.3d 828, 831\n(8th Cir. 2009) (citing United States v. White, 506 F.3d 635, 644 (8th Cir. 2007)).\n\n The district court did not make a clear error of judgment when weighing the\naggravating and mitigating factors. The court decided that the nature of the offense\n(specifically the number of victims), Mitchell’s role in the offense, his pattern of\nfraudulent behavior since he was paroled, and his failure to completely own up to his\nbehavior outweighed the injustice done to him in the past and the rehabilitative\npotential expressed by the jail supervisor. We grant district courts “wide latitude to\nweigh the § 3553(a) [factors] in each case and assign some factors greater weight than\nothers in determining an appropriate sentence.” Washington, 893 F.3d at 1080–81\n(quoting United States v. Ritchison, 887 F.3d 365, 370 (8th Cir. 2018)). Mitchell has\n\n -9-\n\fnot overcome the presumption of reasonableness that we afford to within-Guidelines\nsentences.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -10-\n[END_CASE]", "role": "user" } ]
4,585,144	UNITED STATES of America, Plaintiff-Appellee v. Willie Gill WILLIAMS, Defendant-Appellant	United States v. Willie Williams	2019-01-28	17-3740	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3740\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Willie Gill Williams\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Arkansas - Hot Springs\n ____________\n\n Submitted: November 12, 2018\n Filed: January 28, 2019\n [Published]\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Willie Gill Williams pleaded guilty to one count of being a felon in possession\nof a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the\n\fdistrict court1 adopted the presentence investigation report, to which Williams did not\nobject, and calculated an advisory Guidelines range of 30 to 37 months of\nimprisonment. Williams requested a downward variance, arguing that the only reason\nhe had possessed the firearm was to remove it from a house where children could\naccess it. He also asked for drug and mental health treatment. The district court\nnoted that Williams had previously been convicted of unlawful possession of a\nfirearm and therefore “knew [he was] not supposed to possess this gun[, e]ven though\n[he] may have had good intentions of possessing it.” The court imposed a 34-month\nterm of imprisonment and 3-year term of supervised release, and recommended drug\nand mental health treatment. Williams appeals, challenging the substantive\nreasonableness of the sentence.\n\n We review the substantive reasonableness of a sentence for abuse of discretion.\nUnited States v. Johnson, 812 F.3d 714, 715 (8th Cir. 2016) (per curiam). “A\nsentencing court abuses its discretion if it fails to consider a relevant factor that\nshould have received significant weight, gives significant weight to an improper or\nirrelevant factor, or considers only the appropriate factors but commits a clear error\nof judgment in weighing those factors.” Id. (quoting United States v. Cook, 698 F.3d\n667, 670 (8th Cir. 2012)). A within-Guidelines sentence is presumed reasonable.\nUnited States v. Chavarria-Ortiz, 828 F.3d 668, 672 (8th Cir. 2016).\n\n Williams has not rebutted the presumption that his within-Guidelines sentence\nwas reasonable. The district court took into consideration the sole mitigating factor\npresented by Williams—that he possessed the firearm for a good reason. The court\ndiscussed the factors set forth in 18 U.S.C. § 3553(a), including its observations that\n“this conduct is repeated conduct,” and that the time Williams previously spent in\n\n\n\n 1\n The Honorable Susan O. Hickey, United States District Judge for the Western\nDistrict of Arkansas.\n\n -2-\n\fprison had not deterred him from committing the instant offense. Under these\ncircumstances, the sentence was not unreasonable.\n\n The district court’s judgment is affirmed.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362397/", "author_raw": "PER CURIAM"}]}	GRUENDER	KELLY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585144/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Willie Gill WILLIAMS, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3740\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Willie Gill Williams\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Arkansas - Hot Springs\n ____________\n\n Submitted: November 12, 2018\n Filed: January 28, 2019\n [Published]\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Willie Gill Williams pleaded guilty to one count of being a felon in possession\nof a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the\n\fdistrict court1 adopted the presentence investigation report, to which Williams did not\nobject, and calculated an advisory Guidelines range of 30 to 37 months of\nimprisonment. Williams requested a downward variance, arguing that the only reason\nhe had possessed the firearm was to remove it from a house where children could\naccess it. He also asked for drug and mental health treatment. The district court\nnoted that Williams had previously been convicted of unlawful possession of a\nfirearm and therefore “knew [he was] not supposed to possess this gun[, e]ven though\n[he] may have had good intentions of possessing it.” The court imposed a 34-month\nterm of imprisonment and 3-year term of supervised release, and recommended drug\nand mental health treatment. Williams appeals, challenging the substantive\nreasonableness of the sentence.\n\n We review the substantive reasonableness of a sentence for abuse of discretion.\nUnited States v. Johnson, 812 F.3d 714, 715 (8th Cir. 2016) (per curiam). “A\nsentencing court abuses its discretion if it fails to consider a relevant factor that\nshould have received significant weight, gives significant weight to an improper or\nirrelevant factor, or considers only the appropriate factors but commits a clear error\nof judgment in weighing those factors.” Id. (quoting United States v. Cook, 698 F.3d\n667, 670 (8th Cir. 2012)). A within-Guidelines sentence is presumed reasonable.\nUnited States v. Chavarria-Ortiz, 828 F.3d 668, 672 (8th Cir. 2016).\n\n Williams has not rebutted the presumption that his within-Guidelines sentence\nwas reasonable. The district court took into consideration the sole mitigating factor\npresented by Williams—that he possessed the firearm for a good reason. The court\ndiscussed the factors set forth in 18 U.S.C. § 3553(a), including its observations that\n“this conduct is repeated conduct,” and that the time Williams previously spent in\n\n\n\n 1\n The Honorable Susan O. Hickey, United States District Judge for the Western\nDistrict of Arkansas.\n\n -2-\n\fprison had not deterred him from committing the instant offense. Under these\ncircumstances, the sentence was not unreasonable.\n\n The district court’s judgment is affirmed.\n ______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]
4,585,147	UNITED STATES of America, Plaintiff-Appellee v. Joseph D. MEYER, Defendant-Appellant	United States v. Joseph D. Meyer	2019-01-28	17-3463	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3463\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Joseph D. Meyer\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 15, 2018\n Filed: January 28, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n\n Joseph Meyer failed to file timely federal income tax returns for tax years 2002\nand 2009, and the Government levied tax assessments. Meyer maintains that those\nassessments are invalid because the Internal Revenue Service (“IRS”) failed to follow\nInternal Revenue Code provisions requiring it to mail a notice of deficiency (“NOD”\nor “ninety-day letter”) to him for each tax year before assessing deficiencies. The\n\fdistrict court1 granted the Government’s motion for summary judgment and denied\nMeyer’s cross motion for summary judgment. Meyer appeals both orders. We affirm.\n\n We review de novo district court orders on summary judgment. RSA 1 Ltd.\nP'ship v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015).\nSummary judgment is proper if the movant “shows that there is no genuine dispute\nas to any material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a).\n\n Before assessing liability for unpaid taxes, the IRS must send a NOD to the\ntaxpayer’s last known address by certified mail or registered mail. 26 U.S.C.\n§§ 6212(a), 6213(a). Within ninety days after the NOD is mailed, “the taxpayer may\nfile a petition with the Tax Court for a redetermination of the deficiency.” 26 U.S.C.\n§ 6213(a). Absent proper mailing of the NOD, subsequent assessments may be\nenjoined. Id.\n\n The Government bears the burden of proving that the IRS properly mailed a\nNOD “by competent and persuasive evidence.” Welch v. United States, 678 F.3d\n1371, 1378 (Fed. Cir. 2012). It is entitled to a rebuttable presumption of proper\nmailing if it “(a) shows that the notice of deficiency existed and (b) produces a\nproperly completed Postal Form 3877 certified mail log (or equivalent).” O’Rourke\nv. United States, 587 F.3d 537, 540 (2d Cir. 2009) (per curiam). The Government\nmay also meet its burden with evidence that is “otherwise sufficient.” Id.\n“[S]ufficiently corroborative evidence in the form of testimony, correspondence, habit\nevidence, or otherwise” will establish both “the existence of the notice of deficiency\nand of timely mailing.” Welch, 678 F.3d at 1380.\n\n In these types of cases, the Government often produces IRS Form 4340, “which\nis a computer generated form that reflects the taxes assessed to and paid by the\n\n\n 1\n The Honorable Ann D. Montgomery, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\ftaxpayer in a particular year.” United States v. Jimenez, 513 F.3d 62, 79 n.4 (3d Cir.\n2008). There is “substantial precedent” that Form 4340 is an “appropriate source[]\nevidencing the IRS’s assessment and notice of tax arrears.” Perez v. United States,\n312 F.3d 191, 195 (5th Cir. 2002) (per curiam). Many courts regard it as\n“presumptive proof of a valid assessment.” Cropper v. Comm’r, 826 F.3d 1280, 1287\n(10th Cir. 2016); United States v. White, 466 F.3d 1241, 1248 (11th Cir. 2006);\nUnited States v. Filson, 347 F. App’x 987, 990 (5th Cir. 2009) (per curiam);\nGeiselman v. United States, 961 F.2d 1, 6 (1st Cir. 1992) (per curiam); United States\nv. Zarra, 477 F. App’x 859, 860 (3d Cir. 2012); see also Laszloffy v. Comm’r, 297 F.\nApp’x 628, 629 (9th Cir. 2008) (affirming a grant of summary judgment in favor of\nthe Government because “Form 4340 established that the IRS made a valid tax\nassessment and sent [the taxpayer] a proper notice of assessment and demand for\npayment”).\n\n The Government did not produce a Postal Form 3877 for either tax year 2002\nor 2009. Thus, the rebuttable presumption of proper mailing does not apply. But the\nGovernment did produce a Form 4340 for both years. It also produced a copy of the\nNOD for tax year 2002 and a Case History Report for tax year 2009.\n\n Meyer acknowledges that “Forms 4340 have been routinely admitted in many\ntax cases” but claims that they are inadequate in this case because they do not indicate\nwhen the NODs were mailed. While the Form 4340s do not show when the NODs\nwere mailed, they do show the dates when the Government assessed deficiencies\nagainst Meyer. They also explain that those assessments were made “per default of\n90 day letter.” This explanation is sufficient to establish that the NOD was mailed\nwhen a copy of the NOD was also produced during discovery. See United States v.\nRohner, 634 F. App’x 495, 501-02 (6th Cir. 2015) (affirming a district court’s finding\nthat the Government “met its burden to present the requisite ‘otherwise sufficient’\nevidence” when it produced copies of the notices and when “each Form 4340 stated\nthat additional tax had been assessed ‘per default of 90 day letter’”). Because the\n\n\n\n -3-\n\fGovernment produced a copy of the NOD and Form 4340 for tax year 2002, it\nestablished both the existence and proper mailing of the NOD for that year.\n\n The Government did not produce a copy of the NOD for the 2009 tax year, but\nit submitted a Case History Report that describes steps taken by the IRS officer\nassigned to Meyer’s case. This report provides additional evidence of both the\nexistence and mailing of the NOD for 2009. It states that on January 3, 2013, the\nofficer was “[s]ending to have 90 day letter issued” and indicates that the NOD was,\nin fact, issued on January 25, 2013. Also, as the district court noted, “the 2009 Form\n4340 reflects that tax was assessed ‘per default of 90 day letter’ on June 10, 2013,\nwhich is more than 90 days from when the NOD was allegedly sent, [on] January 25,\n2013.” United States v. Meyer, No. 16-774, 2017 WL 3016761, at *6 (D. Minn. July\n14, 2017). We conclude that the Case History Report and the Form 4340 produced\nby the Government establish both the existence and mailing of the NOD for tax year\n2009.\n\n Meyer states that he did not receive the NODs and claims that this is sufficient\nto rebut any presumption of proper mailing under the common-law mailbox rule. But\nthe mailbox rule is inapplicable here. First, it creates a presumption of receipt of mail\nafter the sender establishes proper mailing. See, e.g., Ark. Motor Coaches, Ltd., Inc.\nv. Comm’r, 198 F.2d 189, 191 (8th Cir. 1952) (“Where, as in this case, matter is\ntransmitted by the United States mails, properly addressed and postage fully prepaid,\nthere is a strong presumption that it will be received by the addressee in the ordinary\ncourse of the mails.”); In re Cendant Corp. Prides Litig., 311 F.3d 298, 304 (3d Cir.\n2002) (“The common law has long recognized a presumption that an item properly\nmailed was received by the addressee.”). Second, Meyer does not cite any precedent\ntying the mailbox rule to disputes involving the IRS and its obligation to send NODs\nbefore assessing deficiencies. Third, Meyer disregards 26 U.S.C. § 6212, which\n“does not require actual receipt of the mailing.” See Pagonis v. United States, 575\nF.3d 809, 813 (8th Cir. 2009) (stating that “a notice sent by certified mail to a\ntaxpayer’s last known address complies with the statutory requirements, even if it is\n\n -4-\n\freturned unclaimed”). Indeed, “[t]hat the taxpayer did not receive actual notice of the\ndeficiency is irrelevant.” United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976).\nFor all these reasons, Meyer’s claim that he did not receive the NODs does nothing\nto undermine the dispositive evidence of proper mailing produced by the\nGovernment.\n\n Finally, in his reply brief, Meyer challenges the reliability and admissibility of\nForm 4340s by claiming that (1) their creation involves the translation of digital\ninformation into plain language, (2) this translation creates new, inadmissible\nevidence, (3) Form 4340s are not “duly published systems of records, and maintaining\nsuch systems is a crime,” and (4) because the maintenance of Form 4340s is a crime,\nthey cannot qualify as public records and are inadmissible hearsay. We need not\nconsider these claims because they appear for the first time in a reply brief. See\nBarham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006) (“As\na general rule, we will not consider arguments raised for the first time in a reply\nbrief.”); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (“Since there\nwas no meaningful argument on this claim in his opening brief, it is waived.”).\nNevertheless, Meyer’s conclusions are contrary to substantial precedent from other\ncircuits that have determined that Form 4340s are highly probative evidence and that\nhave rejected similar claims made by taxpayers in other cases. See, e.g., Hughes v.\nUnited States, 953 F.2d 531, 539-40 (9th Cir. 1992) (rejecting a taxpayer’s argument\nthat Form 4340s are inadmissible because they are hearsay and because they were\n“generated by a computer, and the government did not lay the foundation necessary\nfor the admission of such computerized evidence”); Hansen v. United States, 7 F.3d\n137, 138 (9th Cir. 1993) (per curiam) (rejecting a taxpayer’s claim that “Form 4340\nis a computer-generated form prepared exclusively for litigation and that it therefore\ncannot be relied on as evidence”).\n\n For the foregoing reasons, the Government established both the existence and\nproper mailing of NODs for tax years 2002 and 2009, and Meyer has not offered any\npersuasive evidence to the contrary. We therefore affirm the district court’s orders\n\n -5-\n\fgranting the Government’s motion for summary judgment and denying Meyer’s cross\nmotion for summary judgment.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362400/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	LOKEN	GRUENDER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585147/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Joseph D. MEYER, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3463\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Joseph D. Meyer\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 15, 2018\n Filed: January 28, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n\n Joseph Meyer failed to file timely federal income tax returns for tax years 2002\nand 2009, and the Government levied tax assessments. Meyer maintains that those\nassessments are invalid because the Internal Revenue Service (“IRS”) failed to follow\nInternal Revenue Code provisions requiring it to mail a notice of deficiency (“NOD”\nor “ninety-day letter”) to him for each tax year before assessing deficiencies. The\n\fdistrict court1 granted the Government’s motion for summary judgment and denied\nMeyer’s cross motion for summary judgment. Meyer appeals both orders. We affirm.\n\n We review de novo district court orders on summary judgment. RSA 1 Ltd.\nP'ship v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015).\nSummary judgment is proper if the movant “shows that there is no genuine dispute\nas to any material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a).\n\n Before assessing liability for unpaid taxes, the IRS must send a NOD to the\ntaxpayer’s last known address by certified mail or registered mail. 26 U.S.C.\n§§ 6212(a), 6213(a). Within ninety days after the NOD is mailed, “the taxpayer may\nfile a petition with the Tax Court for a redetermination of the deficiency.” 26 U.S.C.\n§ 6213(a). Absent proper mailing of the NOD, subsequent assessments may be\nenjoined. Id.\n\n The Government bears the burden of proving that the IRS properly mailed a\nNOD “by competent and persuasive evidence.” Welch v. United States, 678 F.3d\n1371, 1378 (Fed. Cir. 2012). It is entitled to a rebuttable presumption of proper\nmailing if it “(a) shows that the notice of deficiency existed and (b) produces a\nproperly completed Postal Form 3877 certified mail log (or equivalent).” O’Rourke\nv. United States, 587 F.3d 537, 540 (2d Cir. 2009) (per curiam). The Government\nmay also meet its burden with evidence that is “otherwise sufficient.” Id.\n“[S]ufficiently corroborative evidence in the form of testimony, correspondence, habit\nevidence, or otherwise” will establish both “the existence of the notice of deficiency\nand of timely mailing.” Welch, 678 F.3d at 1380.\n\n In these types of cases, the Government often produces IRS Form 4340, “which\nis a computer generated form that reflects the taxes assessed to and paid by the\n\n\n 1\n The Honorable Ann D. Montgomery, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\ftaxpayer in a particular year.” United States v. Jimenez, 513 F.3d 62, 79 n.4 (3d Cir.\n2008). There is “substantial precedent” that Form 4340 is an “appropriate source[]\nevidencing the IRS’s assessment and notice of tax arrears.” Perez v. United States,\n312 F.3d 191, 195 (5th Cir. 2002) (per curiam). Many courts regard it as\n“presumptive proof of a valid assessment.” Cropper v. Comm’r, 826 F.3d 1280, 1287\n(10th Cir. 2016); United States v. White, 466 F.3d 1241, 1248 (11th Cir. 2006);\nUnited States v. Filson, 347 F. App’x 987, 990 (5th Cir. 2009) (per curiam);\nGeiselman v. United States, 961 F.2d 1, 6 (1st Cir. 1992) (per curiam); United States\nv. Zarra, 477 F. App’x 859, 860 (3d Cir. 2012); see also Laszloffy v. Comm’r, 297 F.\nApp’x 628, 629 (9th Cir. 2008) (affirming a grant of summary judgment in favor of\nthe Government because “Form 4340 established that the IRS made a valid tax\nassessment and sent [the taxpayer] a proper notice of assessment and demand for\npayment”).\n\n The Government did not produce a Postal Form 3877 for either tax year 2002\nor 2009. Thus, the rebuttable presumption of proper mailing does not apply. But the\nGovernment did produce a Form 4340 for both years. It also produced a copy of the\nNOD for tax year 2002 and a Case History Report for tax year 2009.\n\n Meyer acknowledges that “Forms 4340 have been routinely admitted in many\ntax cases” but claims that they are inadequate in this case because they do not indicate\nwhen the NODs were mailed. While the Form 4340s do not show when the NODs\nwere mailed, they do show the dates when the Government assessed deficiencies\nagainst Meyer. They also explain that those assessments were made “per default of\n90 day letter.” This explanation is sufficient to establish that the NOD was mailed\nwhen a copy of the NOD was also produced during discovery. See United States v.\nRohner, 634 F. App’x 495, 501-02 (6th Cir. 2015) (affirming a district court’s finding\nthat the Government “met its burden to present the requisite ‘otherwise sufficient’\nevidence” when it produced copies of the notices and when “each Form 4340 stated\nthat additional tax had been assessed ‘per default of 90 day letter’”). Because the\n\n\n\n -3-\n\fGovernment produced a copy of the NOD and Form 4340 for tax year 2002, it\nestablished both the existence and proper mailing of the NOD for that year.\n\n The Government did not produce a copy of the NOD for the 2009 tax year, but\nit submitted a Case History Report that describes steps taken by the IRS officer\nassigned to Meyer’s case. This report provides additional evidence of both the\nexistence and mailing of the NOD for 2009. It states that on January 3, 2013, the\nofficer was “[s]ending to have 90 day letter issued” and indicates that the NOD was,\nin fact, issued on January 25, 2013. Also, as the district court noted, “the 2009 Form\n4340 reflects that tax was assessed ‘per default of 90 day letter’ on June 10, 2013,\nwhich is more than 90 days from when the NOD was allegedly sent, [on] January 25,\n2013.” United States v. Meyer, No. 16-774, 2017 WL 3016761, at *6 (D. Minn. July\n14, 2017). We conclude that the Case History Report and the Form 4340 produced\nby the Government establish both the existence and mailing of the NOD for tax year\n2009.\n\n Meyer states that he did not receive the NODs and claims that this is sufficient\nto rebut any presumption of proper mailing under the common-law mailbox rule. But\nthe mailbox rule is inapplicable here. First, it creates a presumption of receipt of mail\nafter the sender establishes proper mailing. See, e.g., Ark. Motor Coaches, Ltd., Inc.\nv. Comm’r, 198 F.2d 189, 191 (8th Cir. 1952) (“Where, as in this case, matter is\ntransmitted by the United States mails, properly addressed and postage fully prepaid,\nthere is a strong presumption that it will be received by the addressee in the ordinary\ncourse of the mails.”); In re Cendant Corp. Prides Litig., 311 F.3d 298, 304 (3d Cir.\n2002) (“The common law has long recognized a presumption that an item properly\nmailed was received by the addressee.”). Second, Meyer does not cite any precedent\ntying the mailbox rule to disputes involving the IRS and its obligation to send NODs\nbefore assessing deficiencies. Third, Meyer disregards 26 U.S.C. § 6212, which\n“does not require actual receipt of the mailing.” See Pagonis v. United States, 575\nF.3d 809, 813 (8th Cir. 2009) (stating that “a notice sent by certified mail to a\ntaxpayer’s last known address complies with the statutory requirements, even if it is\n\n -4-\n\freturned unclaimed”). Indeed, “[t]hat the taxpayer did not receive actual notice of the\ndeficiency is irrelevant.” United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976).\nFor all these reasons, Meyer’s claim that he did not receive the NODs does nothing\nto undermine the dispositive evidence of proper mailing produced by the\nGovernment.\n\n Finally, in his reply brief, Meyer challenges the reliability and admissibility of\nForm 4340s by claiming that (1) their creation involves the translation of digital\ninformation into plain language, (2) this translation creates new, inadmissible\nevidence, (3) Form 4340s are not “duly published systems of records, and maintaining\nsuch systems is a crime,” and (4) because the maintenance of Form 4340s is a crime,\nthey cannot qualify as public records and are inadmissible hearsay. We need not\nconsider these claims because they appear for the first time in a reply brief. See\nBarham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006) (“As\na general rule, we will not consider arguments raised for the first time in a reply\nbrief.”); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (“Since there\nwas no meaningful argument on this claim in his opening brief, it is waived.”).\nNevertheless, Meyer’s conclusions are contrary to substantial precedent from other\ncircuits that have determined that Form 4340s are highly probative evidence and that\nhave rejected similar claims made by taxpayers in other cases. See, e.g., Hughes v.\nUnited States, 953 F.2d 531, 539-40 (9th Cir. 1992) (rejecting a taxpayer’s argument\nthat Form 4340s are inadmissible because they are hearsay and because they were\n“generated by a computer, and the government did not lay the foundation necessary\nfor the admission of such computerized evidence”); Hansen v. United States, 7 F.3d\n137, 138 (9th Cir. 1993) (per curiam) (rejecting a taxpayer’s claim that “Form 4340\nis a computer-generated form prepared exclusively for litigation and that it therefore\ncannot be relied on as evidence”).\n\n For the foregoing reasons, the Government established both the existence and\nproper mailing of NODs for tax years 2002 and 2009, and Meyer has not offered any\npersuasive evidence to the contrary. We therefore affirm the district court’s orders\n\n -5-\n\fgranting the Government’s motion for summary judgment and denying Meyer’s cross\nmotion for summary judgment.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,585,148	UNITED STATES of America, Plaintiff-Appellee v. Chavez SPOTTED HORSE, Defendant-Appellant	United States v. Chavez Spotted Horse	2019-01-28	18-1139	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1139\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Chavez Spotted Horse\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: December 14, 2018\n Filed: January 28, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\nERICKSON, Circuit Judge.\n\n A jury convicted Chavez Spotted Horse of Receipt of Images Depicting the\nSexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1),\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\fand 2256(2)(A).2 The district court3 sentenced Spotted Horse to a term of 78 months’\nimprisonment. Spotted Horse appeals, arguing the district court erred by (1) denying\nhis motion for a mistrial; (2) allowing the government’s expert to testify outside the\nscope of the expert notice provided under Fed. R. Crim. P. 16 (“Rule 16 notice”); and\n(3) refusing to replace an emotional juror. Finding no abuse of discretion by the\ndistrict court, we affirm.\n\nI. Background\n\n In February 2015, while monitoring the Internet for suspected peer-to-peer\nactivity involving child pornography, agents of the North Dakota Internet Crimes\nAgainst Children Task Force were alerted that an unknown computer was requesting\nimages containing child pornography. An administrative subpoena was issued to the\ninternet service provider to obtain the location of and person’s name assigned to the\nIP address. The IP address was assigned to Spotted Horse and Kristi Geigle in Little\nEagle, South Dakota.\n\n The North Dakota agents transferred their information to the South Dakota\nDivision of Criminal Investigation. Law enforcement officers in South Dakota\nrequested assistance from the Federal Bureau of Investigation since the suspected\npremises was located on the Standing Rock Indian Reservation. Agents executed a\nsearch warrant at Spotted Horses’s residence on November 3, 2015. They seized\nthree laptop computers, numerous CDs, hard drives, a tablet, a digital camera, and\n\n\n 2\n Spotted Horse was also convicted of Possession of Images Depicting the\nSexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),\n2252A(b)(2), and 2256(8). The court granted the government’s motion to dismiss\nthis count before sentencing.\n 3\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\fdigital media. One of the laptops examined was set up in a “RAID” configuration.\nA computer configured in a RAID divides the operating system between more than\none hard drive. According to the government’s forensic expert, when the operating\nsystem is spanned between two or more hard drives, many of the file attributes and\nsometimes the file path and file name are lost. Such a configuration hampers the\nability to examine the computer’s contents because the only way for two or more\ndrives to function together is to run the computer with the password. Given the risk\nof altering evidence by operating Spotted Horse’s computer, the government’s expert\nimaged two hard drives seized by law enforcement. A forensic examination of the\nimaged hard drives revealed 1,044 images, of which 246 were considered child\npornography. Included were images determined to be from known child pornography\nseries, including the Vicky series and the Lolita series. The examination further\nrevealed that some of the images were found on both drives, even though the laptop\nwas set up in a RAID configuration. The government’s expert opined the images\nfound on the drives were placed on the computer after the RAID was created.\n\n Spotted Horse voluntarily participated in an interview with a law enforcement\nofficer. He initially denied accessing child pornography on the Internet. Spotted\nHorse subsequently admitted to viewing child pornography three to five times a\nmonth for the preceding two to three years, with the most recent viewing the week\nbefore execution of the search warrant. Spotted Horse indicated to the officer that he\nattempted to conceal his activities by using a Tor Browser to hide his IP address when\naccessing child pornography and by utilizing “wiping” software to delete images.\nSpotted Horse provided information to the officer regarding the computers he used\nto access child pornography.\n\n Spotted Horse was charged with receipt and possession of child pornography.\nDuring the three-day trial, the government’s evidence included testimony from a\nforensic expert, Spotted Horse’s recorded interview with law enforcement, and 14\nimages of child pornography. The jury convicted Spotted Horse on both counts.\n\n -3-\n\fBefore sentencing, the court granted the government’s motion to dismiss the\npossession count. On the receipt count, the court sentenced Spotted Horse to 78\nmonths’ imprisonment to be followed by five years of supervision.4 This timely\nappeal followed.\n\nII. Discussion\n\n A. Forensic Expert Testimony\n\n Spotted Horse argues the district court erred when it allowed the government’s\nforensic expert to testify as to three issues: (1) her opinion on how and when\ninformation from the laptop was stored onto the hard drives; (2) the fact she had\nreviewed the transcript of Spotted Horse’s recorded interview with law enforcement;\nand (3) the age of a girl in one of the images from a series known by law enforcement\nto contain child pornography. As a consequence of the court’s refusal to discuss the\nfirst two evidentiary disputes at sidebar, the prosecutor announced in front of the jury\nthat Spotted Horse had hired his own forensic expert who talked to the government’s\nexpert. Spotted Horse did not call a forensic expert at trial. He asserts the\nconveyance of this additional information was “highly prejudicial” because the jury\n“undoubtedly” speculated about why his expert did not testify. Spotted Horse moved\nfor a mistrial based on the admission of evidence that was purportedly outside the\nscope of the government’s Rule 16 notice and which “sent conflicting and confusing\nsignals to the jury.”\n\n This Court reviews the denial of a motion for a mistrial under the abuse of\ndiscretion standard. United States v. Kopecky, 891 F.3d 340, 343 (8th Cir. 2018)\n(citing United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)). We “review\n\n 4\n The sentence in this case was ordered to be served consecutive to the sentence\nimposed in South Dakota District Court Case No.1:17-cr-10005, Eighth Circuit Court\nof Appeals No. 18-1138.\n\n -4-\n\fevidentiary rulings ‘for clear abuse of discretion, reversing only when an improper\nevidentiary ruling affected the defendant’s substantial rights or had more than a slight\ninfluence on the verdict.’” Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir.\n2011) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)).\n\n\n As noted by the district court, the expert notice was broad and covered a variety\nof subjects, including, as examples, the expert’s knowledge pertaining to storage of\nInternet searches in general terms and/or as applied in this case, her knowledge\nregarding the process of saving downloaded material in general terms and/or as\napplied in this case, her understanding of time stamps on data in general terms and/or\nas applied in this case, her knowledge and understanding of common methods of\n“wiping” or “sanitizing” computers and hard drives to remove evidence of child\npornography, and her knowledge and opinions regarding the examination of computer\nmedia seized in this particular case. Expert testimony pertaining to the laptop’s\nRAID configuration and the expert’s opinions regarding when the images were stored\non the hard drives are subjects clearly within the scope of the Rule 16 notice.\n\n\n The district court did not explicitly address Spotted Horse’s objection that the\nexpert’s revelation that the transcript of Spotted Horse’s law enforcement interview\nwas outside the scope of the Rule 16 notice. Rather, the court determined the\ntestimony was admissible, concluding:\n\n\n An expert may rely on studies, may rely on experience. And she may\n rely on anything that’s part of the record here. And the transcript --\n actually the recording itself is part of the record here, that any expert\n would be expected to review along with all the other evidence in the\n case before expressing an opinion and coming to court to testify.\n\n\nAfter further discussion about the expert’s review of the transcript, the court\nreiterated: “Well, obviously, as I said, she is in fact obligated to look at the entire file\n\n -5-\n\fincluding the transcript and she has done that. She shouldn't be coming to court and\ntestifying as an expert unless she is very familiar with the file.”\n\n\n Fed. R. Crim. P. 16(a)(1)(G) requires the government to disclose, upon request,\na summary “describ[ing] the [expert] witness’s opinions, the bases and reasons for\nthose opinions, and the witness’s qualifications.” Spotted Horse has not shown a\nRule 16 violation. The rule does not require a recitation of every piece of information\nin the case that the expert reviewed. It requires notice, in summary fashion, of the\nexpert’s opinions, bases for the opinions, and reasons for the opinions. More\nimportantly, at most, the record demonstrates that any information obtained by\nreviewing the transcript corroborated the expert’s opinions rather than formed the\nbasis for her opinions.\n\n\n We find no significance, no evidence of jury confusion, and no evidence of\npossible prejudice arising from the expert’s review of the transcript of the recording\nrather than the recording itself. The recording was admitted at trial. The jury was\nfree to reject any expert opinion that they found to be inconsistent with the evidence.\nFurther, the court controlled the scope of the expert testimony. While the court\npermitted the expert to testify that she reviewed the transcript of Spotted Horse’s\ninterview, it directed the prosecutor to move on when he tried to elicit statements\nSpotted Horse made during the interview through the expert. The court did not abuse\nits discretion by allowing the expert to inform the jury that she reviewed the transcript\nof Spotted Horse’s interview with law enforcement.\n\n\n As the court was entertaining arguments about the scope of permissible expert\ntestimony, the prosecutor said: “I would point out to the Court [defense counsel] did\nhave an expert and his expert did talk with out expert pretrial so that they could\ndiscuss these matters - -.” Because Spotted Horse did not object to the prosecutor’s\nfleeting comment about the government’s expert consulting with Spotted Horse’s\n\n -6-\n\fexpert, who was not called as a witness at trial, we review his claim for plain error.\nChism, 638 F.3d at 640.\n\n\n “Under plain error review, we will only reverse where the error was plain,\naffected the party’s substantial rights, and ‘seriously affects the fairness, integrity, or\npublic reputation of judicial proceedings.’” Id. (quoting United States v. Farrell, 563\nF.3d 364, 377 (8th Cir. 2009)). Spotted Horse has not identified any evidence that\nthe jury “undoubtedly” wondered what happened to his expert, or that the jury gave\nany consideration to this statement made during what turned out to be a fairly\nextensive colloquy regarding the scope of permissible expert testimony. While it\nwould have been preferable to make the arguments outside the jury’s presence, we do\nnot find the prosecutor’s fleeting reference to Spotted Horse’s expert affected Spotted\nHorse’s substantial rights or affected the fairness or integrity of the trial. The district\ncourt did not abuse its discretion in denying a mistrial based on these claimed errors.\n\n\n The court also allowed the expert to testify as to the age of a girl in a “known\nseries” of child pornography found on Spotted Horse’s computer. The expert testified\nthat a “known series” is one in which the child depicted in an image has been\nidentified and the child’s age verified. In this case, the expert informed the jury that\nthe age of the girl depicted in a Vicky series image found on Spotted Horse’s laptop\nwas 10 or 11 years old at the time the photograph was taken.\n\n\n Spotted Horse argues this testimony was outside the scope of the Rule 16\nnotice. This testimony was clearly within the scope of the notice. The notice\nincluded expert testimony regarding the expert’s knowledge of law enforcement’s\nutilization of the National Center for Missing and Exploited Children and her\nknowledge and personal recognition of known child pornography series. Spotted\nHorse’s argument that the testimony was outside of the scope of the expert notice is\nwithout merit.\n\n -7-\n\f B. Request to Seat Alternate Juror\n\n\n Spotted Horse argues the district court was required to replace a juror who\ncried when images of child pornography were published at trial during the\ngovernment’s case-in-chief. We have explained the standard for replacing a juror as\nfollows:\n\n The decision to replace a juror with an alternate juror is committed to\n the discretion of the trial court. If the record shows a legitimate basis for\n the district court's decision to retain the juror, there is no abuse of\n discretion. Absent a showing of actual bias on the part of a prospective\n juror, this court should defer to the discretion of the trial court on a\n motion for mistrial related to the composition of the jury. Finally, a\n district court does not abuse its discretion by refusing to excuse a\n challenged juror after the juror affirmed their impartiality and the judge\n favorably evaluated their demeanor. The courts presume that a\n prospective juror is impartial, and a party seeking to strike a venire\n member for cause must show that the prospective juror is unable to lay\n aside his or her impressions or opinions and render a verdict based on\n the evidence presented in court. Essentially, to fail this standard, a juror\n must profess his inability to be impartial and resist any attempt to\n rehabilitate his position.\nUnited States v. Dale, 614 F.3d 942, 959 (8th Cir. 2010) (internal quotations and\ncitations omitted).\n\n\n Spotted Horse raised no concern about the emotional juror when it happened.\nThe issue was brought to the court’s attention for the first time after the parties had\nrested and the prosecutor was about to commence his closing argument. The court\ndenied Spotted Horse’s request for individual voir dire of the juror. Before officially\nreleasing the alternate juror, the court identified the alternate juror and asked whether\nthe other twelve jurors were “feeling okay” and whether they were “able to proceed\n\n\n -8-\n\fwith no problem.” No juror expressed any concern. A juror’s emotional reaction to\nseeing images of child pornography does not render a juror unable to be fair and\nimpartial or establish that a juror’s objectivity has been compromised. “The tears of\na juror may reflect a sympathetic nature, but standing alone [do] not demonstrate\nincompetency.” United States v. Marchant, 774 F.2d 888, 895 (8th Cir. 1985). The\nrecord is devoid of any evidence that the juror impacted by images of child\npornography was unable to be fair or impartial. The district court did not abuse its\ndiscretion by refusing to remove the juror.\n\n\nIII. Conclusion\n\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362401/", "author_raw": "ERICKSON, Circuit Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585148/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Chavez SPOTTED HORSE, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1139\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Chavez Spotted Horse\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: December 14, 2018\n Filed: January 28, 2019\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\nERICKSON, Circuit Judge.\n\n A jury convicted Chavez Spotted Horse of Receipt of Images Depicting the\nSexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1),\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\fand 2256(2)(A).2 The district court3 sentenced Spotted Horse to a term of 78 months’\nimprisonment. Spotted Horse appeals, arguing the district court erred by (1) denying\nhis motion for a mistrial; (2) allowing the government’s expert to testify outside the\nscope of the expert notice provided under Fed. R. Crim. P. 16 (“Rule 16 notice”); and\n(3) refusing to replace an emotional juror. Finding no abuse of discretion by the\ndistrict court, we affirm.\n\nI. Background\n\n In February 2015, while monitoring the Internet for suspected peer-to-peer\nactivity involving child pornography, agents of the North Dakota Internet Crimes\nAgainst Children Task Force were alerted that an unknown computer was requesting\nimages containing child pornography. An administrative subpoena was issued to the\ninternet service provider to obtain the location of and person’s name assigned to the\nIP address. The IP address was assigned to Spotted Horse and Kristi Geigle in Little\nEagle, South Dakota.\n\n The North Dakota agents transferred their information to the South Dakota\nDivision of Criminal Investigation. Law enforcement officers in South Dakota\nrequested assistance from the Federal Bureau of Investigation since the suspected\npremises was located on the Standing Rock Indian Reservation. Agents executed a\nsearch warrant at Spotted Horses’s residence on November 3, 2015. They seized\nthree laptop computers, numerous CDs, hard drives, a tablet, a digital camera, and\n\n\n 2\n Spotted Horse was also convicted of Possession of Images Depicting the\nSexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),\n2252A(b)(2), and 2256(8). The court granted the government’s motion to dismiss\nthis count before sentencing.\n 3\n The Honorable Charles B. Kornmann, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\fdigital media. One of the laptops examined was set up in a “RAID” configuration.\nA computer configured in a RAID divides the operating system between more than\none hard drive. According to the government’s forensic expert, when the operating\nsystem is spanned between two or more hard drives, many of the file attributes and\nsometimes the file path and file name are lost. Such a configuration hampers the\nability to examine the computer’s contents because the only way for two or more\ndrives to function together is to run the computer with the password. Given the risk\nof altering evidence by operating Spotted Horse’s computer, the government’s expert\nimaged two hard drives seized by law enforcement. A forensic examination of the\nimaged hard drives revealed 1,044 images, of which 246 were considered child\npornography. Included were images determined to be from known child pornography\nseries, including the Vicky series and the Lolita series. The examination further\nrevealed that some of the images were found on both drives, even though the laptop\nwas set up in a RAID configuration. The government’s expert opined the images\nfound on the drives were placed on the computer after the RAID was created.\n\n Spotted Horse voluntarily participated in an interview with a law enforcement\nofficer. He initially denied accessing child pornography on the Internet. Spotted\nHorse subsequently admitted to viewing child pornography three to five times a\nmonth for the preceding two to three years, with the most recent viewing the week\nbefore execution of the search warrant. Spotted Horse indicated to the officer that he\nattempted to conceal his activities by using a Tor Browser to hide his IP address when\naccessing child pornography and by utilizing “wiping” software to delete images.\nSpotted Horse provided information to the officer regarding the computers he used\nto access child pornography.\n\n Spotted Horse was charged with receipt and possession of child pornography.\nDuring the three-day trial, the government’s evidence included testimony from a\nforensic expert, Spotted Horse’s recorded interview with law enforcement, and 14\nimages of child pornography. The jury convicted Spotted Horse on both counts.\n\n -3-\n\fBefore sentencing, the court granted the government’s motion to dismiss the\npossession count. On the receipt count, the court sentenced Spotted Horse to 78\nmonths’ imprisonment to be followed by five years of supervision.4 This timely\nappeal followed.\n\nII. Discussion\n\n A. Forensic Expert Testimony\n\n Spotted Horse argues the district court erred when it allowed the government’s\nforensic expert to testify as to three issues: (1) her opinion on how and when\ninformation from the laptop was stored onto the hard drives; (2) the fact she had\nreviewed the transcript of Spotted Horse’s recorded interview with law enforcement;\nand (3) the age of a girl in one of the images from a series known by law enforcement\nto contain child pornography. As a consequence of the court’s refusal to discuss the\nfirst two evidentiary disputes at sidebar, the prosecutor announced in front of the jury\nthat Spotted Horse had hired his own forensic expert who talked to the government’s\nexpert. Spotted Horse did not call a forensic expert at trial. He asserts the\nconveyance of this additional information was “highly prejudicial” because the jury\n“undoubtedly” speculated about why his expert did not testify. Spotted Horse moved\nfor a mistrial based on the admission of evidence that was purportedly outside the\nscope of the government’s Rule 16 notice and which “sent conflicting and confusing\nsignals to the jury.”\n\n This Court reviews the denial of a motion for a mistrial under the abuse of\ndiscretion standard. United States v. Kopecky, 891 F.3d 340, 343 (8th Cir. 2018)\n(citing United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)). We “review\n\n 4\n The sentence in this case was ordered to be served consecutive to the sentence\nimposed in South Dakota District Court Case No.1:17-cr-10005, Eighth Circuit Court\nof Appeals No. 18-1138.\n\n -4-\n\fevidentiary rulings ‘for clear abuse of discretion, reversing only when an improper\nevidentiary ruling affected the defendant’s substantial rights or had more than a slight\ninfluence on the verdict.’” Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir.\n2011) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)).\n\n\n As noted by the district court, the expert notice was broad and covered a variety\nof subjects, including, as examples, the expert’s knowledge pertaining to storage of\nInternet searches in general terms and/or as applied in this case, her knowledge\nregarding the process of saving downloaded material in general terms and/or as\napplied in this case, her understanding of time stamps on data in general terms and/or\nas applied in this case, her knowledge and understanding of common methods of\n“wiping” or “sanitizing” computers and hard drives to remove evidence of child\npornography, and her knowledge and opinions regarding the examination of computer\nmedia seized in this particular case. Expert testimony pertaining to the laptop’s\nRAID configuration and the expert’s opinions regarding when the images were stored\non the hard drives are subjects clearly within the scope of the Rule 16 notice.\n\n\n The district court did not explicitly address Spotted Horse’s objection that the\nexpert’s revelation that the transcript of Spotted Horse’s law enforcement interview\nwas outside the scope of the Rule 16 notice. Rather, the court determined the\ntestimony was admissible, concluding:\n\n\n An expert may rely on studies, may rely on experience. And she may\n rely on anything that’s part of the record here. And the transcript --\n actually the recording itself is part of the record here, that any expert\n would be expected to review along with all the other evidence in the\n case before expressing an opinion and coming to court to testify.\n\n\nAfter further discussion about the expert’s review of the transcript, the court\nreiterated: “Well, obviously, as I said, she is in fact obligated to look at the entire file\n\n -5-\n\fincluding the transcript and she has done that. She shouldn't be coming to court and\ntestifying as an expert unless she is very familiar with the file.”\n\n\n Fed. R. Crim. P. 16(a)(1)(G) requires the government to disclose, upon request,\na summary “describ[ing] the [expert] witness’s opinions, the bases and reasons for\nthose opinions, and the witness’s qualifications.” Spotted Horse has not shown a\nRule 16 violation. The rule does not require a recitation of every piece of information\nin the case that the expert reviewed. It requires notice, in summary fashion, of the\nexpert’s opinions, bases for the opinions, and reasons for the opinions. More\nimportantly, at most, the record demonstrates that any information obtained by\nreviewing the transcript corroborated the expert’s opinions rather than formed the\nbasis for her opinions.\n\n\n We find no significance, no evidence of jury confusion, and no evidence of\npossible prejudice arising from the expert’s review of the transcript of the recording\nrather than the recording itself. The recording was admitted at trial. The jury was\nfree to reject any expert opinion that they found to be inconsistent with the evidence.\nFurther, the court controlled the scope of the expert testimony. While the court\npermitted the expert to testify that she reviewed the transcript of Spotted Horse’s\ninterview, it directed the prosecutor to move on when he tried to elicit statements\nSpotted Horse made during the interview through the expert. The court did not abuse\nits discretion by allowing the expert to inform the jury that she reviewed the transcript\nof Spotted Horse’s interview with law enforcement.\n\n\n As the court was entertaining arguments about the scope of permissible expert\ntestimony, the prosecutor said: “I would point out to the Court [defense counsel] did\nhave an expert and his expert did talk with out expert pretrial so that they could\ndiscuss these matters - -.” Because Spotted Horse did not object to the prosecutor’s\nfleeting comment about the government’s expert consulting with Spotted Horse’s\n\n -6-\n\fexpert, who was not called as a witness at trial, we review his claim for plain error.\nChism, 638 F.3d at 640.\n\n\n “Under plain error review, we will only reverse where the error was plain,\naffected the party’s substantial rights, and ‘seriously affects the fairness, integrity, or\npublic reputation of judicial proceedings.’” Id. (quoting United States v. Farrell, 563\nF.3d 364, 377 (8th Cir. 2009)). Spotted Horse has not identified any evidence that\nthe jury “undoubtedly” wondered what happened to his expert, or that the jury gave\nany consideration to this statement made during what turned out to be a fairly\nextensive colloquy regarding the scope of permissible expert testimony. While it\nwould have been preferable to make the arguments outside the jury’s presence, we do\nnot find the prosecutor’s fleeting reference to Spotted Horse’s expert affected Spotted\nHorse’s substantial rights or affected the fairness or integrity of the trial. The district\ncourt did not abuse its discretion in denying a mistrial based on these claimed errors.\n\n\n The court also allowed the expert to testify as to the age of a girl in a “known\nseries” of child pornography found on Spotted Horse’s computer. The expert testified\nthat a “known series” is one in which the child depicted in an image has been\nidentified and the child’s age verified. In this case, the expert informed the jury that\nthe age of the girl depicted in a Vicky series image found on Spotted Horse’s laptop\nwas 10 or 11 years old at the time the photograph was taken.\n\n\n Spotted Horse argues this testimony was outside the scope of the Rule 16\nnotice. This testimony was clearly within the scope of the notice. The notice\nincluded expert testimony regarding the expert’s knowledge of law enforcement’s\nutilization of the National Center for Missing and Exploited Children and her\nknowledge and personal recognition of known child pornography series. Spotted\nHorse’s argument that the testimony was outside of the scope of the expert notice is\nwithout merit.\n\n -7-\n\f B. Request to Seat Alternate Juror\n\n\n Spotted Horse argues the district court was required to replace a juror who\ncried when images of child pornography were published at trial during the\ngovernment’s case-in-chief. We have explained the standard for replacing a juror as\nfollows:\n\n The decision to replace a juror with an alternate juror is committed to\n the discretion of the trial court. If the record shows a legitimate basis for\n the district court's decision to retain the juror, there is no abuse of\n discretion. Absent a showing of actual bias on the part of a prospective\n juror, this court should defer to the discretion of the trial court on a\n motion for mistrial related to the composition of the jury. Finally, a\n district court does not abuse its discretion by refusing to excuse a\n challenged juror after the juror affirmed their impartiality and the judge\n favorably evaluated their demeanor. The courts presume that a\n prospective juror is impartial, and a party seeking to strike a venire\n member for cause must show that the prospective juror is unable to lay\n aside his or her impressions or opinions and render a verdict based on\n the evidence presented in court. Essentially, to fail this standard, a juror\n must profess his inability to be impartial and resist any attempt to\n rehabilitate his position.\nUnited States v. Dale, 614 F.3d 942, 959 (8th Cir. 2010) (internal quotations and\ncitations omitted).\n\n\n Spotted Horse raised no concern about the emotional juror when it happened.\nThe issue was brought to the court’s attention for the first time after the parties had\nrested and the prosecutor was about to commence his closing argument. The court\ndenied Spotted Horse’s request for individual voir dire of the juror. Before officially\nreleasing the alternate juror, the court identified the alternate juror and asked whether\nthe other twelve jurors were “feeling okay” and whether they were “able to proceed\n\n\n -8-\n\fwith no problem.” No juror expressed any concern. A juror’s emotional reaction to\nseeing images of child pornography does not render a juror unable to be fair and\nimpartial or establish that a juror’s objectivity has been compromised. “The tears of\na juror may reflect a sympathetic nature, but standing alone [do] not demonstrate\nincompetency.” United States v. Marchant, 774 F.2d 888, 895 (8th Cir. 1985). The\nrecord is devoid of any evidence that the juror impacted by images of child\npornography was unable to be fair or impartial. The district court did not abuse its\ndiscretion by refusing to remove the juror.\n\n\nIII. Conclusion\n\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -9-\n[END_CASE]", "role": "user" } ]
4,585,151	CLARKE COMPANY, LIMITED, Plaintiff - Appellant v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant - Appellee	Clarke Company, Limited v. American Family Mutual Ins. Co	2019-01-28	17-2418	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Melloy, Erickson", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2418\n ___________________________\n\n Clarke Company, Limited\n\n Plaintiff - Appellant\n\n v.\n\n American Family Mutual Insurance Company\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: December 11, 2018\n Filed: January 28, 2019\n [Published]\n ____________\n\nBefore LOKEN, MELLOY, and ERICKSON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Clarke Company, Limited (“Clarke”) commenced this lawsuit against its\ninsurer, American Family Mutual Insurance Company (“American Family”), alleging\nAmerican Family wrongfully denied coverage for defense and indemnity of a lawsuit\n\fbrought against Clarke in state court. The district court1 granted summary judgment\nin favor of American Family. The claims as pled in the underlying state court action\ndid not give rise to a duty to defend. It follows that no duty to indemnify can exist.\nWe affirm.\n\nI. Background\n\n The parties submitted a stipulated record to the district court. From\napproximately 1996 to 2006, Clarke was the developer and general contractor for\ncondominium units known as the Druid Hill Townhome Condominiums located in\nDes Moines, Iowa. From 1997 until September 1, 2006, American Family insured\nClarke through a “Businessowners Policy.” Between October 2006 and October 7,\n2010, Acuity Insurance Company (“Acuity”) insured Clarke.\n\n While the condominium development was underway, Clarke formed the Druid\nHill Townhome Condominium Association (“HOA”). The HOA was responsible for\nthe exteriors and structures of the buildings Clarke developed. The individual unit\nowners owned portions of the HOA and controlled the interior space in their\nrespective units. Clarke first received complaints of water intrusion from unit owners\nin the summer of 2008. Minor repairs, such as caulking, were undertaken. These\nrepairs did not stop the water intrusion complaints.\n\n Additional and more major repairs began in the spring of 2010. Repairs were\nmade to the roofs, Exterior Insulation Flashing System, decks and columns, drainage\ntile, and around the windows. In June 2010, the HOA commenced an action in Iowa\nstate court against Clarke for damages resulting from defective construction. The\nHOA alleged Clarke’s defective construction was latent until the 2009–2010 winter\n\n\n 1\n The Honorable Stephanie M. Rose, United States District Judge for the\nSouthern District of Iowa.\n\n -2-\n\fwhen defects allowed ice dams to develop and water to infiltrate the units.\nSpecifically, the petition alleged:\n\n 15. Between 1999 and 2007, Clarke constructed and sold a number of\n Units at the Druid Hill Development.\n ***\n 17. During the Winter of 2009–2010, ice dams developed and formed\n on the Units. Due to Clarke Company’s defective construction,\n this allowed large amounts of water to enter, infiltrate and\n accumulate in the Units.\n\n 18. The water that infiltrated the Units caused damage to the Units\n and also caused mold to grow inside the walls of a number of\n Units.\n\n 19. Clarke Company’s defective construction was hidden and was not\n something that could be previously discovered by the Unit\n Owners.\n\n 20. Subsequent inspections in 2010 have shown that the damage\n sustained was caused by Clarke Company’s defective\n construction, including, but not limited to, Clarke Company’s\n defective construction of the roofs, the flashing, the Exterior\n Insulation Finishing System (“EFIS”), and in numerous other\n areas.\n\n Clarke gave American Family notice of the lawsuit and requested a defense and\nindemnification. Clarke provided the petition and its answer; 50 photographs\ndepicting ice damming, snow build-up on the roof, frost and ice in the attic and roof\ndeck, and water damage to the units; and other emails and correspondence to\nAmerican Family. Consistent with the allegations in the petition, a May 2010 expert\nreport concluded the moisture problems were related to improper positioning of the\nEFIS, defective sheathing, and lack of kick-out flashing. Emails from the HOA’s\n\n\n\n -3-\n\fattorney indicated problems with drainage tile around the units, the culture stone, and\nlack of kick-out flashing.\n\n On December 1, 2010, American Family denied coverage for several reasons,\nincluding its determination that the property damage occurring in the 2009–2010\nwinter fell outside the policy period. For a period of time, Acuity provided a defense\nfor Clarke under a reservation of rights. Clarke settled the lawsuit in August 2011.\nAs part of the settlement, Clarke contributed $525,000 to a trust account, which was\nlater disbursed to the HOA. Acuity paid $225,000 to partially fund the settlement.\nClarke paid attorneys fees and costs in the amount of $113,167.69.\n\n On July 21, 2015, Clarke commenced this action against American Family for\nbreach of contract for failure to defend and indemnify it against the HOA claims. In\n2016, the HOA retained a construction expert to help identify areas of excessive\nmoisture around the windows and siding and, if possible, the cause of the moisture\nproblems. The expert prepared a report in July 2016. The expert opined the original\nconstruction resulted in property damage. The expert further opined that “[t]he\nresulting property damage was likely severe and widespread by Summer 2006, even\nif it was not observed by the unit owners or the management company.” American\nFamily stipulated that it was aware of no evidence to contradict the conclusions in the\nexpert’s report.\n\nII. Discussion\n\n Whether the claims against Clarke are covered under American Family’s policy\nrequires us to review de novo the district court's interpretation of the insurance\ncontract, as well as its decision to grant summary judgment. Great W. Cas. Co. v.\nNat'l Cas. Co., 807 F.3d 952, 956 (8th Cir. 2015). Summary judgment is required “if\nthe movant shows that there is no genuine dispute as to any material fact and the\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\n\n -4-\n\f Under Iowa law, which governs this case, an insurer’s “duty to defend arises\n‘whenever there is potential or possible liability to indemnify the insured based on the\nfacts appearing at the outset of the case.’” Employers Mut. Cas. Co. v. Cedar Rapids\nTelevision Co., 552 N.W.2d 639, 641 (Iowa 1996) (quoting A.Y. McDonald Indus.,\nInc. v. Ins. Co. of N. Am., 475 N.W.2d 607, 627 (Iowa 1991)) (emphasis in original).\nStated another way by the Iowa Supreme Court, “the duty to defend rests solely on\nwhether the petition contains any allegations that arguably or potentially bring the\naction within the policy coverage.” Id. (emphasis in original). Although courts are\nto look first and primarily at the petition, the scope of inquiry may be expanded when\nnecessary to “any other admissible and relevant facts in the record.” First Newton\nNat’l Bank v. General Cas. Co., 426 N.W.2d 618, 623 (Iowa 1988).\n\n Additionally, as pointed out by Clarke, under Iowa law, “[i]f any claim alleged\nagainst the insured can rationally be said to fall within such coverage, the insurer must\ndefend the entire action.” A.Y. McDonald Indus., Inc., 475 N.W.2d at 627. Any\ndoubt must be resolved in favor of the insured. Id.\n\n The relevant insurance policy provisions contain standard language typically\nfound in occurrence policies:\n\n SECTION II – LIABILITY\n A. Coverages\n 1. Business Liability\n a. We will pay those sums that the insured becomes\n legally obligated to pay as damages because of . . .\n ‘property damage’ . . . to which this insurance\n applies. We will have the right and duty to defend\n the insured against any ‘suit’ seeking those damages.\n However, we will have no duty to defend the insured\n against any ‘suit’ seeking damages for . . . ‘property\n damage’ . . . to which this insurance does not apply.\n ...\n\n\n -5-\n\f b. This insurance applies:\n (1) To . . . ‘property damage’ only if:\n (a) The . . . ‘property damage’ is caused by\n an ‘occurrence’ that takes place in the\n ‘coverage territory’;\n (b) The . . . ‘property damage’ occurs\n during the policy period; and\n (c) Prior to the policy period, no insured .\n . . and no ‘employee’ authorized by you\n to give or receive notice of an\n ‘occurrence’ or claim, knew that the . .\n . ‘property damage’ had occurred, in\n whole or in part. . . .\n\n The record plainly demonstrates the HOA sustained property damage for water\ninfiltration caused by a number of construction defects that were discovered over\nseveral years. The dispute is whether the property damage for which Clarke was held\nresponsible can be found to have occurred during the policy period.\n\n Despite awareness of the variety of construction defects, the petition in the\nunderlying state action unambiguously pled claims for damages caused by ice dams\nduring the 2009–2010 winter. These claims cannot be said to rationally involve\nproperty damage that occurred before the policy period expired on September 1, 2006.\nOn this record, it is apparent Clarke’s defective construction was widespread, involved\nseveral different problems, was latent for several years, and at least some of the\ndefects pre-existed the 2009–2010 winter. However, a claim for damages that\noccurred before the American Family policy expired was never pled against Clarke\nand there was no request to amend the pleading at any time to include such a claim.\nUnder these circumstances, American Family had no duty to defend Clarke in the\naction brought by the HOA in state court.\n\n\n\n\n -6-\n\f In light of our conclusion that American Family had no duty to defend, there\ncan be no duty to indemnify. Stine Seed Farm, Inc. v. Farm Bureau Mut. Ins. Co., 591\nN.W.2d 17, 18 (Iowa 1999) (“[I]f there is no duty to defend, there is no duty to\nindemnify” because the duty to defend is broader than the duty to indemnify.).\n\nIII. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362404/", "author_raw": "PER CURIAM"}]}	LOKEN	MELLOY	ERICKSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585151/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: CLARKE COMPANY, LIMITED, Plaintiff - Appellant v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2418\n ___________________________\n\n Clarke Company, Limited\n\n Plaintiff - Appellant\n\n v.\n\n American Family Mutual Insurance Company\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: December 11, 2018\n Filed: January 28, 2019\n [Published]\n ____________\n\nBefore LOKEN, MELLOY, and ERICKSON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Clarke Company, Limited (“Clarke”) commenced this lawsuit against its\ninsurer, American Family Mutual Insurance Company (“American Family”), alleging\nAmerican Family wrongfully denied coverage for defense and indemnity of a lawsuit\n\fbrought against Clarke in state court. The district court1 granted summary judgment\nin favor of American Family. The claims as pled in the underlying state court action\ndid not give rise to a duty to defend. It follows that no duty to indemnify can exist.\nWe affirm.\n\nI. Background\n\n The parties submitted a stipulated record to the district court. From\napproximately 1996 to 2006, Clarke was the developer and general contractor for\ncondominium units known as the Druid Hill Townhome Condominiums located in\nDes Moines, Iowa. From 1997 until September 1, 2006, American Family insured\nClarke through a “Businessowners Policy.” Between October 2006 and October 7,\n2010, Acuity Insurance Company (“Acuity”) insured Clarke.\n\n While the condominium development was underway, Clarke formed the Druid\nHill Townhome Condominium Association (“HOA”). The HOA was responsible for\nthe exteriors and structures of the buildings Clarke developed. The individual unit\nowners owned portions of the HOA and controlled the interior space in their\nrespective units. Clarke first received complaints of water intrusion from unit owners\nin the summer of 2008. Minor repairs, such as caulking, were undertaken. These\nrepairs did not stop the water intrusion complaints.\n\n Additional and more major repairs began in the spring of 2010. Repairs were\nmade to the roofs, Exterior Insulation Flashing System, decks and columns, drainage\ntile, and around the windows. In June 2010, the HOA commenced an action in Iowa\nstate court against Clarke for damages resulting from defective construction. The\nHOA alleged Clarke’s defective construction was latent until the 2009–2010 winter\n\n\n 1\n The Honorable Stephanie M. Rose, United States District Judge for the\nSouthern District of Iowa.\n\n -2-\n\fwhen defects allowed ice dams to develop and water to infiltrate the units.\nSpecifically, the petition alleged:\n\n 15. Between 1999 and 2007, Clarke constructed and sold a number of\n Units at the Druid Hill Development.\n ***\n 17. During the Winter of 2009–2010, ice dams developed and formed\n on the Units. Due to Clarke Company’s defective construction,\n this allowed large amounts of water to enter, infiltrate and\n accumulate in the Units.\n\n 18. The water that infiltrated the Units caused damage to the Units\n and also caused mold to grow inside the walls of a number of\n Units.\n\n 19. Clarke Company’s defective construction was hidden and was not\n something that could be previously discovered by the Unit\n Owners.\n\n 20. Subsequent inspections in 2010 have shown that the damage\n sustained was caused by Clarke Company’s defective\n construction, including, but not limited to, Clarke Company’s\n defective construction of the roofs, the flashing, the Exterior\n Insulation Finishing System (“EFIS”), and in numerous other\n areas.\n\n Clarke gave American Family notice of the lawsuit and requested a defense and\nindemnification. Clarke provided the petition and its answer; 50 photographs\ndepicting ice damming, snow build-up on the roof, frost and ice in the attic and roof\ndeck, and water damage to the units; and other emails and correspondence to\nAmerican Family. Consistent with the allegations in the petition, a May 2010 expert\nreport concluded the moisture problems were related to improper positioning of the\nEFIS, defective sheathing, and lack of kick-out flashing. Emails from the HOA’s\n\n\n\n -3-\n\fattorney indicated problems with drainage tile around the units, the culture stone, and\nlack of kick-out flashing.\n\n On December 1, 2010, American Family denied coverage for several reasons,\nincluding its determination that the property damage occurring in the 2009–2010\nwinter fell outside the policy period. For a period of time, Acuity provided a defense\nfor Clarke under a reservation of rights. Clarke settled the lawsuit in August 2011.\nAs part of the settlement, Clarke contributed $525,000 to a trust account, which was\nlater disbursed to the HOA. Acuity paid $225,000 to partially fund the settlement.\nClarke paid attorneys fees and costs in the amount of $113,167.69.\n\n On July 21, 2015, Clarke commenced this action against American Family for\nbreach of contract for failure to defend and indemnify it against the HOA claims. In\n2016, the HOA retained a construction expert to help identify areas of excessive\nmoisture around the windows and siding and, if possible, the cause of the moisture\nproblems. The expert prepared a report in July 2016. The expert opined the original\nconstruction resulted in property damage. The expert further opined that “[t]he\nresulting property damage was likely severe and widespread by Summer 2006, even\nif it was not observed by the unit owners or the management company.” American\nFamily stipulated that it was aware of no evidence to contradict the conclusions in the\nexpert’s report.\n\nII. Discussion\n\n Whether the claims against Clarke are covered under American Family’s policy\nrequires us to review de novo the district court's interpretation of the insurance\ncontract, as well as its decision to grant summary judgment. Great W. Cas. Co. v.\nNat'l Cas. Co., 807 F.3d 952, 956 (8th Cir. 2015). Summary judgment is required “if\nthe movant shows that there is no genuine dispute as to any material fact and the\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\n\n -4-\n\f Under Iowa law, which governs this case, an insurer’s “duty to defend arises\n‘whenever there is potential or possible liability to indemnify the insured based on the\nfacts appearing at the outset of the case.’” Employers Mut. Cas. Co. v. Cedar Rapids\nTelevision Co., 552 N.W.2d 639, 641 (Iowa 1996) (quoting A.Y. McDonald Indus.,\nInc. v. Ins. Co. of N. Am., 475 N.W.2d 607, 627 (Iowa 1991)) (emphasis in original).\nStated another way by the Iowa Supreme Court, “the duty to defend rests solely on\nwhether the petition contains any allegations that arguably or potentially bring the\naction within the policy coverage.” Id. (emphasis in original). Although courts are\nto look first and primarily at the petition, the scope of inquiry may be expanded when\nnecessary to “any other admissible and relevant facts in the record.” First Newton\nNat’l Bank v. General Cas. Co., 426 N.W.2d 618, 623 (Iowa 1988).\n\n Additionally, as pointed out by Clarke, under Iowa law, “[i]f any claim alleged\nagainst the insured can rationally be said to fall within such coverage, the insurer must\ndefend the entire action.” A.Y. McDonald Indus., Inc., 475 N.W.2d at 627. Any\ndoubt must be resolved in favor of the insured. Id.\n\n The relevant insurance policy provisions contain standard language typically\nfound in occurrence policies:\n\n SECTION II – LIABILITY\n A. Coverages\n 1. Business Liability\n a. We will pay those sums that the insured becomes\n legally obligated to pay as damages because of . . .\n ‘property damage’ . . . to which this insurance\n applies. We will have the right and duty to defend\n the insured against any ‘suit’ seeking those damages.\n However, we will have no duty to defend the insured\n against any ‘suit’ seeking damages for . . . ‘property\n damage’ . . . to which this insurance does not apply.\n ...\n\n\n -5-\n\f b. This insurance applies:\n (1) To . . . ‘property damage’ only if:\n (a) The . . . ‘property damage’ is caused by\n an ‘occurrence’ that takes place in the\n ‘coverage territory’;\n (b) The . . . ‘property damage’ occurs\n during the policy period; and\n (c) Prior to the policy period, no insured .\n . . and no ‘employee’ authorized by you\n to give or receive notice of an\n ‘occurrence’ or claim, knew that the . .\n . ‘property damage’ had occurred, in\n whole or in part. . . .\n\n The record plainly demonstrates the HOA sustained property damage for water\ninfiltration caused by a number of construction defects that were discovered over\nseveral years. The dispute is whether the property damage for which Clarke was held\nresponsible can be found to have occurred during the policy period.\n\n Despite awareness of the variety of construction defects, the petition in the\nunderlying state action unambiguously pled claims for damages caused by ice dams\nduring the 2009–2010 winter. These claims cannot be said to rationally involve\nproperty damage that occurred before the policy period expired on September 1, 2006.\nOn this record, it is apparent Clarke’s defective construction was widespread, involved\nseveral different problems, was latent for several years, and at least some of the\ndefects pre-existed the 2009–2010 winter. However, a claim for damages that\noccurred before the American Family policy expired was never pled against Clarke\nand there was no request to amend the pleading at any time to include such a claim.\nUnder these circumstances, American Family had no duty to defend Clarke in the\naction brought by the HOA in state court.\n\n\n\n\n -6-\n\f In light of our conclusion that American Family had no duty to defend, there\ncan be no duty to indemnify. Stine Seed Farm, Inc. v. Farm Bureau Mut. Ins. Co., 591\nN.W.2d 17, 18 (Iowa 1999) (“[I]f there is no duty to defend, there is no duty to\nindemnify” because the duty to defend is broader than the duty to indemnify.).\n\nIII. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-\n[END_CASE]", "role": "user" } ]
4,585,384	UNITED STATES of America, Plaintiff - Appellee v. Shaquandis THURMOND, Defendant - Appellant	United States v. Shaquandis Thurmond	2019-01-29	17-3538	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3538\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Shaquandis Thurmond\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Cedar Rapids\n ____________\n\n Submitted: October 15, 2018\n Filed: January 29, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Shaquandis D. Thurmond pled guilty to possessing an unregistered\nshort-barreled shotgun in violation of 26 U.S.C. §§ 5845(a), 5861(d), and 5871. The\ndistrict court1 sentenced him to 35 months’ imprisonment and three years of\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\fsupervised release. After prison, Thurmond violated the conditions of release. The\ncourt sentenced him to four months’ imprisonment and two years of supervised\nrelease. After prison, he again violated the conditions of release. The court\nsentenced him to 10 months’ imprisonment and one year of supervised release. He\nappeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.\n\n I.\n\n At his second revocation hearing, Thurmond admitted four of the six alleged\nviolations. He contested two—association with gang members, and association with\nindividuals “engaged in criminal activity.” The evidence submitted for these\nviolations included pictures of Thurmond with people identified as gang members\nand criminals, testimony from his probation officer, and testimony from a police\nofficer.\n\n This court reviews “findings of fact as to whether or not a violation occurred\nfor clear error.” United States v. Petersen, 848 F.3d 1153, 1156 (8th Cir. 2017).\n“Clear error exists where, viewing the record as a whole,” this court is “left with the\ndefinite and firm conviction that a mistake has been committed.” United States v.\nCotton, 861 F.3d 1275, 1277 (8th Cir. 2017).\n\n The district court found Thurmond associated with known gang members. He\nargues this was error because the court “made no specific finding that Mr. Thurmond\nhad any knowledge that Mr. Willis, Mr. Roby, and Mr. Garner are gang members.”\nAt the revocation hearing, a police officer testified that Willis, Roby, and Garner were\nOT5 gang members. The officer also testified that he and another officer saw\nThurmond leave Garner’s apartment with Willis, Roby, and another man, Tyran\nCollins. Inside, police found marijuana, a marijuana scale, and Thurmond’s work ID.\nThe government introduced pictures of Thurmond with Roby and Willis flashing\n\n\n\n -2-\n\fgang signs. Based on this evidence, the court did not clearly err in finding Thurmond\nassociated with known gang members.\n\n The district court also found Thurmond associated with individuals involved\nin criminal activity. At the revocation hearing, the police officer testified that\nThurmond associated with OT5 gang members who were engaged in drug and firearm\ncrimes. The government also introduced pictures of Collins using drugs and holding\na firearm. Based on this evidence, the court did not clearly err in finding he\nassociated with individuals involved in criminal activity.\n\n II.\n\n Thurmond believes the court erred by not allowing him “to speak during\nallocution regarding his alleged association with gang members.” “The denial of the\nright to presentence allocution is a significant procedural error.” United States v.\nHoffman, 707 F.3d 929, 937 (8th Cir. 2013). Generally, it is reviewed de novo.\nUnited States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998). Where, as here, there is\nno objection, this court reviews for plain error. United States v. Fleetwood, 794 F.3d\n1004, 1005 (8th Cir. 2015). Under plain error review, Thurmond “must show: (1) an\nerror; (2) the error is plain; (3) the error affects his substantial rights; and (4) the error\nseriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”\nUnited States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (internal quotation\nmarks omitted).\n\n At the revocation hearing, the court told Thurmond, “this is the time in the\nproceeding when you have a chance to speak.” Thurmond replied, “Thank you,\neverybody, for your time for coming here today. I wanted to speak on the gang\nsituation. I know I’ve been found guilty, but may I—may I please have time to speak\non that?” The court responded: “No. You can talk to me about anything else, but\nI’ve already made my findings so I really don’t care what you have to say about that\n\n -3-\n\fsubject.” Thurmond did not object but rather provided a lengthy statement (over two\ntranscript pages) on other issues.\n\n Unless waived, a defendant is “entitled to . . . an opportunity to make a\nstatement and present any information in mitigation. Fed. R. Civ. P. 32.1(b)(2)(E).\nThis court need not decide whether the district court erred in applying Rule\n32.1(b)(2)(E) because Thurmond “has not shown any such error ‘affected his\nsubstantial rights and seriously affected the fairness, integrity, or reputation of the\njudicial proceedings.’” Fleetwood, 794 F.3d at 1007, quoting United States v.\nHinkeldey, 626 F.3d 1010, 1012 (8th Cir. 2010).\n\n Having presided over his initial sentencing and first revocation hearing, the\ndistrict court was familiar with Thurmond’s history and multiple violations of\nsupervised release. Although it denied him the opportunity to allocute on its finding\nabout “the gang situation,” it allowed him to speak at length about “anything else.”\nHe did not object to this denial at sentencing, nor does he now state what he would\nhave said. He speculates that he “may very well have intended to speak in\nmitigation” about his association with gang members. However, he does “not furnish\nany information about what he would have allocuted to that might have mitigated his\nsentence.” United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006). In fact, he\ndid not contest the sentence in the district court nor does he now challenge his\nwithin-guidelines sentence.\n\n On these facts—a district judge familiar with the defendant, an opportunity to\nallocute at length about anything but a previous finding, and a failure to state either\nwhat would have been said during allocution or how it would have affected the\nsentence—Thurmond has not shown there is error that “seriously affects the fairness,\nintegrity, or public reputation of judicial proceedings.” Boman, 873 F.3d at 1040.\nSee Hill v. United States, 368 U.S. 424, 428 (1962) (“[Denial of the right to\nallocution] is not a fundamental defect which inherently results in a complete\n\n -4-\n\fmiscarriage of justice, nor an omission inconsistent with the rudimentary demands of\nfair procedure.”); United States v. Avila-Cortez, 582 F.3d 602, 606 (5th Cir. 2009)\n(“[I]f the defendant fails to explain what exactly he or she would have said during\nallocution that might mitigate the sentence, then the case is one of those ‘limited class\nof cases’ in which we will decline to exercise our discretion to correct the error.”);\nUnited States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004) (holding that during\nallocution, “[d]efendants may address the amount or quality of evidence adduced at\ntrial to explain their role in an offense or the severity of their conduct, but not merely\nto continue to deny guilt.”) (internal citations omitted).\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362637/", "author_raw": "BENTON, Circuit Judge."}]}	WOLLMAN	COLLOTON	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585384/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Shaquandis THURMOND, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3538\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Shaquandis Thurmond\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Cedar Rapids\n ____________\n\n Submitted: October 15, 2018\n Filed: January 29, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Shaquandis D. Thurmond pled guilty to possessing an unregistered\nshort-barreled shotgun in violation of 26 U.S.C. §§ 5845(a), 5861(d), and 5871. The\ndistrict court1 sentenced him to 35 months’ imprisonment and three years of\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\fsupervised release. After prison, Thurmond violated the conditions of release. The\ncourt sentenced him to four months’ imprisonment and two years of supervised\nrelease. After prison, he again violated the conditions of release. The court\nsentenced him to 10 months’ imprisonment and one year of supervised release. He\nappeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.\n\n I.\n\n At his second revocation hearing, Thurmond admitted four of the six alleged\nviolations. He contested two—association with gang members, and association with\nindividuals “engaged in criminal activity.” The evidence submitted for these\nviolations included pictures of Thurmond with people identified as gang members\nand criminals, testimony from his probation officer, and testimony from a police\nofficer.\n\n This court reviews “findings of fact as to whether or not a violation occurred\nfor clear error.” United States v. Petersen, 848 F.3d 1153, 1156 (8th Cir. 2017).\n“Clear error exists where, viewing the record as a whole,” this court is “left with the\ndefinite and firm conviction that a mistake has been committed.” United States v.\nCotton, 861 F.3d 1275, 1277 (8th Cir. 2017).\n\n The district court found Thurmond associated with known gang members. He\nargues this was error because the court “made no specific finding that Mr. Thurmond\nhad any knowledge that Mr. Willis, Mr. Roby, and Mr. Garner are gang members.”\nAt the revocation hearing, a police officer testified that Willis, Roby, and Garner were\nOT5 gang members. The officer also testified that he and another officer saw\nThurmond leave Garner’s apartment with Willis, Roby, and another man, Tyran\nCollins. Inside, police found marijuana, a marijuana scale, and Thurmond’s work ID.\nThe government introduced pictures of Thurmond with Roby and Willis flashing\n\n\n\n -2-\n\fgang signs. Based on this evidence, the court did not clearly err in finding Thurmond\nassociated with known gang members.\n\n The district court also found Thurmond associated with individuals involved\nin criminal activity. At the revocation hearing, the police officer testified that\nThurmond associated with OT5 gang members who were engaged in drug and firearm\ncrimes. The government also introduced pictures of Collins using drugs and holding\na firearm. Based on this evidence, the court did not clearly err in finding he\nassociated with individuals involved in criminal activity.\n\n II.\n\n Thurmond believes the court erred by not allowing him “to speak during\nallocution regarding his alleged association with gang members.” “The denial of the\nright to presentence allocution is a significant procedural error.” United States v.\nHoffman, 707 F.3d 929, 937 (8th Cir. 2013). Generally, it is reviewed de novo.\nUnited States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998). Where, as here, there is\nno objection, this court reviews for plain error. United States v. Fleetwood, 794 F.3d\n1004, 1005 (8th Cir. 2015). Under plain error review, Thurmond “must show: (1) an\nerror; (2) the error is plain; (3) the error affects his substantial rights; and (4) the error\nseriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”\nUnited States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (internal quotation\nmarks omitted).\n\n At the revocation hearing, the court told Thurmond, “this is the time in the\nproceeding when you have a chance to speak.” Thurmond replied, “Thank you,\neverybody, for your time for coming here today. I wanted to speak on the gang\nsituation. I know I’ve been found guilty, but may I—may I please have time to speak\non that?” The court responded: “No. You can talk to me about anything else, but\nI’ve already made my findings so I really don’t care what you have to say about that\n\n -3-\n\fsubject.” Thurmond did not object but rather provided a lengthy statement (over two\ntranscript pages) on other issues.\n\n Unless waived, a defendant is “entitled to . . . an opportunity to make a\nstatement and present any information in mitigation. Fed. R. Civ. P. 32.1(b)(2)(E).\nThis court need not decide whether the district court erred in applying Rule\n32.1(b)(2)(E) because Thurmond “has not shown any such error ‘affected his\nsubstantial rights and seriously affected the fairness, integrity, or reputation of the\njudicial proceedings.’” Fleetwood, 794 F.3d at 1007, quoting United States v.\nHinkeldey, 626 F.3d 1010, 1012 (8th Cir. 2010).\n\n Having presided over his initial sentencing and first revocation hearing, the\ndistrict court was familiar with Thurmond’s history and multiple violations of\nsupervised release. Although it denied him the opportunity to allocute on its finding\nabout “the gang situation,” it allowed him to speak at length about “anything else.”\nHe did not object to this denial at sentencing, nor does he now state what he would\nhave said. He speculates that he “may very well have intended to speak in\nmitigation” about his association with gang members. However, he does “not furnish\nany information about what he would have allocuted to that might have mitigated his\nsentence.” United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006). In fact, he\ndid not contest the sentence in the district court nor does he now challenge his\nwithin-guidelines sentence.\n\n On these facts—a district judge familiar with the defendant, an opportunity to\nallocute at length about anything but a previous finding, and a failure to state either\nwhat would have been said during allocution or how it would have affected the\nsentence—Thurmond has not shown there is error that “seriously affects the fairness,\nintegrity, or public reputation of judicial proceedings.” Boman, 873 F.3d at 1040.\nSee Hill v. United States, 368 U.S. 424, 428 (1962) (“[Denial of the right to\nallocution] is not a fundamental defect which inherently results in a complete\n\n -4-\n\fmiscarriage of justice, nor an omission inconsistent with the rudimentary demands of\nfair procedure.”); United States v. Avila-Cortez, 582 F.3d 602, 606 (5th Cir. 2009)\n(“[I]f the defendant fails to explain what exactly he or she would have said during\nallocution that might mitigate the sentence, then the case is one of those ‘limited class\nof cases’ in which we will decline to exercise our discretion to correct the error.”);\nUnited States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004) (holding that during\nallocution, “[d]efendants may address the amount or quality of evidence adduced at\ntrial to explain their role in an offense or the severity of their conduct, but not merely\nto continue to deny guilt.”) (internal citations omitted).\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -5-\n[END_CASE]", "role": "user" } ]
4,585,387	UNITED STATES of America, Plaintiff - Appellee v. Alonzo L. ADAMS, Defendant - Appellant	United States v. Alonzo Adams	2019-01-29	16-2529	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Benton, Kelly", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 16-2529\n ___________________________\n\n United States of America,\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Alonzo L. Adams,\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 22, 2017\n Filed: January 29, 2019\n ____________\n\nBefore COLLOTON, BENTON, and KELLY, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n A grand jury charged Alonzo Adams with unlawful possession of a firearm as\na previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). After the district\ncourt1 denied his motion to dismiss the indictment, Adams conditionally pleaded\n\n 1\n The Honorable Gary A. Fenner, United States District Judge for the Western\nDistrict of Missouri, adopting a report and recommendation of the Honorable John\n\nguilty. On appeal, Adams argues that the district court erred by denying his motion,\nbecause § 922(g)(1) as applied to him is unconstitutional under the Second\nAmendment. Adams, however, failed even to address one element of his as-applied\nchallenge in the district court, and he therefore forfeited his claim. There was no\nplain error in denying the motion to dismiss, so we affirm.\n\n Adams’s instant conviction arose from a traffic stop in Kansas City, Missouri,\nin July 2014. Police officers pulled him over for failure to stop at a stop sign. After\nAdams told police that he was driving to meet his probation officer, the officers asked\nto search the vehicle. Adams consented to the search, and police discovered a\nhandgun on the floor board under the driver’s seat. Adams denied that the handgun\nbelonged to him, but lab analysis found his DNA on the trigger and magazine.\n\n A grand jury charged him with unlawful possession of a firearm as a previously\nconvicted felon, in violation of 18 U.S.C. § 922(g)(1). Adams had sustained a prior\nfelony conviction in Missouri for carrying a concealed weapon. Adams moved to\ndismiss the indictment on the ground that § 922(g)(1) is unconstitutional as applied\nto him. Adams argued that District of Columbia v. Heller, 554 U.S. 570 (2008), did\nnot categorically exclude “non-violent felons” from Second Amendment protection.\nAnd he asserted that a conviction for carrying a concealed weapon is a non-violent\nfelony. He then urged that § 922(g)(1) is unconstitutional as applied to him, because\na permanent ban on firearms possession by a “non-violent felon” is not narrowly\ntailored to the government’s interest in public safety, so the prohibition did not satisfy\nstrict scrutiny. The district court denied the motion on the ground that § 922(g)(1)\nserves an important governmental objective and satisfies intermediate scrutiny as\napplied to Adams.\n\n\n\n\nT. Maughmer, United States Magistrate Judge for the Western District of Missouri.\n\n -2-\n\n Adams then pleaded guilty, and the district court sentenced him to 21 months’\nimprisonment with three years of supervised release. As part of the plea agreement,\nAdams reserved the right to appeal the district court’s denial of his motion to dismiss.\n\n The Second Amendment provides: “A well regulated Militia, being necessary\nto the security of a free State, the right of the people to keep and bear Arms, shall not\nbe infringed.” U.S. Const. amend. II. “[T]he Second Amendment protects the right\nto keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago,\n561 U.S. 742, 749-50 (2010). But “[l]ike most rights, the right secured by the Second\nAmendment is not unlimited.” Heller, 554 U.S. at 626. The Court in Heller said that\n“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions\non the possession of firearms by felons and the mentally ill, or laws forbidding the\ncarrying of firearms in sensitive places such as schools and government buildings, or\nlaws imposing conditions and qualifications on the commercial sale of arms.” Id. at\n626-27. These regulatory measures are “presumptively lawful.” Id. at 627 n.26;\naccord McDonald, 561 U.S. at 786 (plurality opinion).\n\n After Heller and McDonald, we rejected a facial challenge to § 922(g)(1)’s\nfelon-in-possession ban. See United States v. Joos, 638 F.3d 581, 586 (8th Cir.\n2011). But we have yet to address squarely whether § 922(g)(1) is susceptible to as-\napplied challenges. See United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014).\nAn as-applied challenge asks the reviewing court to declare the disputed statute\nunconstitutional “on the facts of the particular case.” Sanjour v. EPA, 56 F.3d 85, 92\nn.10 (D.C. Cir. 1995). The as-applied challenger “does not contend that a law is\nunconstitutional as written but that its application to a particular person under\nparticular circumstances deprived that person of a constitutional right.” United States\nv. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). At a minimum, to succeed on an as-\napplied challenge, Adams must establish (1) that the Second Amendment protects his\nparticular conduct, and (2) that his prior felony conviction is insufficient to justify the\nchallenged regulation of Second Amendment rights.\n\n -3-\n\n Adams forfeited his claim by failing even to address the first point in the\ndistrict court. Because Adams transported the handgun out of sight under his driver’s\nseat, Adams must show that the Second Amendment protects a right to carry a\nweapon concealed in a vehicle. Yet Adams never advanced this contention, and the\ndistrict court could have denied his motion based on this deficiency alone. Adams\nsimply assumed the existence of a constitutional right to carry a concealed weapon\nin a vehicle and argued only that his particular felony conviction could not justify a\nlifetime ban on possession. For the first time on appeal, Adams contends that the\nSecond Amendment protects a right to carry a concealed firearm outside the home.\nTo obtain relief on a forfeited claim, however, Adams must show that the district\ncourt made an obvious error that affected substantial rights and seriously affected the\nfairness, integrity, or reputation of the judicial proceedings. United States v. Olano,\n507 U.S. 725, 734-36 (1993). An asserted legal error does not meet this standard if\nthe proposition is “subject to reasonable dispute.” Puckett v. United States, 556 U.S.\n129, 135 (2009).\n\n It is not plain or obvious that the Second Amendment protects Adams’s\nconduct. There is at least reasonable dispute about whether the Second Amendment\nprotects a right to carry a concealed weapon in a vehicle. The Supreme Court has\ndescribed laws prohibiting concealed carry as a “well-recognized exception[]” to the\nright to keep and bear arms. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).\nHeller cautioned that its holding did not recognize “a right to keep and carry any\nweapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S.\nat 626. As an example, the Court observed that “the majority of the 19th-century\ncourts to consider the question held that prohibitions on carrying concealed weapons\nwere lawful under the Second Amendment or state analogues.” Id. Relying on these\ndecisions, one circuit has concluded that the Second Amendment does not protect a\nright to concealed carry. See Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir.\n2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).\n\n\n\n -4-\n\n The history of prohibitions on concealed carry extends to the carrying of\nconcealed weapons during travel. Even before cars and trucks, the Tennessee\nSupreme Court held that carrying a “navy six [pistol] in a scabbard hung to the horn\nof [a defendant’s] saddle” was grounds to convict the defendant for unlawfully\ncarrying a pistol “that can be carried lawfully only openly in the hands.” Barton v.\nState, 66 Tenn. 105, 105-06 (Tenn. 1874). Similarly, the Alabama Supreme Court\naffirmed the conviction of a defendant who concealed a pistol in a handbasket that\nthe defendant carried with him on a train car. Diffey v. State, 5 So. 576, 576 (Ala.\n1889). After the advent of automobiles, the Court of Appeals for the District of\nColumbia upheld a conviction for carrying a concealed weapon under a vehicle seat.\nThe court approved a jury instruction that said the governing statute applied if the\ndefendant “had a pistol concealed in the automobile, though not on his person, but\nwithin his reach.” Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929).\n\n Several courts have discerned a meaningful distinction between open and\nconcealed carrying in a vehicle. A California court emphasized that a concealed carry\nstatute did not “prohibit the carrying of a firearm in a vehicle unless it be concealed,”\nand concluded that a firearm could be carried openly inside the vehicle without\nviolating the concealed carry law. People v. Frost, 12 P.2d 1096, 1097 (Cal. App.\nDep’t Super. Ct. 1932). On the other hand, carrying a firearm under a floor mat on\nthe driver’s side of a truck violates the California law on carrying a concealed weapon\nin a vehicle. People v. Ellison, 128 Cal. Rptr. 3d 245, 248-51 (Cal. Ct. App. 2011).\nKentucky courts have ruled that a firearm carried inside the center console was\nconcealed and violated Kentucky’s concealed carry law, see Mohammad v.\nCommonwealth, 202 S.W.3d 589, 590-91 (Ky. 2006), while a firearm placed on top\nof the center console was not concealed and did not violate the statute. See Pulley v.\nCommonwealth, 481 S.W.3d 520, 525 (Ky. Ct. App. 2016); see also Ensor v. State,\n403 So. 2d 349, 354-55 (Fla. 1981); State v. Pettit, 252 N.E.2d 325, 327-28 (Ohio Ct.\nApp. 1969); Shipley v. State, 220 A.2d 585, 588-89 (Md. 1966); State v. Bordeaux,\n337 S.W.2d 47, 49 (Mo. 1960).\n\n -5-\n\n To be sure, some have urged that concealed carrying of firearms is protected\nunder the Second Amendment when the State forbids open carrying, on the view that\nit would be unconstitutional to prohibit all forms of bearing arms outside the home.\nSee Peruta, 824 F.3d at 950-51 (Callahan, J., dissenting); Peruta v. Cty. of San Diego,\n742 F.3d 1144, 1172-73 (9th Cir. 2014), vacated and reh’g en banc granted, 781 F.3d\n1106 (9th Cir. 2015). Missouri, however, has no general ban on open carrying of\nfirearms, see Mo. Rev. Stat. § 21.750.3 (Cumulative Supp. 2013), and Adams has\ndirected us to no local law or ordinance that prohibited him from carrying a firearm\nopenly in his vehicle.\n\n In light of these authorities and the historical record to which we have been\ndirected, Adams’s contention that the Second Amendment protects a right to carry a\nconcealed weapon in a vehicle is at least subject to reasonable dispute. Therefore, his\nas-applied challenge to § 922(g)(1) fails under the plain error standard. We disagree\nwith the view of the concurring opinion that an as-applied challenger need not even\nshow that he was engaged in constitutionally-protected conduct. Of course, the felon-\nin-possession statute does not require the government to prove the manner in which\nthe defendant possessed a firearm. But a party who raises an as-applied constitutional\nchallenge to a statute must show that the statute as applied in the particular\ncircumstances of his case infringed on conduct that was constitutionally protected.\nSee Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973); United States v. Raines,\n362 U.S. 17, 21-22 (1960). The overbreadth doctrine, under which a challenger may\nrely on the rights of others in situations not before the court, applies only in the\nlimited context of the First Amendment. New York v. Ferber, 458 U.S. 747, 767-68\n(1982). We need not address, therefore, whether Adams’s prior felony conviction\nwould have been sufficient to justify disqualifying him from enjoying rights\nguaranteed under the Second Amendment.\n\n The judgment of the district court is affirmed.\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362640/", "author_raw": "COLLOTON, Circuit Judge."}, {"author": "KELLY, Circuit Judge, concurring", "type": "concurrence", "text": "KELLY, Circuit Judge, concurring in the judgment.\n\n I agree that Adams’s conviction for violating 18 U.S.C. § 922(g)(1) should be\naffirmed. I write separately because I disagree with how the court analyzes Adams’s\nSecond Amendment challenge. When presented with similar arguments, our sister\ncircuits have used a sensible, two-pronged approach to consider whether application\nof § 922(g)(1) to a particular individual comports with the Constitution’s protection\nof the right to keep and bear arms. Instead of following that sound approach, the\ncourt focuses on a factual circumstance not before the district court and not addressed\nby the parties: that Adams’s firearm was “concealed.” This fact, even if it were\nsupported by the record, would not be relevant to Adams’s conviction because\n§ 922(g)(1) applies regardless of the manner in which the firearm is possessed. It\nlikewise should have no bearing on his ability to argue that his conviction under that\nsection is unconstitutional.\n\n I\n\n Section 922(g)(1) makes it unlawful for any person who has been convicted of\n“a crime punishable by imprisonment for a term exceeding one year”2 to “possess in\nor affecting commerce, any firearm or ammunition.” This offense has only three\nelements: “(1) a prior felony conviction; (2) knowing possession of a firearm; and\n(3) an interstate nexus.” United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001).\nAdams asserts that the first element sweeps too broadly because it applies the ban to\nindividuals like himself who were convicted of nonviolent offenses, in violation of\nthe Second Amendment. Adams first raised this argument in a pretrial motion to\ndismiss his indictment. After the district court rejected his challenge, Adams entered\n\n\n 2\n The phrase “crime punishable by imprisonment for a term exceeding one year”\nis defined to exclude violations of certain business regulations and certain state-law\nmisdemeanors. 18 U.S.C. § 921(a)(20).\n\n -7-\n\ninto a conditional guilty plea that preserved his right to renew his constitutional claim\non appeal.\n\n The court today concludes that Adams “forfeited” his Second Amendment\nchallenge from the start because he never addressed where the firearm was located\nat the time he was pulled over. The court anchors its reasoning in a two-part test for\nan as-applied constitutional challenge like Adams’s. A challenger must prove:\n“(1) that the Second Amendment protects his particular conduct, and (2) that his prior\nfelony conviction is insufficient to justify the challenged regulation of Second\nAmendment rights.” Supra at 3. The court then explains that Adams forfeited his\nclaim because he failed to address how one aspect of his “particular conduct”—the\nlocation of the firearm—was constitutionally protected. Id. But the court cites no\nauthority for the proposition that the “particular conduct” relevant to Adams’s as-\napplied challenge included the firearm’s location. There is thus no reason why\nAdams would have known he needed to address this fact. Likewise, the government\nhas never argued that Adams’s firearm was concealed or that his failure to address its\nlocation in his motion forfeited his right to challenge the constitutionality of his\nconviction, thus limiting our review under the plain-error doctrine.\n\n The Supreme Court has cautioned that the “as-applied” label does not control\nwhat a party must plead or prove. Citizens United v. Fed. Election Comm’n, 558 U.S.\n310, 331 (2010); see Richard H. Fallon, Jr., As-Applied and Facial Challenges and\nThird-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000). Ultimately, what matters\nis that the remedy sought is properly “tailored to redress the plaintiff’s particular\ninjury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Here, Adams’s “particular\ninjury” is his § 922(g)(1) conviction, and we should limit our analysis to the facts that\ntrigger that criminal sanction, i.e., the facts that the government needed to prove in\norder to apply the statute to this case. There is no precedent requiring Adams to\nprove that every aspect of his conduct was constitutionally protected.\n\n\n\n -8-\n\n The government was not required to prove that Adams possessed a firearm in\na concealed manner because Congress did not make that an element of the felon-in-\npossession offense. And § 922 contains no other general prohibition on carrying\nconcealed firearms. Thus, if Adams is correct and § 922(g)(1) cannot apply to him,\nthen his possession of the firearm—concealed or open—was not prohibited by federal\nlaw. By focusing on the assertion that Adams carried a concealed firearm, the court\naddresses a hypothetical as-applied challenge to a hypothetical concealed-carry\nstatute. Cf. Raines, 362 U.S. at 21 (holding that courts should “never . . . anticipate\na question of constitutional law in advance of the necessity of deciding it”). There\nmay not be, as the court explains, a protected right under the Second Amendment to\ncarry a concealed firearm. But this analysis merely suggests that Congress could pass\na concealed-carry statute without running afoul of the Second Amendment. It has\nnothing to do with whether Adams can be prosecuted under § 922(g)(1) for being a\nfelon-in-possession, unless we “inva[de] . . . the legislative domain” by adding a\nconcealment requirement to the statute. Ayotte v. Planned Parenthood of N. New\nEng., 546 U.S. 320, 330 (2006) (quoting United States v. Nat’l Treasury Emps.\nUnion, 513 U.S. 454, 479 n.26 (1995)).\n\n Moreover, at the time it denied his motion to dismiss, the district court did not\nhave sufficient evidence to determine whether Adams’s conduct would have violated\na hypothetical concealed-carry statute. At that point, the only information before the\ndistrict court was the indictment and the facts that Adams conceded in his motion.\nNeither the indictment nor the motion mentioned the location of the firearm or\nwhether the firearm was “concealed.” The only evidence in the record on this issue\ncomes from the plea agreement and the presentence report—both of which did not\nexist until after Adams’s constitutional challenge was briefed, argued, and decided.\nThe indictment’s silence on the issue confirms that the location of the firearm was not\none of the “essential facts constituting the offense charged,” Fed. R. Crim. P. 7(c)(1),\nmaking it immaterial to whether Adams could be convicted under § 922(g)(1).\n\n\n\n -9-\n\n In short, the court’s inquiry into other facts surrounding Adams’s offense is an\nunnecessary diversion from the question that he asks us to decide. It also lacks the\nbenefit of briefing from the parties—before the district court and on appeal—which\nonly further counsels in favor of limiting our analysis to the facts necessary to prove\nthe statutory elements as written in § 922(g)(1). As discussed below, when faced\nwith similar challenges to this same statute, every circuit has done precisely that. I\nwould follow their example.\n\n II\n\n The Supreme Court has instructed that “the Second Amendment conferred an\nindividual right to keep and bear arms.” Heller, 554 U.S. at 595. That right, like the\nFirst Amendment’s right to free speech, is “not unlimited.” Id. At the core of the\nright recognized in Heller is “the right of law-abiding, responsible citizens to use\narms in defense of hearth and home.” Id. at 635. In particular, the Court noted that\nits opinion should not “cast doubt on longstanding prohibitions on the possession of\nfirearms by felons and the mentally ill, or laws forbidding the carrying of firearms in\nsensitive places such as schools and government buildings, or laws imposing\nconditions and qualifications on the commercial sale of arms.” Id. at 626–27. It\ncharacterized these “presumptively lawful regulatory measures,” id. at 627 n.26, as\nsimilar to recognized “exceptions” to the First Amendment’s\nprotections—“obscenity, libel, and disclosure of state secrets.” Id. at 635.\n\n Most circuits have adopted a two-part test for evaluating Second Amendment\ncases following Heller. First, they “ask whether the challenged law imposes a burden\non conduct falling within the scope of the Second Amendment’s guarantee.” United\nStates v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). If the law does, they “evaluate\nthe law under some form of means-end scrutiny.” Id.; accord Pena v. Lindley, 898\nF.3d 969, 975 (9th Cir. 2018); United States v. Focia, 869 F.3d 1269, 1285 (11th Cir.\n2017); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &\n\n -10-\n\nExplosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d\n510, 518 (6th Cir. 2012); United States v. Carter, 669 F.3d 411, 416 (4th Cir. 2012);\nHeller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City\nof Chicago, 651 F.3d 684, 703 (7th Cir. 2011); United States v. Reese, 627 F.3d 792,\n801 (10th Cir. 2010).\n\n Applying this framework, the first question is whether § 922(g)(1) burdens the\nconstitutional right as articulated in Heller. Due to Heller’s admonition that laws\nforbidding the possession of firearms by those with prior felony convictions are\n“presumptively lawful,” we have repeatedly rejected facial constitutional challenges\nto § 922(g)(1). See, e.g., Woolsey, 759 F.3d at 909; Joos, 638 F.3d at 586. Although\nthis forecloses the argument that § 922(g)(1) is “unconstitutional in all or nearly all\nof its applications,” United States v. Booker, 543 U.S. 220, 274 (2005), we have left\nopen the possibility that, as to some class of persons, § 922(g)(1) may be\nunconstitutional, Woolsey, 759 F.3d at 909. In United States v. Brown, 436 F. App’x\n725, 726 (8th Cir. 2011) (per curiam), we cited with approval the standard adopted\nby the Third Circuit in United States v. Barton for as-applied challenges to this\nstatute:\n\n To raise a successful as-applied challenge, [a defendant] must present\n facts about himself and his background that distinguish his\n circumstances from those of persons historically barred from Second\n Amendment protections. For instance, a felon convicted of a minor,\n non-violent crime might show that he is no more dangerous than a\n typical law-abiding citizen. Similarly, a court might find that a felon\n whose crime of conviction is decades-old poses no continuing threat to\n society.\n\n633 F.3d 168, 174 (3d Cir. 2011).\n\n\n\n\n -11-\n\n The language used in Barton suggested that individuals convicted of “non-\nviolent” felonies may be able to establish that they are not “dangerous” and thus\nshould not be entirely outside of the Second Amendment’s protections. However,\nfive years later, in a fractured opinion, the Third Circuit overruled Barton sitting en\nbanc. Binderup v. Attorney Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc). In\nBinderup, the controlling plurality opinion concluded that Heller recognized that the\nright to bear arms may be nonexistent not just for “violent felons” but for “any person\nwho has committed a serious criminal offense, violent or nonviolent.” Id. at 348; see\nalso id. at 349 (“[A]nyone who commits a serious crime loses the right to keep and\nbear arms . . . .”).\n\n Binderup comports with our conclusion that the Second Amendment reflects\n“a common-law tradition that the right to bear arms is limited to peaceable or virtuous\ncitizens,” a group that would not include those with felony convictions. United States\nv. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011); accord United States v. Carpio-Leon,\n701 F.3d 974, 979 (4th Cir. 2012) (“[T]he core right of the Second Amendment\nprotects law-abiding members of the political community . . . .”); United States v.\nYancey, 621 F.3d 681, 684–85 (7th Cir. 2010) (per curiam) (“[M]ost scholars of the\nSecond Amendment agree that the right to bear arms was tied to the concept of a\nvirtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous\ncitizens.’” (quoting United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010))).\nThis is why we concluded that it was “most likely” that the “presumptively lawful”\nregulatory measures listed in Heller, including prohibitions on possession of firearms\nby those with felony convictions, simply “do not infringe on the Second Amendment\nright.” Bena, 664 F.3d at 1183.\n\n We have previously affirmed convictions under § 922(g)(1) on a rationale\nconsistent with the conclusion that those convicted of felony offenses do not possess\nSecond Amendment rights—albeit at times in unpublished opinions. In United States\nv. Hughley, we rejected an as-applied challenge to § 922(g)(1) brought by a defendant\n\n -12-\n\nwith nonviolent felony predicates. 691 F. App’x 278 (8th Cir. 2017) (per curiam),\ncert. denied, 138 S. Ct. 983 (2018). We noted that the statute’s purpose clearly and\ndeliberately “reaches beyond felons who have proven themselves violent—that is,\nthose who have already committed violent felonies”—to cover all those convicted of\n“serious crimes.” Id. at 279–80. Because the defendant in Hughley had multiple\nnonviolent felony convictions, including one for possession of a concealed weapon,\nwe concluded that he had not shown that he was “no more dangerous than a typical\nlaw-abiding citizen” entitled to Second Amendment protections. Id. at 279.\n\n In light of our decisions in Bena and Hughley, I would conclude that Adams’s\nchallenge fails at the first step of the Marzzarella framework. The Supreme Court’s\ncharacterization of felon-in-possession statutes as akin to the First Amendment’s\nhistorical “exceptions” for obscenity, libel, and disclosure of state secrets suggests\nthat it views those convicted of felonies as falling outside the scope of the Second\nAmendment’s protections. See Medina v. Whitaker, No. 17-5248, 2019 WL 254691,\nat *5 (D.C. Cir. Jan. 18, 2019) (“[T]hose convicted of felonies are not among those\nentitled to possess arms.”); Binderup, 836 F.3d at 349 (opinion of Ambro, J.)\n(“[P]ersons who have committed serious crimes forfeit the right to possess firearms\nmuch the way they ‘forfeit other civil liberties, including fundamental constitutional\nrights.’” (quoting Barton, 633 F.3d at 175)). The government therefore does not need\nto justify the statute under some heightened form of means-ends scrutiny.\nAdmittedly, some have questioned whether such a historical exception truly existed.\nSee United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (“[I]t appears to us\nthat the historical data is not conclusive on the question of whether the founding era\nunderstanding was that the Second Amendment did not apply to felons.”). But we\nmust respect the language used by the Supreme Court in Heller, as well as our own\nprior opinions, regardless of whether it is controlling. See United States v. Bloom,\n149 F.3d 649, 653 (7th Cir. 1998) (“The Supreme Court often articulates positions\nthrough language that an unsympathetic audience might dismiss as dictum . . . and it\nexpects these formulations to be followed.”).\n\n -13-\n\n For these reasons, I concur that the district court’s judgment should be\naffirmed.\n ______________________________\n\n\n\n\n -14-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362640/", "author_raw": "KELLY, Circuit Judge, concurring"}]}	COLLOTON	BENTON	KELLY	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585387/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Alonzo L. ADAMS, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 16-2529\n ___________________________\n\n United States of America,\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Alonzo L. Adams,\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: September 22, 2017\n Filed: January 29, 2019\n ____________\n\nBefore COLLOTON, BENTON, and KELLY, Circuit Judges.\n ____________\n\nCOLLOTON, Circuit Judge.\n\n A grand jury charged Alonzo Adams with unlawful possession of a firearm as\na previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). After the district\ncourt1 denied his motion to dismiss the indictment, Adams conditionally pleaded\n\n 1\n The Honorable Gary A. Fenner, United States District Judge for the Western\nDistrict of Missouri, adopting a report and recommendation of the Honorable John\n\nguilty. On appeal, Adams argues that the district court erred by denying his motion,\nbecause § 922(g)(1) as applied to him is unconstitutional under the Second\nAmendment. Adams, however, failed even to address one element of his as-applied\nchallenge in the district court, and he therefore forfeited his claim. There was no\nplain error in denying the motion to dismiss, so we affirm.\n\n Adams’s instant conviction arose from a traffic stop in Kansas City, Missouri,\nin July 2014. Police officers pulled him over for failure to stop at a stop sign. After\nAdams told police that he was driving to meet his probation officer, the officers asked\nto search the vehicle. Adams consented to the search, and police discovered a\nhandgun on the floor board under the driver’s seat. Adams denied that the handgun\nbelonged to him, but lab analysis found his DNA on the trigger and magazine.\n\n A grand jury charged him with unlawful possession of a firearm as a previously\nconvicted felon, in violation of 18 U.S.C. § 922(g)(1). Adams had sustained a prior\nfelony conviction in Missouri for carrying a concealed weapon. Adams moved to\ndismiss the indictment on the ground that § 922(g)(1) is unconstitutional as applied\nto him. Adams argued that District of Columbia v. Heller, 554 U.S. 570 (2008), did\nnot categorically exclude “non-violent felons” from Second Amendment protection.\nAnd he asserted that a conviction for carrying a concealed weapon is a non-violent\nfelony. He then urged that § 922(g)(1) is unconstitutional as applied to him, because\na permanent ban on firearms possession by a “non-violent felon” is not narrowly\ntailored to the government’s interest in public safety, so the prohibition did not satisfy\nstrict scrutiny. The district court denied the motion on the ground that § 922(g)(1)\nserves an important governmental objective and satisfies intermediate scrutiny as\napplied to Adams.\n\n\n\n\nT. Maughmer, United States Magistrate Judge for the Western District of Missouri.\n\n -2-\n\n Adams then pleaded guilty, and the district court sentenced him to 21 months’\nimprisonment with three years of supervised release. As part of the plea agreement,\nAdams reserved the right to appeal the district court’s denial of his motion to dismiss.\n\n The Second Amendment provides: “A well regulated Militia, being necessary\nto the security of a free State, the right of the people to keep and bear Arms, shall not\nbe infringed.” U.S. Const. amend. II. “[T]he Second Amendment protects the right\nto keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago,\n561 U.S. 742, 749-50 (2010). But “[l]ike most rights, the right secured by the Second\nAmendment is not unlimited.” Heller, 554 U.S. at 626. The Court in Heller said that\n“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions\non the possession of firearms by felons and the mentally ill, or laws forbidding the\ncarrying of firearms in sensitive places such as schools and government buildings, or\nlaws imposing conditions and qualifications on the commercial sale of arms.” Id. at\n626-27. These regulatory measures are “presumptively lawful.” Id. at 627 n.26;\naccord McDonald, 561 U.S. at 786 (plurality opinion).\n\n After Heller and McDonald, we rejected a facial challenge to § 922(g)(1)’s\nfelon-in-possession ban. See United States v. Joos, 638 F.3d 581, 586 (8th Cir.\n2011). But we have yet to address squarely whether § 922(g)(1) is susceptible to as-\napplied challenges. See United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014).\nAn as-applied challenge asks the reviewing court to declare the disputed statute\nunconstitutional “on the facts of the particular case.” Sanjour v. EPA, 56 F.3d 85, 92\nn.10 (D.C. Cir. 1995). The as-applied challenger “does not contend that a law is\nunconstitutional as written but that its application to a particular person under\nparticular circumstances deprived that person of a constitutional right.” United States\nv. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010). At a minimum, to succeed on an as-\napplied challenge, Adams must establish (1) that the Second Amendment protects his\nparticular conduct, and (2) that his prior felony conviction is insufficient to justify the\nchallenged regulation of Second Amendment rights.\n\n -3-\n\n Adams forfeited his claim by failing even to address the first point in the\ndistrict court. Because Adams transported the handgun out of sight under his driver’s\nseat, Adams must show that the Second Amendment protects a right to carry a\nweapon concealed in a vehicle. Yet Adams never advanced this contention, and the\ndistrict court could have denied his motion based on this deficiency alone. Adams\nsimply assumed the existence of a constitutional right to carry a concealed weapon\nin a vehicle and argued only that his particular felony conviction could not justify a\nlifetime ban on possession. For the first time on appeal, Adams contends that the\nSecond Amendment protects a right to carry a concealed firearm outside the home.\nTo obtain relief on a forfeited claim, however, Adams must show that the district\ncourt made an obvious error that affected substantial rights and seriously affected the\nfairness, integrity, or reputation of the judicial proceedings. United States v. Olano,\n507 U.S. 725, 734-36 (1993). An asserted legal error does not meet this standard if\nthe proposition is “subject to reasonable dispute.” Puckett v. United States, 556 U.S.\n129, 135 (2009).\n\n It is not plain or obvious that the Second Amendment protects Adams’s\nconduct. There is at least reasonable dispute about whether the Second Amendment\nprotects a right to carry a concealed weapon in a vehicle. The Supreme Court has\ndescribed laws prohibiting concealed carry as a “well-recognized exception[]” to the\nright to keep and bear arms. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).\nHeller cautioned that its holding did not recognize “a right to keep and carry any\nweapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S.\nat 626. As an example, the Court observed that “the majority of the 19th-century\ncourts to consider the question held that prohibitions on carrying concealed weapons\nwere lawful under the Second Amendment or state analogues.” Id. Relying on these\ndecisions, one circuit has concluded that the Second Amendment does not protect a\nright to concealed carry. See Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir.\n2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).\n\n\n\n -4-\n\n The history of prohibitions on concealed carry extends to the carrying of\nconcealed weapons during travel. Even before cars and trucks, the Tennessee\nSupreme Court held that carrying a “navy six [pistol] in a scabbard hung to the horn\nof [a defendant’s] saddle” was grounds to convict the defendant for unlawfully\ncarrying a pistol “that can be carried lawfully only openly in the hands.” Barton v.\nState, 66 Tenn. 105, 105-06 (Tenn. 1874). Similarly, the Alabama Supreme Court\naffirmed the conviction of a defendant who concealed a pistol in a handbasket that\nthe defendant carried with him on a train car. Diffey v. State, 5 So. 576, 576 (Ala.\n1889). After the advent of automobiles, the Court of Appeals for the District of\nColumbia upheld a conviction for carrying a concealed weapon under a vehicle seat.\nThe court approved a jury instruction that said the governing statute applied if the\ndefendant “had a pistol concealed in the automobile, though not on his person, but\nwithin his reach.” Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929).\n\n Several courts have discerned a meaningful distinction between open and\nconcealed carrying in a vehicle. A California court emphasized that a concealed carry\nstatute did not “prohibit the carrying of a firearm in a vehicle unless it be concealed,”\nand concluded that a firearm could be carried openly inside the vehicle without\nviolating the concealed carry law. People v. Frost, 12 P.2d 1096, 1097 (Cal. App.\nDep’t Super. Ct. 1932). On the other hand, carrying a firearm under a floor mat on\nthe driver’s side of a truck violates the California law on carrying a concealed weapon\nin a vehicle. People v. Ellison, 128 Cal. Rptr. 3d 245, 248-51 (Cal. Ct. App. 2011).\nKentucky courts have ruled that a firearm carried inside the center console was\nconcealed and violated Kentucky’s concealed carry law, see Mohammad v.\nCommonwealth, 202 S.W.3d 589, 590-91 (Ky. 2006), while a firearm placed on top\nof the center console was not concealed and did not violate the statute. See Pulley v.\nCommonwealth, 481 S.W.3d 520, 525 (Ky. Ct. App. 2016); see also Ensor v. State,\n403 So. 2d 349, 354-55 (Fla. 1981); State v. Pettit, 252 N.E.2d 325, 327-28 (Ohio Ct.\nApp. 1969); Shipley v. State, 220 A.2d 585, 588-89 (Md. 1966); State v. Bordeaux,\n337 S.W.2d 47, 49 (Mo. 1960).\n\n -5-\n\n To be sure, some have urged that concealed carrying of firearms is protected\nunder the Second Amendment when the State forbids open carrying, on the view that\nit would be unconstitutional to prohibit all forms of bearing arms outside the home.\nSee Peruta, 824 F.3d at 950-51 (Callahan, J., dissenting); Peruta v. Cty. of San Diego,\n742 F.3d 1144, 1172-73 (9th Cir. 2014), vacated and reh’g en banc granted, 781 F.3d\n1106 (9th Cir. 2015). Missouri, however, has no general ban on open carrying of\nfirearms, see Mo. Rev. Stat. § 21.750.3 (Cumulative Supp. 2013), and Adams has\ndirected us to no local law or ordinance that prohibited him from carrying a firearm\nopenly in his vehicle.\n\n In light of these authorities and the historical record to which we have been\ndirected, Adams’s contention that the Second Amendment protects a right to carry a\nconcealed weapon in a vehicle is at least subject to reasonable dispute. Therefore, his\nas-applied challenge to § 922(g)(1) fails under the plain error standard. We disagree\nwith the view of the concurring opinion that an as-applied challenger need not even\nshow that he was engaged in constitutionally-protected conduct. Of course, the felon-\nin-possession statute does not require the government to prove the manner in which\nthe defendant possessed a firearm. But a party who raises an as-applied constitutional\nchallenge to a statute must show that the statute as applied in the particular\ncircumstances of his case infringed on conduct that was constitutionally protected.\nSee Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973); United States v. Raines,\n362 U.S. 17, 21-22 (1960). The overbreadth doctrine, under which a challenger may\nrely on the rights of others in situations not before the court, applies only in the\nlimited context of the First Amendment. New York v. Ferber, 458 U.S. 747, 767-68\n(1982). We need not address, therefore, whether Adams’s prior felony conviction\nwould have been sufficient to justify disqualifying him from enjoying rights\nguaranteed under the Second Amendment.\n\n The judgment of the district court is affirmed.\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,585,816	UNITED STATES of America, Plaintiff - Appellee v. Jose HERNANDEZ-LOERA, Defendant - Appellant	United States v. Jose Hernandez-Loera	2019-01-30	17-3793	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Per Curiam, Shepherd, Stras", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3793\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jose Hernandez-Loera\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Dubuque\n ____________\n\n Submitted: November 12, 2018\n Filed: January 30, 2019\n [Published]\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Appellant Jose Hernandez-Loera pled guilty to one count of unlawful use of\nidentification documents, in violation of 18 U.S.C. § 1546(a). The district court1\n\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\fsentenced him to a time-served sentence of 111 days and 3 years of supervised\nrelease. Hernandez-Loera appeals, asserting that the district court erred in sentencing\nhim to a term of supervised release. Having jurisdiction under 28 U.S.C. § 1291, we\naffirm.\n\n Hernandez-Loera, a native and citizen of Mexico and illegally in the United\nStates, pled guilty and received his sentence for the unlawful use of identification\ndocuments related to his use of a fraudulent social security card and a fraudulent\npermanent resident card to obtain employment. On appeal, Hernandez-Loera\nchallenges only the imposition of supervised release, asserting that the district court\nprocedurally erred in imposing the term of supervised release, where it was expected\nthat Hernandez-Loera would be immediately deported, without specific findings as\nto why supervised release was necessary.\n\n Because Hernandez-Loera did not object at sentencing to the imposition of\nsupervised release, we review his claim for plain error. United States v. Pate, 518\nF.3d 972, 975 (8th Cir. 2008). “Under plain error review, it is the defendant’s burden\nto prove (1) there was error, (2) that was plain, and (3) affected substantial rights.”\nUnited States v. Adejumo, 772 F.3d 513, 538 (8th Cir. 2014) (quoting United States\nv. Martin, 714 F.3d 1081, 1084 (8th Cir. 2013)).\n\n We find no error in the district court’s decision to sentence Hernandez-Loera\nto a term of supervised release. Under the Sentencing Guidelines, “[t]he court\nordinarily should not impose a term of supervised release in a case in which\nsupervised release is not required by statute and the defendant is a deportable alien\nwho likely will be deported after imprisonment.” United States Sentencing\nCommission, Guidelines Manual, § 5D1.1(c). But the district court retains discretion\nto impose supervised release where it determines that supervised release “would\nprovide an added measure of deterrence and protection based on the facts and\ncircumstances of a particular case.” USSG § 5D1.1 comment. (n. 5). In addition, as\n\n -2-\n\fsome of our sister circuits have held, the “term ‘ordinarily’ in section 5D1.1(c) is\n‘hortatory, not mandatory.’” United States v. Aplicano-Oyuela, 792 F.3d 416, 424\n(4th Cir. 2015) (quoting United States v. Dominguez-Alvarado, 695 F.3d 324, 329\n(5th Cir. 2012)).\n\n At sentencing, the government specifically asked for a period of supervised\nrelease as a means to deter Hernandez-Loera from another attempted illegal reentry.\nSignificantly, in executing a search warrant on Hernandez-Loera’s residence, law\nenforcement found tax returns, payroll information, counterfeit social security cards,\nand counterfeit immigration documents. While the district court did not specifically\nlink its imposition of supervised release to the need for added deterrence, this is not\nreversible error. See United States v. Alvarado, 720 F.3d 153, 158 (2d Cir. 2013)\n(finding no error where district court did not explicitly discuss USSG § 5D1.1(c)\nwhen imposing supervised release). The record reflects that the district court\nconsidered the appropriate sentencing factors, the arguments of counsel, and the\nspecific circumstances of the case before sentencing Hernandez-Loera. Further, the\nconditions of Hernandez-Loera’s supervised release specified if he were removed or\ndeported, he could not reenter the United States without permission, but he would not\nbe on active supervision while he was outside the country. We conclude the district\ncourt’s decision to impose supervised release is both consistent with the Sentencing\nGuidelines and an appropriate exercise of the district court’s wide latitude in\ndetermining a sentence. See United States v. Hobbs, 845 F.3d 365, 367-68 (8th Cir.\n2015) (discussing discretion of sentencing judge related to supervised release).\n\n Accordingly, we affirm.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363069/", "author_raw": "PER CURIAM"}]}	COLLOTON	SHEPHERD	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585816/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Jose HERNANDEZ-LOERA, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3793\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jose Hernandez-Loera\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Dubuque\n ____________\n\n Submitted: November 12, 2018\n Filed: January 30, 2019\n [Published]\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Appellant Jose Hernandez-Loera pled guilty to one count of unlawful use of\nidentification documents, in violation of 18 U.S.C. § 1546(a). The district court1\n\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\fsentenced him to a time-served sentence of 111 days and 3 years of supervised\nrelease. Hernandez-Loera appeals, asserting that the district court erred in sentencing\nhim to a term of supervised release. Having jurisdiction under 28 U.S.C. § 1291, we\naffirm.\n\n Hernandez-Loera, a native and citizen of Mexico and illegally in the United\nStates, pled guilty and received his sentence for the unlawful use of identification\ndocuments related to his use of a fraudulent social security card and a fraudulent\npermanent resident card to obtain employment. On appeal, Hernandez-Loera\nchallenges only the imposition of supervised release, asserting that the district court\nprocedurally erred in imposing the term of supervised release, where it was expected\nthat Hernandez-Loera would be immediately deported, without specific findings as\nto why supervised release was necessary.\n\n Because Hernandez-Loera did not object at sentencing to the imposition of\nsupervised release, we review his claim for plain error. United States v. Pate, 518\nF.3d 972, 975 (8th Cir. 2008). “Under plain error review, it is the defendant’s burden\nto prove (1) there was error, (2) that was plain, and (3) affected substantial rights.”\nUnited States v. Adejumo, 772 F.3d 513, 538 (8th Cir. 2014) (quoting United States\nv. Martin, 714 F.3d 1081, 1084 (8th Cir. 2013)).\n\n We find no error in the district court’s decision to sentence Hernandez-Loera\nto a term of supervised release. Under the Sentencing Guidelines, “[t]he court\nordinarily should not impose a term of supervised release in a case in which\nsupervised release is not required by statute and the defendant is a deportable alien\nwho likely will be deported after imprisonment.” United States Sentencing\nCommission, Guidelines Manual, § 5D1.1(c). But the district court retains discretion\nto impose supervised release where it determines that supervised release “would\nprovide an added measure of deterrence and protection based on the facts and\ncircumstances of a particular case.” USSG § 5D1.1 comment. (n. 5). In addition, as\n\n -2-\n\fsome of our sister circuits have held, the “term ‘ordinarily’ in section 5D1.1(c) is\n‘hortatory, not mandatory.’” United States v. Aplicano-Oyuela, 792 F.3d 416, 424\n(4th Cir. 2015) (quoting United States v. Dominguez-Alvarado, 695 F.3d 324, 329\n(5th Cir. 2012)).\n\n At sentencing, the government specifically asked for a period of supervised\nrelease as a means to deter Hernandez-Loera from another attempted illegal reentry.\nSignificantly, in executing a search warrant on Hernandez-Loera’s residence, law\nenforcement found tax returns, payroll information, counterfeit social security cards,\nand counterfeit immigration documents. While the district court did not specifically\nlink its imposition of supervised release to the need for added deterrence, this is not\nreversible error. See United States v. Alvarado, 720 F.3d 153, 158 (2d Cir. 2013)\n(finding no error where district court did not explicitly discuss USSG § 5D1.1(c)\nwhen imposing supervised release). The record reflects that the district court\nconsidered the appropriate sentencing factors, the arguments of counsel, and the\nspecific circumstances of the case before sentencing Hernandez-Loera. Further, the\nconditions of Hernandez-Loera’s supervised release specified if he were removed or\ndeported, he could not reenter the United States without permission, but he would not\nbe on active supervision while he was outside the country. We conclude the district\ncourt’s decision to impose supervised release is both consistent with the Sentencing\nGuidelines and an appropriate exercise of the district court’s wide latitude in\ndetermining a sentence. See United States v. Hobbs, 845 F.3d 365, 367-68 (8th Cir.\n2015) (discussing discretion of sentencing judge related to supervised release).\n\n Accordingly, we affirm.\n ______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]
4,585,818	UNITED STATES of America, Plaintiff - Appellee v. Charles Maxwell KRAUSE, Defendant - Appellant	United States v. Charles Krause	2019-01-30	17-3674	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3674\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Charles Maxwell Krause\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - St. Paul\n ____________\n\n Submitted: October 19, 2018\n Filed: January 30, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\n\nSHEPHERD, Circuit Judge.\n\n A jury found Charles Maxwell Krause guilty of one count of damaging\nproperty of the United States valued at more than $1,000 after a drunk-driving\nincident in which Krause struck and destroyed a localizer antenna array at a\n\fLakeville, Minnesota area airport. The district court1 sentenced Krause to two years\nprobation and ordered restitution in the amount of $115,323.76. Krause challenges\nhis conviction on two grounds: that the district court erroneously instructed the jury\nas to the elements of the offense and that the evidence was insufficient to support a\nguilty verdict. Having jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I.\n\n On the night of September 5, 2014, Krause, who was a licensed pilot, drove his\nChevrolet Cruze onto the runway of Airlake Airport, a small, regional airport in\nLakeville, Minnesota. To reach the runway from city streets, Krause had to leave the\npaved road, drive across a field, and drive around a gate. Krause drove his vehicle\nthe entire distance of the runway at high speeds, continued past the end of the runway\nonto a grassy area, and struck head on a localizer antenna array—a device used to aid\npilots in making instrument landings. Krause then drove into a ditch and flipped his\nvehicle, which came to rest in a nearby cornfield. Immediately after the crash, at\nabout 11:30 p.m., Krause, who sustained only minor injuries, called his mother asking\nfor a ride home. His mother testified at trial that Krause seemed disoriented on the\ncall and was unsure of where he was located. She remained on the phone with him\nwhile he described his location, and she ultimately located him near the airport.\nNeither Krause nor his mother contacted authorities to report the incident because\nneither wanted to implicate Krause in a drunk-driving offense. The following\nmorning, Krause called a tow truck to retrieve his vehicle.\n\n On the morning of September 6, 2014, Lakeville Police Officer Thomas\nStewart responded to a call about a damaged vehicle left in a cornfield near the\nrunway. When he arrived at the scene, he observed the Chevrolet Cruze with\n\n\n 1\n The Honorable Richard H. Kyle, United States District Judge for the District\nof Minnesota.\n\n -2-\n\fsignificant damage, including deployed airbags, a dented roof, and broken out\nwindows. Based on the state of the vehicle, Officer Stewart believed it had been\ntraveling at high speeds or had been “outrunning its headlights” and that it had\nflipped over before coming to rest. Shortly after Officer Stewart arrived, Krause\narrived in a tow truck. Officer Stewart observed that Krause had bloodshot, watery\neyes, was slurring his speech, and had the smell of an alcoholic beverage on his\nbreath. Officer Stewart opined that Krause was still feeling the effects of alcohol\nwhen he encountered him.\n\n Officer Stewart questioned Krause about the incident. Krause explained that\nhe was the owner of the vehicle, but stated that a friend had been driving at the time\nof the incident. Concerned about the safety of the purported “friend” due to the\nextensive damage to the vehicle, Officer Stewart informed Krause that officers would\ncheck local hospitals to locate the driver. Krause then admitted that he had been the\ndriver and sole occupant of the vehicle. Based upon his belief that Krause was\nintoxicated, Officer Stewart performed a preliminary breath test with Krause’s\nconsent. The test revealed that, at about 7:00 a.m., more than seven hours after the\nincident, Krause’s blood alcohol content was .045. Officer Stewart asked Krause to\naccompany him to the Lakeville Police Department. At the police station, after being\nread his Miranda rights, Krause explained his version of the previous evening’s\nevents. Krause claimed he was unable to remember the incident but remembered\ndrinking at a friend’s house, and offered details about the house’s location. Law\nenforcement later learned that Krause had been seen drinking the previous evening\nat the bar of a Lakeville bowling alley, that he appeared to be “getting pretty drunk,”\nand that he was advised by a friend not to drive home based on his state of\nintoxication. Contrary to his version of events, Krause had never been at a friend’s\nhome that evening.\n\n The localizer antenna array was owned by the Federal Aviation Administration,\na federal agency. It was destroyed by the collision and the Airlake Airport operated\n\n -3-\n\fwithout a replacement for 12 days. During these 12 days, only pilots of aircraft with\nspecial equipment could make instrument landings. The localizer antenna array’s\nreplacement cost was $115,323.76.\n\n Krause was charged with one count of willfully interfering with and disabling\nan air navigation facility—the localizer antenna array—in violation of 18 U.S.C.\n§ 32(a)(5), and one count of injuring or committing any depredation against any\nproperty of the United States valued at more than $1,000, in violation of 18 U.S.C.\n§ 1361. The matter proceeded to a jury trial. Krause offered as his defense that he\nwas not criminally culpable due to voluntary intoxication. Krause testified that he\nhad no memory of the events preceding the incident, but that he could recall the\nimpact of his car crashing into the cornfield. Krause explained that he did not\nremember calling his mother or being picked up and that his first memory was riding\nin the tow truck the following morning. Krause testified that he could not remember\nwhere he had been drinking before the incident, but that he understood from others\nthat he had been drinking at a bowling alley. He also attempted to address his\ndishonesty with Officer Stewart, explaining that he had lied about drinking at a\nfriend’s house because he had been a bowling alley patron for years and did not want\nto cause the bowling alley any trouble. Krause also admitted he had been dishonest\nabout another driver because he was “scared of getting a DWI or DUI.” A toxicology\nexpert testified on Krause’s behalf about Krause’s state of intoxication at the time of\nthe incident. The expert opined that, by extrapolating Krause’s blood alcohol content\nfrom his breathalyzer test the following morning, Krause would have been “severely\nintoxicated” at the time of the incident.\n\n Krause also testified about his flight training, acknowledging that he had\npracticed take-offs and landings at the Airlake Airport and that his flight training\nincluded learning about the dangers of unauthorized vehicles on runways and the\nmarkings and signage on runways aimed at preventing unauthorized runway\nincursions. Krause also acknowledged that the house where he lived with his parents\n\n -4-\n\fwas only five miles away from the Airlake Airport. The director of the flight school\nwhere Krause had received his pilot’s license and instrument-pilot rating testified that\nKrause became a licensed pilot in 2011 and received his instrument-pilot rating in\n2012. The flight-school director testified that a localizer antenna array is used in all\ninstrument training phases and that an instrument-rated pilot would necessarily have\nknowledge of localizer antenna arrays. He also testified that all flight students learn\nabout safeguarding against runway incursions and learn about the signs and markings\non runways that make runways distinct from city streets.\n\n At the close of the government’s case, the district court determined that the\ncharge for willfully interfering with and disabling an air navigation facility required\nthat the government show Krause had acted in order to interfere with aircraft in flight.\nBecause the government presented no evidence to this effect, the district court\ngranted Krause’s motion for judgment of acquittal on that count. The remaining\ncount of injuring or committing any depredation against any property of the United\nStates went to the jury, which returned a guilty verdict. At sentencing, the district\ncourt ordered that Krause serve a two-year term of probation and pay restitution in\nthe amount of the replacement cost of the localizer antenna array, or $115,323.76.\nThis appeal follows.\n\n II.\n\n Krause first asserts that his conviction should be vacated because the district\ncourt erroneously instructed the jury as to the elements of the offense, arguing that\nthe jury instruction failed to include the requirement that Krause was aware that the\nlocalizer antenna array was the property of the United States. Although we generally\nreview jury instructions for abuse of discretion, “if as here statutory interpretation is\nrequired, it is an issue of law that we consider de novo.” United States v. Carlson,\n810 F.3d 544, 551 (8th Cir. 2016) (internal quotation marks omitted). “If we\nconclude that the district court’s interpretation of the statute resulted in the omission\n\n -5-\n\fof a required element of the offense, we then apply harmless error review.” Id.\n(internal quotation marks omitted).\n\n Under 18 U.S.C. § 1361, it is unlawful to “willfully injure[] or commit[] any\ndepredation against any property of the United States, or of any department or agency\nthereof . . . .” A violation of this statute can result in a fine and/or not more than ten\nyears imprisonment where the property damaged exceeds the sum of $1,000. We\ndisagree with Krause’s assertion that § 1361 demands that a defendant know the\ndamaged property belongs to the United States.\n\n First, Krause’s argument that the offense requires knowledge of government\nownership is not supported by the statute’s plain language. “In ascertaining the plain\nmeaning of a statute, we presume that a legislature says in a statute what it means and\nmeans in a statute what it says.” Stanley v. Cottrell, Inc., 784 F.3d 454, 465 (8th Cir.\n2015) (internal quotation marks omitted). “When the words of a statute are\nunambiguous, then, this first canon is also the last: judicial inquiry is complete.”\nOwner-Operator Indep. Drivers Ass’n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th\nCir. 2011) (internal quotation marks omitted). The plain language of the statute\nunequivocally does not demand that a person have knowledge that the property\nwillfully injured or destroyed belongs to the United States. Although the word\n“willfully” requires that Krause acted knowingly and voluntarily, the term does not\nrelate to the latter phrase: “property of the United States.” The mens rea of\n“willfully” modifies only “injure or commit”; it does not modify or have any impact\non the words “property of the United States.” This language merely lays out a\njurisdictional prerequisite: the property must belong to the United States for a person\nto be guilty of this offense. See, e.g., Torres v. Lynch, 136 S. Ct. 1619, 1630-33\n(2016) (explaining that the state-of-mind requirements in a criminal statute do not\ngenerally carry through to jurisdictional elements); United States v. X-Citement\nVideo, Inc., 513 U.S. 64, 72 (1994) (stating that a state-of-mind requirement will\n\n\n\n -6-\n\fordinarily be implied only to the “statutory elements that criminalize otherwise\ninnocent conduct”).\n\n Second, Krause’s argument that the unambiguous wording of the statute should\nbe ignored is almost entirely premised on our previous decision, United States v.\nBangert, 645 F.2d 1297 (8th Cir. 1981). Krause’s reliance on Bangert is misplaced.\nThere, the defendants were charged under § 1361 for burning an American flag. In\nappealing their convictions, defendants argued that the evidence was insufficient to\nshow that the flag belonged to the United States or that the defendants knew the flag\nbelonged to the United States. Id. at 1304-05. In considering the sufficiency-of-the-\nevidence challenge, the Court stated that the elements of the crime included that the\nflag belonged to the government, that the flag was damaged, and that the defendants\nacted with knowledge that they were violating the law. Id. at 1305. Although\nevidence related to the defendants’ knowledge of flag ownership allowed the jury to\nconclude that defendants knew they were violating the law, the Court did not hold\nthat knowledge of government ownership is an essential element of a § 1361 offense.\nSee id.\n\n Because we hold that § 1361 does not mandate that the defendant know the\ndamaged property belonged to the United States, we conclude that the district court\nproperly instructed the jury as to the essential elements of the offense.\n\n III.\n\n Krause next asserts that his conviction is not supported by sufficient evidence,\narguing that the evidence showed he lacked the requisite intent because of his\nvoluntary intoxication. “We review the sufficiency of the evidence to sustain a\nconviction de novo, viewing evidence in the light most favorable to the government,\nresolving conflicts in the government’s favor, and accepting all reasonable inferences\nthat support the verdict.” United States v. Morrissey, 895 F.3d 541, 549 (8th Cir.\n\n -7-\n\f2018) (internal quotation marks omitted). “This court will reverse for insufficient\nevidence only if no reasonable jury could have found [the defendant] guilty beyond\na reasonable doubt. This standard applies even when the conviction rests entirely on\ncircumstantial evidence.” United States v. Ramirez, 362 F.3d 521, 524 (8th Cir.\n2004) (citation omitted).\n\n To convict Krause of violating § 1361, the government was required to prove\nthat Krause damaged property, that the property belonged to the United States, and\nthat Krause acted willfully. 18 U.S.C. § 1361. To prove Krause acted willfully, the\ngovernment had to prove that he acted voluntarily, intentionally, and with the\nknowledge that his conduct was unlawful. See Bryan v. United States, 524 U.S. 184,\n201 (1998) (Scalia, J., dissenting) (explaining that the definition of willfully includes\n“an act which is intentional, or knowing, or voluntary, as distinguished from\naccidental” (citation omitted)); Johnson v. U.S. Bancorp Broad-Based Change in\nControl Severance Pay Program, 424 F.3d 734, 740 (8th Cir. 2005); Jury Instr. at 12,\nDist. Ct. Dkt. 89. But, as the district court instructed the jury, Krause’s intoxication\nwould provide a legal excuse if the evidence showed that the effect of the intoxication\nmade it impossible for Krause to have acted willfully. Jury Instr. at 12; see also\nUnited States v. Kenyon, 481 F.3d 1054, 1069-70 (8th Cir. 2007) (discussing\nvoluntary intoxication as a defense to a specific intent crime).\n\n As evidence that his state of intoxication rendered him unable to act willfully,\nKrause offered testimony from a toxicology expert that Krause would have been\n“severely intoxicated” at the time of the incident and would have had a blood alcohol\ncontent of at least .25, more than three times the legal limit; testimony that Officer\nStewart observed the smell of an alcoholic beverage on Krause’s breath and opined\nthat he was still feeling the effects of alcohol the morning after the incident;\ntestimony that Krause’s friend observed him “drunk” at the bowling alley and that she\nurged him not to drive; testimony from Krause’s mother that he exhibited signs of\nintoxication immediately following the crash, including his disorientation when he\n\n -8-\n\fcalled her for a ride; and physical evidence of the straight tracks of the vehicle’s path,\nwhich Krause argued was sufficient to show that he was intoxicated and was unaware\nof what he was doing in striking the antenna array.\n\n But even where “the evidence rationally supports two conflicting hypotheses,\nthe reviewing court will not disturb the conviction.” United States v. Serrano-Lopez,\n366 F.3d 628, 634 (8th Cir. 2004) (citation omitted). To secure a guilty verdict, the\ngovernment “need not exclude every reasonable hypothesis of innocence.” Id.\n(quoting United States v. Butler, 238 F.3d 1001, 1004 (8th Cir. 2001)). Although\nKrause presented evidence of intoxication, the jury was permitted to discredit the\nhypothesis that Krause was so intoxicated he could not act willfully in favor of the\nconclusion that Krause willfully destroyed the antenna array.\n\n Even considering the evidence of Krause’s intoxication, sufficient evidence\nsupports the jury’s conclusion, beyond a reasonable doubt, that Krause acted willfully\nin driving his car into the localizer antenna array. The jury heard evidence of\nKrause’s previous flight training; his knowledge of aircraft and air traffic control,\ninstrumental flying, air navigation, and associated equipment; evidence of Krause’s\nfamiliarity with runway markings and his knowledge of the dangers of cars on\nrunways; testimony that Krause had to leave a paved road, drive past a fence, and\nover a field to access the runway; that he controlled his vehicle at high speeds the\nlength of the runway; that he hit the center of the localizer antenna array; that he was\nable to call his mother to arrange a ride home; that he directed his mother to his exact\nlocation when she had difficulty locating him; that he called a tow truck the following\nmorning in an attempt to avoid criminal culpability; and that he lied to law\nenforcement about the details surrounding the event to avoid culpability and to\nprotect the bowling alley he frequented. Taken together, Krause’s actions demonstrate\na level of rational, knowing, volitional, and intentional actions from which the jury\ncould conclude that Krause willfully destroyed the antenna array. Cf. United States\nv. Thomas, 565 F.3d 438, 442-43 (8th Cir. 2009) (concluding that, under a\n\n -9-\n\fpreponderance of the evidence standard, evidence of defendant’s actions in carrying\nout burglary, including driving to scene and locating correct apartment, and attempts\nto hide conduct from police by discarding weapon and pretending to be asleep\nsufficiently negated voluntary intoxication defense). We thus cannot conclude that\nno jury could have found Krause to have acted willfully beyond a reasonable doubt.\n\n IV.\n\n For the foregoing reasons, we affirm.\n ______________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363071/", "author_raw": "SHEPHERD, Circuit Judge."}]}	SHEPHERD	KELLY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585818/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Charles Maxwell KRAUSE, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3674\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Charles Maxwell Krause\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - St. Paul\n ____________\n\n Submitted: October 19, 2018\n Filed: January 30, 2019\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\n\nSHEPHERD, Circuit Judge.\n\n A jury found Charles Maxwell Krause guilty of one count of damaging\nproperty of the United States valued at more than $1,000 after a drunk-driving\nincident in which Krause struck and destroyed a localizer antenna array at a\n\fLakeville, Minnesota area airport. The district court1 sentenced Krause to two years\nprobation and ordered restitution in the amount of $115,323.76. Krause challenges\nhis conviction on two grounds: that the district court erroneously instructed the jury\nas to the elements of the offense and that the evidence was insufficient to support a\nguilty verdict. Having jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I.\n\n On the night of September 5, 2014, Krause, who was a licensed pilot, drove his\nChevrolet Cruze onto the runway of Airlake Airport, a small, regional airport in\nLakeville, Minnesota. To reach the runway from city streets, Krause had to leave the\npaved road, drive across a field, and drive around a gate. Krause drove his vehicle\nthe entire distance of the runway at high speeds, continued past the end of the runway\nonto a grassy area, and struck head on a localizer antenna array—a device used to aid\npilots in making instrument landings. Krause then drove into a ditch and flipped his\nvehicle, which came to rest in a nearby cornfield. Immediately after the crash, at\nabout 11:30 p.m., Krause, who sustained only minor injuries, called his mother asking\nfor a ride home. His mother testified at trial that Krause seemed disoriented on the\ncall and was unsure of where he was located. She remained on the phone with him\nwhile he described his location, and she ultimately located him near the airport.\nNeither Krause nor his mother contacted authorities to report the incident because\nneither wanted to implicate Krause in a drunk-driving offense. The following\nmorning, Krause called a tow truck to retrieve his vehicle.\n\n On the morning of September 6, 2014, Lakeville Police Officer Thomas\nStewart responded to a call about a damaged vehicle left in a cornfield near the\nrunway. When he arrived at the scene, he observed the Chevrolet Cruze with\n\n\n 1\n The Honorable Richard H. Kyle, United States District Judge for the District\nof Minnesota.\n\n -2-\n\fsignificant damage, including deployed airbags, a dented roof, and broken out\nwindows. Based on the state of the vehicle, Officer Stewart believed it had been\ntraveling at high speeds or had been “outrunning its headlights” and that it had\nflipped over before coming to rest. Shortly after Officer Stewart arrived, Krause\narrived in a tow truck. Officer Stewart observed that Krause had bloodshot, watery\neyes, was slurring his speech, and had the smell of an alcoholic beverage on his\nbreath. Officer Stewart opined that Krause was still feeling the effects of alcohol\nwhen he encountered him.\n\n Officer Stewart questioned Krause about the incident. Krause explained that\nhe was the owner of the vehicle, but stated that a friend had been driving at the time\nof the incident. Concerned about the safety of the purported “friend” due to the\nextensive damage to the vehicle, Officer Stewart informed Krause that officers would\ncheck local hospitals to locate the driver. Krause then admitted that he had been the\ndriver and sole occupant of the vehicle. Based upon his belief that Krause was\nintoxicated, Officer Stewart performed a preliminary breath test with Krause’s\nconsent. The test revealed that, at about 7:00 a.m., more than seven hours after the\nincident, Krause’s blood alcohol content was .045. Officer Stewart asked Krause to\naccompany him to the Lakeville Police Department. At the police station, after being\nread his Miranda rights, Krause explained his version of the previous evening’s\nevents. Krause claimed he was unable to remember the incident but remembered\ndrinking at a friend’s house, and offered details about the house’s location. Law\nenforcement later learned that Krause had been seen drinking the previous evening\nat the bar of a Lakeville bowling alley, that he appeared to be “getting pretty drunk,”\nand that he was advised by a friend not to drive home based on his state of\nintoxication. Contrary to his version of events, Krause had never been at a friend’s\nhome that evening.\n\n The localizer antenna array was owned by the Federal Aviation Administration,\na federal agency. It was destroyed by the collision and the Airlake Airport operated\n\n -3-\n\fwithout a replacement for 12 days. During these 12 days, only pilots of aircraft with\nspecial equipment could make instrument landings. The localizer antenna array’s\nreplacement cost was $115,323.76.\n\n Krause was charged with one count of willfully interfering with and disabling\nan air navigation facility—the localizer antenna array—in violation of 18 U.S.C.\n§ 32(a)(5), and one count of injuring or committing any depredation against any\nproperty of the United States valued at more than $1,000, in violation of 18 U.S.C.\n§ 1361. The matter proceeded to a jury trial. Krause offered as his defense that he\nwas not criminally culpable due to voluntary intoxication. Krause testified that he\nhad no memory of the events preceding the incident, but that he could recall the\nimpact of his car crashing into the cornfield. Krause explained that he did not\nremember calling his mother or being picked up and that his first memory was riding\nin the tow truck the following morning. Krause testified that he could not remember\nwhere he had been drinking before the incident, but that he understood from others\nthat he had been drinking at a bowling alley. He also attempted to address his\ndishonesty with Officer Stewart, explaining that he had lied about drinking at a\nfriend’s house because he had been a bowling alley patron for years and did not want\nto cause the bowling alley any trouble. Krause also admitted he had been dishonest\nabout another driver because he was “scared of getting a DWI or DUI.” A toxicology\nexpert testified on Krause’s behalf about Krause’s state of intoxication at the time of\nthe incident. The expert opined that, by extrapolating Krause’s blood alcohol content\nfrom his breathalyzer test the following morning, Krause would have been “severely\nintoxicated” at the time of the incident.\n\n Krause also testified about his flight training, acknowledging that he had\npracticed take-offs and landings at the Airlake Airport and that his flight training\nincluded learning about the dangers of unauthorized vehicles on runways and the\nmarkings and signage on runways aimed at preventing unauthorized runway\nincursions. Krause also acknowledged that the house where he lived with his parents\n\n -4-\n\fwas only five miles away from the Airlake Airport. The director of the flight school\nwhere Krause had received his pilot’s license and instrument-pilot rating testified that\nKrause became a licensed pilot in 2011 and received his instrument-pilot rating in\n2012. The flight-school director testified that a localizer antenna array is used in all\ninstrument training phases and that an instrument-rated pilot would necessarily have\nknowledge of localizer antenna arrays. He also testified that all flight students learn\nabout safeguarding against runway incursions and learn about the signs and markings\non runways that make runways distinct from city streets.\n\n At the close of the government’s case, the district court determined that the\ncharge for willfully interfering with and disabling an air navigation facility required\nthat the government show Krause had acted in order to interfere with aircraft in flight.\nBecause the government presented no evidence to this effect, the district court\ngranted Krause’s motion for judgment of acquittal on that count. The remaining\ncount of injuring or committing any depredation against any property of the United\nStates went to the jury, which returned a guilty verdict. At sentencing, the district\ncourt ordered that Krause serve a two-year term of probation and pay restitution in\nthe amount of the replacement cost of the localizer antenna array, or $115,323.76.\nThis appeal follows.\n\n II.\n\n Krause first asserts that his conviction should be vacated because the district\ncourt erroneously instructed the jury as to the elements of the offense, arguing that\nthe jury instruction failed to include the requirement that Krause was aware that the\nlocalizer antenna array was the property of the United States. Although we generally\nreview jury instructions for abuse of discretion, “if as here statutory interpretation is\nrequired, it is an issue of law that we consider de novo.” United States v. Carlson,\n810 F.3d 544, 551 (8th Cir. 2016) (internal quotation marks omitted). “If we\nconclude that the district court’s interpretation of the statute resulted in the omission\n\n -5-\n\fof a required element of the offense, we then apply harmless error review.” Id.\n(internal quotation marks omitted).\n\n Under 18 U.S.C. § 1361, it is unlawful to “willfully injure[] or commit[] any\ndepredation against any property of the United States, or of any department or agency\nthereof . . . .” A violation of this statute can result in a fine and/or not more than ten\nyears imprisonment where the property damaged exceeds the sum of $1,000. We\ndisagree with Krause’s assertion that § 1361 demands that a defendant know the\ndamaged property belongs to the United States.\n\n First, Krause’s argument that the offense requires knowledge of government\nownership is not supported by the statute’s plain language. “In ascertaining the plain\nmeaning of a statute, we presume that a legislature says in a statute what it means and\nmeans in a statute what it says.” Stanley v. Cottrell, Inc., 784 F.3d 454, 465 (8th Cir.\n2015) (internal quotation marks omitted). “When the words of a statute are\nunambiguous, then, this first canon is also the last: judicial inquiry is complete.”\nOwner-Operator Indep. Drivers Ass’n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th\nCir. 2011) (internal quotation marks omitted). The plain language of the statute\nunequivocally does not demand that a person have knowledge that the property\nwillfully injured or destroyed belongs to the United States. Although the word\n“willfully” requires that Krause acted knowingly and voluntarily, the term does not\nrelate to the latter phrase: “property of the United States.” The mens rea of\n“willfully” modifies only “injure or commit”; it does not modify or have any impact\non the words “property of the United States.” This language merely lays out a\njurisdictional prerequisite: the property must belong to the United States for a person\nto be guilty of this offense. See, e.g., Torres v. Lynch, 136 S. Ct. 1619, 1630-33\n(2016) (explaining that the state-of-mind requirements in a criminal statute do not\ngenerally carry through to jurisdictional elements); United States v. X-Citement\nVideo, Inc., 513 U.S. 64, 72 (1994) (stating that a state-of-mind requirement will\n\n\n\n -6-\n\fordinarily be implied only to the “statutory elements that criminalize otherwise\ninnocent conduct”).\n\n Second, Krause’s argument that the unambiguous wording of the statute should\nbe ignored is almost entirely premised on our previous decision, United States v.\nBangert, 645 F.2d 1297 (8th Cir. 1981). Krause’s reliance on Bangert is misplaced.\nThere, the defendants were charged under § 1361 for burning an American flag. In\nappealing their convictions, defendants argued that the evidence was insufficient to\nshow that the flag belonged to the United States or that the defendants knew the flag\nbelonged to the United States. Id. at 1304-05. In considering the sufficiency-of-the-\nevidence challenge, the Court stated that the elements of the crime included that the\nflag belonged to the government, that the flag was damaged, and that the defendants\nacted with knowledge that they were violating the law. Id. at 1305. Although\nevidence related to the defendants’ knowledge of flag ownership allowed the jury to\nconclude that defendants knew they were violating the law, the Court did not hold\nthat knowledge of government ownership is an essential element of a § 1361 offense.\nSee id.\n\n Because we hold that § 1361 does not mandate that the defendant know the\ndamaged property belonged to the United States, we conclude that the district court\nproperly instructed the jury as to the essential elements of the offense.\n\n III.\n\n Krause next asserts that his conviction is not supported by sufficient evidence,\narguing that the evidence showed he lacked the requisite intent because of his\nvoluntary intoxication. “We review the sufficiency of the evidence to sustain a\nconviction de novo, viewing evidence in the light most favorable to the government,\nresolving conflicts in the government’s favor, and accepting all reasonable inferences\nthat support the verdict.” United States v. Morrissey, 895 F.3d 541, 549 (8th Cir.\n\n -7-\n\f2018) (internal quotation marks omitted). “This court will reverse for insufficient\nevidence only if no reasonable jury could have found [the defendant] guilty beyond\na reasonable doubt. This standard applies even when the conviction rests entirely on\ncircumstantial evidence.” United States v. Ramirez, 362 F.3d 521, 524 (8th Cir.\n2004) (citation omitted).\n\n To convict Krause of violating § 1361, the government was required to prove\nthat Krause damaged property, that the property belonged to the United States, and\nthat Krause acted willfully. 18 U.S.C. § 1361. To prove Krause acted willfully, the\ngovernment had to prove that he acted voluntarily, intentionally, and with the\nknowledge that his conduct was unlawful. See Bryan v. United States, 524 U.S. 184,\n201 (1998) (Scalia, J., dissenting) (explaining that the definition of willfully includes\n“an act which is intentional, or knowing, or voluntary, as distinguished from\naccidental” (citation omitted)); Johnson v. U.S. Bancorp Broad-Based Change in\nControl Severance Pay Program, 424 F.3d 734, 740 (8th Cir. 2005); Jury Instr. at 12,\nDist. Ct. Dkt. 89. But, as the district court instructed the jury, Krause’s intoxication\nwould provide a legal excuse if the evidence showed that the effect of the intoxication\nmade it impossible for Krause to have acted willfully. Jury Instr. at 12; see also\nUnited States v. Kenyon, 481 F.3d 1054, 1069-70 (8th Cir. 2007) (discussing\nvoluntary intoxication as a defense to a specific intent crime).\n\n As evidence that his state of intoxication rendered him unable to act willfully,\nKrause offered testimony from a toxicology expert that Krause would have been\n“severely intoxicated” at the time of the incident and would have had a blood alcohol\ncontent of at least .25, more than three times the legal limit; testimony that Officer\nStewart observed the smell of an alcoholic beverage on Krause’s breath and opined\nthat he was still feeling the effects of alcohol the morning after the incident;\ntestimony that Krause’s friend observed him “drunk” at the bowling alley and that she\nurged him not to drive; testimony from Krause’s mother that he exhibited signs of\nintoxication immediately following the crash, including his disorientation when he\n\n -8-\n\fcalled her for a ride; and physical evidence of the straight tracks of the vehicle’s path,\nwhich Krause argued was sufficient to show that he was intoxicated and was unaware\nof what he was doing in striking the antenna array.\n\n But even where “the evidence rationally supports two conflicting hypotheses,\nthe reviewing court will not disturb the conviction.” United States v. Serrano-Lopez,\n366 F.3d 628, 634 (8th Cir. 2004) (citation omitted). To secure a guilty verdict, the\ngovernment “need not exclude every reasonable hypothesis of innocence.” Id.\n(quoting United States v. Butler, 238 F.3d 1001, 1004 (8th Cir. 2001)). Although\nKrause presented evidence of intoxication, the jury was permitted to discredit the\nhypothesis that Krause was so intoxicated he could not act willfully in favor of the\nconclusion that Krause willfully destroyed the antenna array.\n\n Even considering the evidence of Krause’s intoxication, sufficient evidence\nsupports the jury’s conclusion, beyond a reasonable doubt, that Krause acted willfully\nin driving his car into the localizer antenna array. The jury heard evidence of\nKrause’s previous flight training; his knowledge of aircraft and air traffic control,\ninstrumental flying, air navigation, and associated equipment; evidence of Krause’s\nfamiliarity with runway markings and his knowledge of the dangers of cars on\nrunways; testimony that Krause had to leave a paved road, drive past a fence, and\nover a field to access the runway; that he controlled his vehicle at high speeds the\nlength of the runway; that he hit the center of the localizer antenna array; that he was\nable to call his mother to arrange a ride home; that he directed his mother to his exact\nlocation when she had difficulty locating him; that he called a tow truck the following\nmorning in an attempt to avoid criminal culpability; and that he lied to law\nenforcement about the details surrounding the event to avoid culpability and to\nprotect the bowling alley he frequented. Taken together, Krause’s actions demonstrate\na level of rational, knowing, volitional, and intentional actions from which the jury\ncould conclude that Krause willfully destroyed the antenna array. Cf. United States\nv. Thomas, 565 F.3d 438, 442-43 (8th Cir. 2009) (concluding that, under a\n\n -9-\n\fpreponderance of the evidence standard, evidence of defendant’s actions in carrying\nout burglary, including driving to scene and locating correct apartment, and attempts\nto hide conduct from police by discarding weapon and pretending to be asleep\nsufficiently negated voluntary intoxication defense). We thus cannot conclude that\nno jury could have found Krause to have acted willfully beyond a reasonable doubt.\n\n IV.\n\n For the foregoing reasons, we affirm.\n ______________________________\n\n\n\n\n -10-\n[END_CASE]", "role": "user" } ]
4,585,819	UNITED STATES of America, Plaintiff - Appellee v. Airrington L. SYKES, Defendant - Appellant	United States v. Airrington Sykes	2019-01-30	17-3221	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Arnold, Benton", "parties": "", "opinions": [{"author": "ARNOLD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3221\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Airrington L. Sykes\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: October 18, 2018\n Filed: January 30, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and BENTON, Circuit Judges.\n ____________\n\nARNOLD, Circuit Judge.\n\n After the government indicted Airrington Sykes for being a felon in possession\nof a firearm, see 18 U.S.C. § 922(g)(1), he moved to suppress evidence that a police\nofficer obtained after he stopped Sykes and frisked him. When the district court1\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa, adopting the report and recommendation of the Honorable C.J.\n\fdenied the motion, Sykes pleaded guilty to the charge but reserved his right to appeal\nthe denial of his motion. He appeals and we affirm.\n\n On a December evening just shy of midnight, a police officer in Waterloo,\nIowa, was dispatched to a 24-hour laundromat where he met a woman in the parking\nlot who reported finding a loaded handgun magazine in a laundry basket. She\nexplained that the only other people in the laundromat at the time she discovered the\nmagazine were two men dressed in black. She stated she was unsure if they had\nanything to do with the magazine, but she noticed they had stood near her basket at\none point. She said that the men were still in the laundromat, though other people had\nsince arrived.\n\n The officer entered the laundromat and began approaching the two men in\nquestion. His body camera shows that, when he entered the aisle where the men stood,\none of the men, Sykes, turned and began walking away. The officer attempted to\nintercept Sykes at a back corner of the laundromat near an exit and a bathroom. The\nofficer's body camera shows Sykes bypass the exit, enter the restroom, and close the\ndoor. Moments later the officer opened the restroom door and told Sykes to \"give me\none second\" and that he needed \"one second of [his] time.\" Sykes complied, and the\nofficer grabbed Sykes's sleeve and guided him out of the restroom. He then patted\nSykes for weapons and discovered a handgun in Sykes's pants pocket.\n\n Sykes's primary argument on appeal is that the officer lacked a reasonable\nsuspicion that Sykes was committing a crime. The government disagrees, responding\nthat Iowa Code § 724.4(1), which makes it an aggravated misdemeanor for someone\nto go \"armed with a dangerous weapon concealed on or about the person,\" supplied\nthe legal basis for the stop. Sykes counters that the officer had no reason to believe\n\n\n\nWilliams, then Magistrate Judge for the Northern District of Iowa, now United States\nDistrict Judge for the Northern District of Iowa.\n\n -2-\n\fthat he lacked a permit for the gun or that he was anything other than a lawful gun\ncarrier.\n\n We recently decided a case that presented this very issue. See United States v.\nPope, 910 F.3d 413 (8th Cir. 2018). We held in Pope that an officer in Iowa may\nbriefly detain someone whom the officer reasonably believes is possessing a\nconcealed weapon. Id. at 416. We explained that, since a concealed-weapons permit\nis merely an affirmative defense to a charge under § 724.4(1), an officer may presume\nthat the suspect is committing a criminal offense until the suspect demonstrates\notherwise. Id. at 415–16. We therefore reject Sykes's contention.\n\n Sykes also argues that the officer lacked a reasonable suspicion that he even\npossessed a gun. We disagree. It is true that this case is unlike Pope, where an officer\nsaw the suspect conceal a weapon in his pants. But here we have a report from a\nknown person with whom the officer had an extensive discussion and who asserted\nthat she found a loaded handgun magazine of unknown origins; and she identified the\nonly two people who had access to the location where the magazine was found. We\nthink it reasonable to suspect that a person with loaded handgun magazines may have\na handgun since, without the handgun, the magazines are of little use. We also believe\nit was reasonable to suspect that Sykes or his companion had a concealed gun, as\nopposed to a gun openly carried, since the woman who found the magazine never\nreported that she actually saw a gun in Sykes's or his companion's possession. And the\nofficers who approached Sykes never testified to seeing a gun being openly displayed,\neither through the windows of the laundromat or during their approach of Sykes. See\nUnited States v. Polite, 910 F.3d 384, 388 (8th Cir. 2018).\n\n We want to emphasize that we give no weight to the fact that Sykes turned and\nwalked away from the officers as they approached him. Though a person's unprovoked\n\"flight\" from police may be considered in the reasonable-suspicion calculus, a person's\ndecision during a consensual police encounter \"to ignore the police and go about his\n\n -3-\n\fbusiness\" cannot. See Illinois v. Wardlow, 528 U.S. 119, 124–26 (2000). After\nreviewing the body-camera video ourselves, we think Sykes's avoidance of the officer\nlies near the intersection of these two principles. But we need not decide the legal\nsignificance, if any, of Sykes's walking away from the officer because we think the\nofficer had reasonable suspicion to detain Sykes even before Sykes began to leave.\n\n Sykes suggests that the officer did not have reasonable suspicion at that point\nbecause he had no reason to suspect that Sykes, as opposed to the other person\npresent, was engaged in criminal activity, and the Fourth Amendment requires \"a\nparticularized and objective basis for suspecting the particular person stopped of\ncriminal activity.\" See United States v. Cortez, 449 U.S. 411, 417–18 (1981). As he\nsees it, \"nothing points to Sykes possessing the firearm instead of his friend.\"\n\n For stop-and-frisk purposes, however, the Fourth Amendment does not require\nthat an officer must suspect only one person to the exclusion of all others. \"[T]he\nsimultaneous stopping of multiple 'suspects' for a one-person crime may sometimes\nbe justified by the virtual certainty that the perpetrator is a member of that group and\nthat means of singling him out will soon be available.\" 4 Wayne R. LaFave, Search\n& Seizure: A Treatise on the Fourth Amendment § 9.5(b) (5th ed. Oct. 2018). The\nThird Circuit's decision in United States v. Ramos nicely illustrates this principle. 443\nF.3d 304 (3d Cir. 2006). There, when police officers drove between two vehicles in\nan otherwise empty parking lot, one of the officers smelled marijuana. After one of\nthe vehicles left the lot, the officers conducted a traffic stop and discovered illegal\ncontraband. A defendant in the vehicle argued that the officers' stop violated the\nFourth Amendment because the officers' suspicion of him was not sufficiently\nparticularized since the odor could have been coming from the other vehicle. The\nThird Circuit disagreed, holding that \"it would have been reasonable for the officers\nto conclude that the odor was coming from one, the other, or both vehicles,\" and so\ntheir suspicion was sufficiently particularized under the Fourth Amendment to allow\nthem to stop the vehicle they stopped. Id. at 309.\n\n -4-\n\f We conclude that it would likewise have been reasonable here for the officer\nto suspect that Sykes, his companion, or both were carrying a concealed firearm, so\nwe detect no constitutional violation. In the abstract, we recognize that as the number\nof suspects to be stopped increases, it will be less likely that suspicion will be\nsufficiently particularized to meet constitutional standards. Various considerations\nwill bear on whether a given search is particularized enough in the circumstances. The\nkey, as is typical in the Fourth Amendment context, is reasonableness, see Cty. of L.A.\nv. Mendez, 137 S. Ct. 1539, 1546 (2017), and we think it was reasonable in the\ncircumstances here for the officer to detain Sykes briefly to investigate whether he\nwas unlawfully carrying a concealed weapon.\n\n Sykes also maintains that, even if the officer had reasonable suspicion to stop\nhim, he lacked reasonable suspicion to frisk him. An officer may frisk a suspect whom\nhe has lawfully stopped if he believes the suspect is \"armed and dangerous.\" Terry v.\nOhio, 392 U.S. 1, 27 (1968). According to Sykes, the officer had no reason to believe\nthat he was dangerous just because he was carrying a concealed weapon. We resolved\nthis very issue in Pope, holding that an officer may indeed frisk someone he has\nlawfully stopped if he reasonably believes the person is armed with a gun, regardless\nof whether the person possesses the gun legally. See Pope, 910 F.3d at 416–17.\nSykes's argument therefore fails.\n\n We also note that Sykes appears to raise a Second Amendment challenge to\n§ 724.4(1) in his reply brief. Because he failed to raise the argument in his opening\nbrief, we decline to address it. See id. at 417.\n\n We turn now to Sykes's sentence. Under USSG § 2K2.1(a), the base offense\nlevel of a person convicted of being a felon in possession of a firearm increases if he\nhas previously been convicted of a crime of violence. A \"crime of violence\" is\ndefined, in relevant part, as a federal or state offense that \"has as an element the use,\nattempted use, or threatened use of physical force against the person of another.\"\n\n -5-\n\fUSSG § 4B1.2(a)(1). Sykes argues that the district court erred when it deemed his\nprior Illinois conviction for aggravated vehicular hijacking a crime of violence. See\nUSSG § 2K2.1(a)(4)(A). We review de novo the district court's designation of a prior\nconviction as a crime of violence. United States v. Williams, 899 F.3d 659, 662 (8th\nCir. 2018).\n\n Sykes was convicted of aggravated vehicular hijacking because, while armed\nwith a firearm, he \"knowingly t[ook] a motor vehicle from the person or the\nimmediate presence of another by the use of force or by threatening the imminent use\nof force.\" 720 Ill. Comp. Stat. 5/18–3(a), –4(a)(4). Though the definition of this crime\nexplicitly requires the actual or threatened use of force, Sykes maintains that the crime\nstill does not have \"as an element the use, attempted use, or threatened use of physical\nforce against the person of another\" because it does not require, as it must, \"force\ncapable of causing physical pain or injury.\" See Johnson v. United States, 559 U.S.\n133, 140 (2010).\n\n To make his point, Sykes invites us to consider Illinois robbery, which similarly\nrequires the taking of property \"by the use of force or by threatening the imminent use\nof force.\" See 720 Ill. Comp. Stat. 5/18–1(a). Indeed, Illinois courts have explained\nthat the robbery and vehicular-hijacking statutes are \"so similar that vehicular\nhijacking could be fairly described, for all practical purposes, as robbery of a specific\nkind of property, a motor vehicle,\" and \"[g]iven the similarity in language,\" Illinois\ncourts have \"analogized to the robbery statute when interpreting the vehicular\nhijacking statute.\" People v. Jackson, 65 N.E.3d 550, 559 (Ill. App. Ct. 2016). Sykes\nthen argues that one can commit robbery in Illinois with nonviolent force, and he\npurports to identify cases in which those convicted of Illinois robbery did not use\nviolent force. For example, he points to People v. Taylor, 541 N.E.2d 677, 678 (Ill.\n1989), which involved a robbery conviction where the defendant snatched a necklace\noff the victim's neck, and People v. Merchant, 836 N.E.2d 820, 821 (Ill. App. Ct.\n\n\n\n -6-\n\f2005), where someone was convicted of robbery after \"tussling on the sidewalk\" with\nthe victim over money.\n\n The Supreme Court's recent decision in Stokeling v. United States, No.\n17–5554, 2019 WL 189343 (Jan. 15, 2019), forecloses Sykes's argument. In Stokeling,\nthe Court considered whether a Florida robbery conviction constituted a violent felony\nunder the Armed Career Criminal Act. The relevant definition of a violent felony\nunder the ACCA and the definition of a crime of violence under the Guidelines are so\nsimilar that we generally consider cases interpreting them \"interchangeably.\" See Boaz\nv. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018). The Stokeling Court held that\nthe ACCA intended common-law robberies to be violent felonies even though\ncommon-law robbery required only sufficient force to overcome a victim's\nresistance, \"however slight the resistance.\" 2019 WL 189343, at 4. Courts in Florida,\nand in most states for that matter, had subscribed to this common-law notion of force,\nand the Court \"declined to construe the statute in a way that would render it\ninapplicable in many States.\" Id., at 5–6.\n\n Illinois's definition of robbery fits the common-law mold. As in Florida, one\ncommits robbery in Illinois when he uses force sufficient to overcome a victim's\nresistance, however slight. See Taylor, 541 N.E.2d at 679–80. As in Florida, one does\nnot commit robbery in Illinois when he snatches property from the person of another\nif the force involved was \"seemingly imperceptible to the victim.\" People v. Bowel,\n488 N.E.2d 995, 997–98 (Ill. 1986); see also Stokeling, 2019 WL 189343, at 9.\nFlorida and Illinois appear to draw the same line between robbery, which requires\nforce, and less serious crimes like theft or larceny, which don't. And as the Court\nexplained in Stokeling, though in some cases only slight force is necessary to\novercome a victim's resistance, such force \"is inherently 'violent' in the sense\ncontemplated by Johnson\" and capable of causing physical pain or injury because it\n\"necessarily involves a physical confrontation and struggle.\" See Stokeling, 2019 WL\n189343, at 7. Since the Supreme Court has held that common-law robbery \"has as\n\n -7-\n\fan element the use, attempted use, or threatened use of physical force against the\nperson of another,\" and Illinois adheres to the common-law definition of robbery, we\nreject Sykes's argument.\n\n Sykes also points to a case called In re Thomas T., 63 N.E.3d 284, 287–88 (Ill.\nApp. Ct. 2016) to argue that Illinois courts define \"force\" in the vehicular-hijacking\ncontext as \"power, violence, compulsion, or constraint exerted upon or against a\nperson or thing\"—a definition he maintains does not require violent force. Even if the\nThomas T. court actually adopted such a definition, a matter we need not decide,\nThomas T. involved vehicular invasion, a wholly different crime. See 720 Ill. Comp.\nStat. 5/18–6. Illinois courts have distinguished vehicular invasion from vehicular\nhijacking by the amount of force each requires: A person can \"commit the offense of\nvehicular invasion without the use of physical force or violence against an individual,\"\nPeople v. McDaniel, No. 1-13-2679, 2015 WL 6460052, at *9–10 (Ill. App. Ct. Dec.\n14, 2015) (unpublished), but an Illinois court could not \"conceive of[] a situation in\nwhich a defendant could commit vehicular hijacking without using or threatening the\nuse of physical force or violence.\" People v. Wooden, 16 N.E.3d 850, 855 (Ill. App.\nCt. 2014). We therefore see no error here.\n\n Affirmed.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363072/", "author_raw": "ARNOLD, Circuit Judge."}]}	WOLLMAN	ARNOLD	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585819/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Airrington L. SYKES, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3221\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Airrington L. Sykes\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: October 18, 2018\n Filed: January 30, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and BENTON, Circuit Judges.\n ____________\n\nARNOLD, Circuit Judge.\n\n After the government indicted Airrington Sykes for being a felon in possession\nof a firearm, see 18 U.S.C. § 922(g)(1), he moved to suppress evidence that a police\nofficer obtained after he stopped Sykes and frisked him. When the district court1\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa, adopting the report and recommendation of the Honorable C.J.\n\fdenied the motion, Sykes pleaded guilty to the charge but reserved his right to appeal\nthe denial of his motion. He appeals and we affirm.\n\n On a December evening just shy of midnight, a police officer in Waterloo,\nIowa, was dispatched to a 24-hour laundromat where he met a woman in the parking\nlot who reported finding a loaded handgun magazine in a laundry basket. She\nexplained that the only other people in the laundromat at the time she discovered the\nmagazine were two men dressed in black. She stated she was unsure if they had\nanything to do with the magazine, but she noticed they had stood near her basket at\none point. She said that the men were still in the laundromat, though other people had\nsince arrived.\n\n The officer entered the laundromat and began approaching the two men in\nquestion. His body camera shows that, when he entered the aisle where the men stood,\none of the men, Sykes, turned and began walking away. The officer attempted to\nintercept Sykes at a back corner of the laundromat near an exit and a bathroom. The\nofficer's body camera shows Sykes bypass the exit, enter the restroom, and close the\ndoor. Moments later the officer opened the restroom door and told Sykes to \"give me\none second\" and that he needed \"one second of [his] time.\" Sykes complied, and the\nofficer grabbed Sykes's sleeve and guided him out of the restroom. He then patted\nSykes for weapons and discovered a handgun in Sykes's pants pocket.\n\n Sykes's primary argument on appeal is that the officer lacked a reasonable\nsuspicion that Sykes was committing a crime. The government disagrees, responding\nthat Iowa Code § 724.4(1), which makes it an aggravated misdemeanor for someone\nto go \"armed with a dangerous weapon concealed on or about the person,\" supplied\nthe legal basis for the stop. Sykes counters that the officer had no reason to believe\n\n\n\nWilliams, then Magistrate Judge for the Northern District of Iowa, now United States\nDistrict Judge for the Northern District of Iowa.\n\n -2-\n\fthat he lacked a permit for the gun or that he was anything other than a lawful gun\ncarrier.\n\n We recently decided a case that presented this very issue. See United States v.\nPope, 910 F.3d 413 (8th Cir. 2018). We held in Pope that an officer in Iowa may\nbriefly detain someone whom the officer reasonably believes is possessing a\nconcealed weapon. Id. at 416. We explained that, since a concealed-weapons permit\nis merely an affirmative defense to a charge under § 724.4(1), an officer may presume\nthat the suspect is committing a criminal offense until the suspect demonstrates\notherwise. Id. at 415–16. We therefore reject Sykes's contention.\n\n Sykes also argues that the officer lacked a reasonable suspicion that he even\npossessed a gun. We disagree. It is true that this case is unlike Pope, where an officer\nsaw the suspect conceal a weapon in his pants. But here we have a report from a\nknown person with whom the officer had an extensive discussion and who asserted\nthat she found a loaded handgun magazine of unknown origins; and she identified the\nonly two people who had access to the location where the magazine was found. We\nthink it reasonable to suspect that a person with loaded handgun magazines may have\na handgun since, without the handgun, the magazines are of little use. We also believe\nit was reasonable to suspect that Sykes or his companion had a concealed gun, as\nopposed to a gun openly carried, since the woman who found the magazine never\nreported that she actually saw a gun in Sykes's or his companion's possession. And the\nofficers who approached Sykes never testified to seeing a gun being openly displayed,\neither through the windows of the laundromat or during their approach of Sykes. See\nUnited States v. Polite, 910 F.3d 384, 388 (8th Cir. 2018).\n\n We want to emphasize that we give no weight to the fact that Sykes turned and\nwalked away from the officers as they approached him. Though a person's unprovoked\n\"flight\" from police may be considered in the reasonable-suspicion calculus, a person's\ndecision during a consensual police encounter \"to ignore the police and go about his\n\n -3-\n\fbusiness\" cannot. See Illinois v. Wardlow, 528 U.S. 119, 124–26 (2000). After\nreviewing the body-camera video ourselves, we think Sykes's avoidance of the officer\nlies near the intersection of these two principles. But we need not decide the legal\nsignificance, if any, of Sykes's walking away from the officer because we think the\nofficer had reasonable suspicion to detain Sykes even before Sykes began to leave.\n\n Sykes suggests that the officer did not have reasonable suspicion at that point\nbecause he had no reason to suspect that Sykes, as opposed to the other person\npresent, was engaged in criminal activity, and the Fourth Amendment requires \"a\nparticularized and objective basis for suspecting the particular person stopped of\ncriminal activity.\" See United States v. Cortez, 449 U.S. 411, 417–18 (1981). As he\nsees it, \"nothing points to Sykes possessing the firearm instead of his friend.\"\n\n For stop-and-frisk purposes, however, the Fourth Amendment does not require\nthat an officer must suspect only one person to the exclusion of all others. \"[T]he\nsimultaneous stopping of multiple 'suspects' for a one-person crime may sometimes\nbe justified by the virtual certainty that the perpetrator is a member of that group and\nthat means of singling him out will soon be available.\" 4 Wayne R. LaFave, Search\n& Seizure: A Treatise on the Fourth Amendment § 9.5(b) (5th ed. Oct. 2018). The\nThird Circuit's decision in United States v. Ramos nicely illustrates this principle. 443\nF.3d 304 (3d Cir. 2006). There, when police officers drove between two vehicles in\nan otherwise empty parking lot, one of the officers smelled marijuana. After one of\nthe vehicles left the lot, the officers conducted a traffic stop and discovered illegal\ncontraband. A defendant in the vehicle argued that the officers' stop violated the\nFourth Amendment because the officers' suspicion of him was not sufficiently\nparticularized since the odor could have been coming from the other vehicle. The\nThird Circuit disagreed, holding that \"it would have been reasonable for the officers\nto conclude that the odor was coming from one, the other, or both vehicles,\" and so\ntheir suspicion was sufficiently particularized under the Fourth Amendment to allow\nthem to stop the vehicle they stopped. Id. at 309.\n\n -4-\n\f We conclude that it would likewise have been reasonable here for the officer\nto suspect that Sykes, his companion, or both were carrying a concealed firearm, so\nwe detect no constitutional violation. In the abstract, we recognize that as the number\nof suspects to be stopped increases, it will be less likely that suspicion will be\nsufficiently particularized to meet constitutional standards. Various considerations\nwill bear on whether a given search is particularized enough in the circumstances. The\nkey, as is typical in the Fourth Amendment context, is reasonableness, see Cty. of L.A.\nv. Mendez, 137 S. Ct. 1539, 1546 (2017), and we think it was reasonable in the\ncircumstances here for the officer to detain Sykes briefly to investigate whether he\nwas unlawfully carrying a concealed weapon.\n\n Sykes also maintains that, even if the officer had reasonable suspicion to stop\nhim, he lacked reasonable suspicion to frisk him. An officer may frisk a suspect whom\nhe has lawfully stopped if he believes the suspect is \"armed and dangerous.\" Terry v.\nOhio, 392 U.S. 1, 27 (1968). According to Sykes, the officer had no reason to believe\nthat he was dangerous just because he was carrying a concealed weapon. We resolved\nthis very issue in Pope, holding that an officer may indeed frisk someone he has\nlawfully stopped if he reasonably believes the person is armed with a gun, regardless\nof whether the person possesses the gun legally. See Pope, 910 F.3d at 416–17.\nSykes's argument therefore fails.\n\n We also note that Sykes appears to raise a Second Amendment challenge to\n§ 724.4(1) in his reply brief. Because he failed to raise the argument in his opening\nbrief, we decline to address it. See id. at 417.\n\n We turn now to Sykes's sentence. Under USSG § 2K2.1(a), the base offense\nlevel of a person convicted of being a felon in possession of a firearm increases if he\nhas previously been convicted of a crime of violence. A \"crime of violence\" is\ndefined, in relevant part, as a federal or state offense that \"has as an element the use,\nattempted use, or threatened use of physical force against the person of another.\"\n\n -5-\n\fUSSG § 4B1.2(a)(1). Sykes argues that the district court erred when it deemed his\nprior Illinois conviction for aggravated vehicular hijacking a crime of violence. See\nUSSG § 2K2.1(a)(4)(A). We review de novo the district court's designation of a prior\nconviction as a crime of violence. United States v. Williams, 899 F.3d 659, 662 (8th\nCir. 2018).\n\n Sykes was convicted of aggravated vehicular hijacking because, while armed\nwith a firearm, he \"knowingly t[ook] a motor vehicle from the person or the\nimmediate presence of another by the use of force or by threatening the imminent use\nof force.\" 720 Ill. Comp. Stat. 5/18–3(a), –4(a)(4). Though the definition of this crime\nexplicitly requires the actual or threatened use of force, Sykes maintains that the crime\nstill does not have \"as an element the use, attempted use, or threatened use of physical\nforce against the person of another\" because it does not require, as it must, \"force\ncapable of causing physical pain or injury.\" See Johnson v. United States, 559 U.S.\n133, 140 (2010).\n\n To make his point, Sykes invites us to consider Illinois robbery, which similarly\nrequires the taking of property \"by the use of force or by threatening the imminent use\nof force.\" See 720 Ill. Comp. Stat. 5/18–1(a). Indeed, Illinois courts have explained\nthat the robbery and vehicular-hijacking statutes are \"so similar that vehicular\nhijacking could be fairly described, for all practical purposes, as robbery of a specific\nkind of property, a motor vehicle,\" and \"[g]iven the similarity in language,\" Illinois\ncourts have \"analogized to the robbery statute when interpreting the vehicular\nhijacking statute.\" People v. Jackson, 65 N.E.3d 550, 559 (Ill. App. Ct. 2016). Sykes\nthen argues that one can commit robbery in Illinois with nonviolent force, and he\npurports to identify cases in which those convicted of Illinois robbery did not use\nviolent force. For example, he points to People v. Taylor, 541 N.E.2d 677, 678 (Ill.\n1989), which involved a robbery conviction where the defendant snatched a necklace\noff the victim's neck, and People v. Merchant, 836 N.E.2d 820, 821 (Ill. App. Ct.\n\n\n\n -6-\n\f2005), where someone was convicted of robbery after \"tussling on the sidewalk\" with\nthe victim over money.\n\n The Supreme Court's recent decision in Stokeling v. United States, No.\n17–5554, 2019 WL 189343 (Jan. 15, 2019), forecloses Sykes's argument. In Stokeling,\nthe Court considered whether a Florida robbery conviction constituted a violent felony\nunder the Armed Career Criminal Act. The relevant definition of a violent felony\nunder the ACCA and the definition of a crime of violence under the Guidelines are so\nsimilar that we generally consider cases interpreting them \"interchangeably.\" See Boaz\nv. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018). The Stokeling Court held that\nthe ACCA intended common-law robberies to be violent felonies even though\ncommon-law robbery required only sufficient force to overcome a victim's\nresistance, \"however slight the resistance.\" 2019 WL 189343, at 4. Courts in Florida,\nand in most states for that matter, had subscribed to this common-law notion of force,\nand the Court \"declined to construe the statute in a way that would render it\ninapplicable in many States.\" Id., at 5–6.\n\n Illinois's definition of robbery fits the common-law mold. As in Florida, one\ncommits robbery in Illinois when he uses force sufficient to overcome a victim's\nresistance, however slight. See Taylor, 541 N.E.2d at 679–80. As in Florida, one does\nnot commit robbery in Illinois when he snatches property from the person of another\nif the force involved was \"seemingly imperceptible to the victim.\" People v. Bowel,\n488 N.E.2d 995, 997–98 (Ill. 1986); see also Stokeling, 2019 WL 189343, at 9.\nFlorida and Illinois appear to draw the same line between robbery, which requires\nforce, and less serious crimes like theft or larceny, which don't. And as the Court\nexplained in Stokeling, though in some cases only slight force is necessary to\novercome a victim's resistance, such force \"is inherently 'violent' in the sense\ncontemplated by Johnson\" and capable of causing physical pain or injury because it\n\"necessarily involves a physical confrontation and struggle.\" See Stokeling, 2019 WL\n189343, at 7. Since the Supreme Court has held that common-law robbery \"has as\n\n -7-\n\fan element the use, attempted use, or threatened use of physical force against the\nperson of another,\" and Illinois adheres to the common-law definition of robbery, we\nreject Sykes's argument.\n\n Sykes also points to a case called In re Thomas T., 63 N.E.3d 284, 287–88 (Ill.\nApp. Ct. 2016) to argue that Illinois courts define \"force\" in the vehicular-hijacking\ncontext as \"power, violence, compulsion, or constraint exerted upon or against a\nperson or thing\"—a definition he maintains does not require violent force. Even if the\nThomas T. court actually adopted such a definition, a matter we need not decide,\nThomas T. involved vehicular invasion, a wholly different crime. See 720 Ill. Comp.\nStat. 5/18–6. Illinois courts have distinguished vehicular invasion from vehicular\nhijacking by the amount of force each requires: A person can \"commit the offense of\nvehicular invasion without the use of physical force or violence against an individual,\"\nPeople v. McDaniel, No. 1-13-2679, 2015 WL 6460052, at *9–10 (Ill. App. Ct. Dec.\n14, 2015) (unpublished), but an Illinois court could not \"conceive of[] a situation in\nwhich a defendant could commit vehicular hijacking without using or threatening the\nuse of physical force or violence.\" People v. Wooden, 16 N.E.3d 850, 855 (Ill. App.\nCt. 2014). We therefore see no error here.\n\n Affirmed.\n ______________________________\n\n\n\n\n -8-\n[END_CASE]", "role": "user" } ]
4,585,823	FIRST STATE BANK OF ROSCOE; John R. Beyers, Appellants v. Brad Allen STABLER; Brenda Lee Stabler, Appellees	First State Bank of Roscoe v. Brad Allen Stabler	2019-01-30	17-1904	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Melloy, Grasz", "parties": "", "opinions": [{"author": "MELLOY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1904\n ___________________________\n\n First State Bank of Roscoe; John R. Beyers\n\n lllllllllllllllllllllAppellants\n\n v.\n\n Brad Allen Stabler; Brenda Lee Stabler\n\n lllllllllllllllllllllAppellees\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: May 16, 2018\n Filed: January 30, 2019\n ____________\n\nBefore SHEPHERD, MELLOY, and GRASZ, Circuit Judges.\n ____________\n\nMELLOY, Circuit Judge.\n\n First State Bank of Roscoe (the “Bank”) and John R. Beyers appeal the\njudgment of the district court1 affirming a bankruptcy court order holding them in\n\n 1\n The Honorable Roberto A. Lange, United States District Judge for the District\nof South Dakota, affirming the order of the Honorable Charles L. Nail, Jr., United\nStates Bankruptcy Judge for the District of South Dakota.\n\fcontempt and sanctioning them for violating a final bankruptcy discharge injunction.\nThe Bank and Beyers argue on appeal that an earlier bankruptcy court order and\nrelated state-court judgments have preclusive effect and bar the current contempt\norder. They also argue that even if preclusion doctrines do not otherwise bar relief,\nthey held a good faith belief that prevailing law permitted their conduct such that\nsanctions are inappropriate. We affirm.\n\n I.\n\n Brad and Brenda Stabler (the “Stablers”) borrowed from the Bank to fund an\nagricultural services business. Beyers was a principal at the Bank. When the\nStablers’ business failed, the Stablers liquidated their business, and Beyers counseled\nthem to seek bankruptcy protection. In the bankruptcy, the Stablers’ attorney (whom\nBeyers recommended to the Stablers and who previously served as attorney for the\nBank) failed to list all debt owed by the Stablers to the Bank. The Stablers owed the\nBank over $600,000, but the bankruptcy schedules listed the Bank as a secured\ncreditor claiming much less than that amount. In addition to personal loan guarantees\nfrom the Stablers, the Bank held priority liens against the Stablers’ land and farm\nmachinery as well as a lien on land owned by Brad Stabler’s parents. It is undisputed\nthat the liens, in total, were insufficient to secure fully the Stablers’ pre-bankruptcy\nindebtedness to the Bank.\n\n After the Stablers received their bankruptcy discharge, the Bank continued to\nhold security interests on the Stablers’ land and equipment and on Brad’s parents’\nland. Rather than foreclosing on this collateral (and realizing a substantial loss), the\nBank and Beyers obtained from the Stablers and Brad’s parents a commitment to pay\na new $650,000 note, an amount substantially in excess of the security interests that\nhad survived bankruptcy. The Bank and Beyers obtained this commitment without\ncourt approval and through a series of transactions and debt transfers involving third\nparties. Specifically, the four Stablers became obligated on a $416,000 note to a\n\n -2-\n\fpartnership named Schurrs, a $213,000 note to Roger Ernst, and a $21,000 note to a\ncompany named H&K Acres. These three other parties had relationships with Beyers\nor the Bank and received from the Bank assignments of security interests.\nEventually, the Stablers paid off the $21,000 note, and Beyers received the other\nnotes and related security interests by assignment. Later, acting as a guarantor,\nBeyers helped the Stablers obtain a $150,000 loan from Ipswich State Bank\n(“Ipswich” and “Ipswich Note”) secured by the Stablers’ property. The Stablers used\nthis additional $150,000 to pay the Bank, but the parties dispute whether this payment\nto the Bank was for discharged debt or post-discharge debt. Eventually, Beyers\nobtained assignment of the Ipswich Note and related security interests from Ipswich.\n\n Next, the Stablers fell behind on their payments, and the Bank and Beyers\ncommenced collection efforts. In response, the Stablers and Brad Stabler’s parents\ninitiated a state-court action seeking a determination of what they owed the various\nlenders. In the state-court action, they alleged the post-bankruptcy commitments\nwere unenforceable improper reaffirmations of discharged debt. They also alleged\nclaims of fraud, breach of fiduciary duty, and conspiracy, asserting the Bank and\nBeyers knew the debt refinanced with the $650,000 note had been discharged but\nmisrepresented that the discharged amounts were still owed.\n\n The Bank and Beyers asserted four counterclaims. They argued that\nforbearance from foreclosing on the security interests that had survived discharge\nserved as permissible consideration for new security interests and repayment\ncommitments. Based on these arguments, Beyers and the Bank asserted that the\nreaffirmed debt was enforceable. Beyers and the Bank invited the state court to\ndetermine what debt had and had not been discharged in bankruptcy, and they\ncharacterized their enforcement efforts as relating only to debt that the state court\nmight determine not to have been discharged. In fact, in their state court\ncounterclaims, Beyers and the Bank indicated they were seeking to collect only on\nnon-discharged debt.\n\n -3-\n\f Looking specifically at the Bank and Beyers’s counterclaims, Counterclaims\n1 and 2 sought to collect on the Ipswich Note and foreclose on the collateral for that\nloan. Counterclaims 3 and 4 involved the $650,000 note that was approximately\nequal in amount to what the Stablers owed Beyers and the Bank prior to bankruptcy.\n\n Beyers and the Bank moved for summary judgment on Counterclaims 1 and 2.\nAfter Beyers and the Bank filed their motion for summary judgment in the state court,\nbut before the state court had ruled on the motion, the Stablers filed an adversary\ncomplaint in the bankruptcy court (a complaint the parties later conceded could be\ndeemed a motion for sanctions) seeking contempt sanctions against Beyers and the\nBank and alleging violation of the discharge injunction. The state court then granted\nsummary judgment to the Bank and Beyers on Counterclaims 1 and 2, holding the\nStablers had entered into the Ipswich Note after bankruptcy and had used the\nproceeds to pay off security interests that survived bankruptcy. The state court held\nthe Stablers were in default on the Ipswich Note such that Beyers could foreclose on\nthat loan’s collateral.\n\n After the state court granted summary judgment on Counterclaims 1 and 2, the\nBank and Beyers moved to dismiss the adversary complaint. In ruling on the motion\nto dismiss, the bankruptcy court entered an order with two seemingly inconsistent\nholdings. Looking at the Bank and Beyers’s state-court pleadings in which those\nparties limited their request for relief to debt that had not been discharged, the\nbankruptcy court indicated that it appeared the Bank and Beyers were seeking relief\nrelated solely to permissible loans and not related to impermissible reaffirmations of\ndischarged debts. The bankruptcy court also indicated that the state-court grant of\nsummary judgment regarding Counterclaims 1 and 2 (the counts concerning the\nIpswich Note) appeared to have preclusive effect. Based on these observations, the\nbankruptcy court appeared to grant the motion to dismiss for failure to state a claim.\n\n\n\n\n -4-\n\f The bankruptcy court also held, however, that the state court possessed\njurisdiction and authority to make discharge determinations. As such, the bankruptcy\ncourt expressly abstained from ruling on the motion to dismiss and noted that the\nStablers could return to the bankruptcy court if the state court were to determine the\nBank or Beyers had impermissibly attempted to collect discharged debt. In reaching\nthis determination, the bankruptcy court expressed skepticism that the Stablers might\nachieve any such result in state court. Nevertheless, the bankruptcy court abstained\nand expressly left open the possibility of the Stablers later returning to the bankruptcy\ncourt.\n\n The Stablers appealed to the Bankruptcy Appellate Panel (“BAP”) as to both\nissues, and the BAP affirmed. Stabler v. Beyers (In re Stabler), 418 B.R. 764, 766\nn.2, 769–71 (B.A.P. 8th Cir. 2009). The BAP, however, addressed only the issue of\nabstention. No party sought from the BAP further analysis or explanation as to the\nbankruptcy court’s apparent granting of the motion to dismiss on the merits.\n\n Meanwhile, the state-court action proceeded. The state court granted summary\njudgment for the Stablers on Counterclaims 3 and 4 and reversed its own earlier grant\nof summary judgment to Beyers and the Bank on Counterclaims 1 and 2. As to\nCounterclaims 3 and 4, the state court determined the $650,000 note was an\nunenforceable reaffirmation of discharged debt. The court found Beyers had\n“concocted a transaction” involving third parties for the purposes of recreating\ndischarged debt. The court also found Beyers did so without good faith and in an\neffort to overcome the bankruptcy discharge. These determinations also led the court\nto conclude that a question of material fact existed as to whether Beyers could enforce\nthe Ipswich Note at issue in Counterclaims 1 and 2.\n\n Prior to trial, the Stablers dropped their fraud claim and elected to seek\nrescission of the $650,000 note. The Stablers’ attorney indicated at the state-court\npretrial hearing that they would seek attorney fees in bankruptcy court rather than in\n\n -5-\n\fstate court. Issues remaining for trial, therefore, included the Stablers’ claim for\nrescission of the $650,000 note, the enforceability of the Ipswich Note, and a fraud\nclaim asserted by Brad’s parents. In their fraud claim, Brad’s parents alleged Beyers\nobtained their signature on the $650,000 note by falsely misrepresenting to them that\nBrad owed much of the debt underlying that note even though it had been discharged\nin bankruptcy. Brad’s parents’ claim was tried to a jury. The Stablers’ rescission\nclaim and Counterclaims 1 and 2 were tried to a judge.\n\n The jury returned a special verdict in Brad’s parents’ case, finding that\n$439,100 of the $650,000 note was obtained by fraud.\n\n In the bench trial, the court entered a written order describing in detail its\nfindings as to the events that led the Stablers to enter into the $650,000 post-\ndischarge note. After introducing the parties and the initial debts, the court stated:\n\n Things did not go well with [the Stablers’ business]. [The\n business] was being sued by various parties. John Beyers assessed the\n situation and realized that [the business] was doomed. More\n importantly, John Beyers realized that if the litigation was allowed to\n proceed, those other parties were going to obtain judgments against [the\n business]. Beyers realized that [the business] did not have sufficient\n assets to cover all of its liabilities and was essentially bankrupt. Being\n an astute and experienced businessman, Beyers saw the natural\n progression. Unless he took action, [the business] eventually would be\n forced into bankruptcy. He realized that [the Bank] was under-secured\n on the loans to Brad and Brenda Stabler and [the business]. In order to\n protect [the Bank’s] interests, Beyer[s] arranged for Brad and Brenda\n Stabler to meet with Attorney Rob Ronayne about filing for bankruptcy.\n\n The evidence establishes that this bankruptcy was not Brad or\n Brenda’s idea. This idea was solely that of John Beyers. John Beyers\n decided that Brad and Brenda Stabler should file bankruptcy. John\n Beyers personally decided who Brad and Brenda Stabler should use as\n\n\n -6-\n\ftheir bankruptcy attorney—Rob Ronayne. Rob Ronayne is an\nexperienced bankruptcy attorney. Rob Ronayne also regularly served\nas an attorney for [the Bank]. John Beyers also knew this. John Beyers\nconvinced Brad and Brenda Stabler that he was acting in their best\ninterests. He was not and knew it. I find and conclude that John\nBeyers’[s] intention was to protect the financial interests of [the Bank].\n\n John Beyers owns [the Bank]. John Beyers knew that if the\nlawsuits were allowed to proceed, [the business] and Brad and Brenda\nStabler would eventually end up filing for bankruptcy. By maintaining\ntheir trust, encouraging them to file bankruptcy, and selecting their\nbankruptcy attorney, Beyers believed that he could control the situation\nso that the debts of other creditors could be discharged while the\nobligations to [the Bank] could be maintained or reassumed. Over the\ncourse of the next year, this is exactly what John Beyers and [the Bank]\naccomplished.\n\n Brad and Brenda Stabler filed for and received discharge from\nbankruptcy court. The discharge eliminated Brad’s personal guarantee\nof [the business] debt. [The Bank] still held security interests in Brad\nand Brenda Stabler’s farm and machinery because such secured interests\nare not discharged by bankruptcy. [The Bank] still held a security\ninterest worth approximately $110,000 over a quarter section parcel of\nland owned by [Brad’s parents]. [The Bank] could have foreclosed on\nthat quarter of land to recover on that debt. [The Bank] could have\nforeclosed on Brad and Brenda’s land and other secured property. This\ncourse of action would have resulted in a significant shortfall for [the\nBank]. [The Bank] would have recovered some money but would have\ntaken a significant loss on the various loans of Brad and Brenda and [the\nbusiness]. More importantly, [the Bank] would have had no further\nrecourse against any of the Stablers. John Beyers understood this.\n\n Instead of accepting such a loss, John Beyers devised a scheme\nthrough which he would convince Brad and Brenda Stabler to continue\npaying on their discharged debt. Alone, this would be practically\nuseless because Brad and Brenda clearly did not have the resources to\nservice the reaffirmed debt. It was only a matter of time before they\n\n -7-\n\f would default. John Beyers’[s] scheme included a plan to improve [the\n Bank’s] security interests by convincing [Brad’s parents] to sign\n increasingly larger mortgages to their entire farm in order to secure the\n debt of Brad and Brenda. This is exactly what transpired. As found by\n the jury and by this Court, $43[9,1]00 of the value of those mortgages\n was obtained by fraud on the part of John Beyers and [the Bank].\n\nStablers v. First State Bank of Roscoe, et al., Civ. No. 07-11 (S.D. Cir. July 8, 2013)\n(Memorandum Decision following court trial).\n\n The state trial court concluded that Beyers had coerced Brad and Brenda into\nreaffirming their debt and that “[t]his type of behavior is exactly what the\n‘reaffirmation process’ is intended to protect against.” Id. at n.2. The court granted\nthe Stablers’ rescission of the $650,000 note, awarding the Stablers $142,908.27.\nFinally, the court described Beyers’s behavior surrounding the Ipswich Note as\ndishonest and manipulative, but concluded Beyers could enforce that particular loan\nagainst the Stablers. On appeal, the South Dakota Supreme Court affirmed. Stabler\nv. First State Bank of Roscoe, 865 N.W.2d 466, 469 (S.D. 2015).\n\n After the state appeal became final, the Stablers, as envisioned by the\nbankruptcy court and consistent with the Stablers’ expressly declared intent in the\nstate court, returned to the bankruptcy court. The Stablers sought attorney fees and\na contempt sanction for violation of the discharge injunction. The Bank and Beyers\nargued the bankruptcy court’s earlier order was res judicata and precluded any\nbankruptcy court sanction. The Bank and Beyers also argued the Stablers’ failure to\nsecure fees or sanctions in state court precluded any sanction order from the\nbankruptcy court. Finally, they argued sanctions were inappropriate because they had\nrelied in good faith upon cases appearing to permit reaffirmations outside of\nbankruptcy in exchange for forbearance in foreclosing upon a security interest. The\nbankruptcy court rejected the Bank and Beyers’s arguments and sanctioned each\n$25,000. And, in an extensive and careful analysis rejecting many claimed fees but\n\n -8-\n\fawarding others, the bankruptcy court imposed upon the Bank and Beyers joint and\nseveral liability for $ 159,605.77 in attorney fees. The Bank and Beyers appealed to\nthe district court, which affirmed.\n\n II.\n\n As a second reviewing court, we apply the same standards as the district court\nin our review of the bankruptcy court’s order. See Contractors, Laborers, Teamsters\n& Eng’rs Health and Welfare Plan v. Killips (In re M & S Grading, Inc.), 526 F.3d\n363, 367 (8th Cir. 2008). We generally review factual determinations for clear error\nand interpretations of law de novo. Id. In the absence of errors at law or clearly\nerroneous factual determinations, we review a sanctions award, including an award\nof attorney fees, for an abuse of discretion. See Williams v. King (In re King), 744\nF.3d 565, 570 (8th Cir. 2014) (“The bankruptcy court was perfectly within its\ndiscretion to impose the sanction.”). Appellants do not challenge the actual amounts\nof the sanction or fee award. Rather, they challenge the propriety of any award,\npresenting somewhat overlapping legal arguments addressing preclusion and their\nalleged good faith beliefs concerning the state of the law at the time they filed their\ncounterclaims. We address their arguments in turn.\n\n A. Preclusive Effect of the Bankruptcy Court’s Abstention Ruling and of\n the Stablers’ Failure to Seek Sanctions or Punitive Damages in State\n Court.\n\n Our court employs a flexible and pragmatic approach when assessing the\npreclusive effect of a court’s order. See, e.g., John Morrell & Co. v. Local Union\n304A, United Food & Commercial Workers, 913 F.2d 544, 563–64 (8th Cir.1990)\n(noting that finality in the context of issue preclusion may be satisfied where the\nlitigation has reached such a stage that the “court sees no really good reason for\npermitting it to be litigated again” (citation omitted)). And when assessing the\n\n\n -9-\n\fpreclusive effect of a state court judgment, we apply that state’s law governing\npreclusion. See Finstad v. Beresford Bancorporation, Inc., 831 F.3d 1009, 1013 (8th\nCir. 2016). Like our court, South Dakota applies a practical analysis, looking at the\nparties’ roles and actions in the underlying proceeding. See Am. Family Ins. Grp. v.\nRobnik, 787 N.W.2d 768, 775–76 (S.D. 2010) (considering the practical dynamics\nof an underlying action to determine whether there had been “a full and fair\nopportunity to litigate the issues in the prior proceeding,” and taking into\nconsideration facts such as (1) the alignment of interests between an insured and an\ninsurer providing a defense under a reservation of rights and (2) the relevancy of\nlater-raised issues during the earlier proceeding). Consistent with this pragmatic\napproach, we recognize that bankruptcy courts and state trial courts operate within\na framework governed not only by law and procedure, but also by the informed\nchoices that the parties make as expressed clearly to the court and to one another. As\nsuch, and in general, we do not make preclusion determinations in the abstract or in\na vacuum. Rather, we look to see what the underlying court actually said and what\nthe parties communicated to one another and to the court about what they understood\nto be at issue in the underlying proceeding.\n\n Here, when the bankruptcy court ruled on Appellants’ abstention request, the\nbankruptcy court expressly acknowledged that the state court possessed the authority\nto make discharge determinations and to assess the true scope of what Appellants\nwere actually seeking through their counterclaims. The bankruptcy court was correct\nin this regard, and no party in the present case actually challenges this ruling. See\nApex Oil Co. v. Sparks (In re Apex Oil Co.), 406 F.3d 538, 542 (8th Cir. 2005)\n(discussing 28 U.S.C. § 1334(b), holding that a state court could rule on\ndischargeability issues, and noting that “Congress granted state courts concurrent\njurisdiction to consider bankruptcy issues arising from Chapter 11 proceedings”).\nThe bankruptcy court expressed skepticism as to the merits of the Stablers’\narguments, but invited the Stablers to return if the state court were to resolve\ndischarge issues in their favor. Simply put, the bankruptcy court did not purport to\n\n -10-\n\fabstain permanently. It is obvious to our Court that the bankruptcy court did not\nbelieve itself to be issuing a ruling that would have preclusive effect.2\n\n Then, in state court, counsel for the Stablers stated in a pretrial hearing that the\nStablers were dropping their fraud claim and their demand for attorney fees and\nelecting to pursue in the state-court trial the remedy of rescission of the $650,000\nnote.3 At that hearing, and in briefing that preceded the hearing, counsel\ncommunicated clearly to the court and to Appellants that, as per the bankruptcy\ncourt’s invitation, the Stablers still intended to return to bankruptcy court. There is\nno indication that Appellants contested or objected to this clearly expressed intention\nand proposed course of action. Now, by asserting that the earlier abstention ruling\nor the failure to pursue sanctions and fees in state court precludes a return to\nbankruptcy court, the Appellants essentially seek to treat the state-court election of\nremedies as a “gotcha” moment. The time to object to the Stablers’ proposed course\nof action, however, was at the hearing where the course of action was proposed.\nAppellants’ failure to object, coupled with their later challenge to the Stablers’ return\nto the bankruptcy court, amounts to an attempt to deprive the Stablers of “a full and\nfair opportunity to litigate the issues.” Robnik, 787 N.W.2d at 775. We will not\napply our circuit’s or South Dakota’s pragmatic approach to preclusion analysis in a\n\n\n 2\n The bankruptcy court stated:\n\n I believe it would be possible, even preferable, to sever debtors’ state\n court claims, allow the state court to determine, as it already has with\n respect to count one of Beyers’[s] state court counterclaim, whether any\n of the debts Beyers is seeking to collect have been discharged. And if\n the state court determines, albeit contrary to the express language of\n counts three and four of Beyers’[s] state court counterclaim, any of those\n debts have been discharged, allow debtors to renew their complaint.\n 3\n Brad’s parents did not drop their fraud claim, resulting in their trial of legal\nissues to a jury rather than to the bench as with the Stablers’ rescission claim.\n\n -11-\n\fmanner that thwarts such clearly expressed intentions or rewards Appellants’ election\nto remain silent in the face of the Stablers’ proposal.\n\n Appellants, ignoring this nuance, argue in their brief that “the [b]ankruptcy\ncourt did not qualify or limit the scope of its abstention in any way.” It is true that\nthe bankruptcy court dismissed the adversary complaint rather than staying the case.\nStill, Appellants’ assertions flatly ignore the balance of the bankruptcy court record\nin which the bankruptcy court: (1) expressly invited the Stablers to return to\nbankruptcy court depending upon the outcome of the state-court proceedings; and (2)\nlater clarified its own order by accepting the case again. See, e.g., United States v.\nMaull, 855 F.2d 514, 516–17 (8th Cir. 1988) (holding that a lower court’s later order\n“effectively clarified the ambiguity in its earlier order and ‘rebutted the presumption\nof finality created by Rule 41(b)’” (quoting Knox v. Lichtenstein, 654 F.2d 19, 22\n(8th Cir. 1981))).\n\n Appellants also argue strenuously that our opinion in Apex Oil Company, Inc.\nv. Sparks, 406 F.3d 538, 542 (8th Cir. 2005), somehow precludes the Stabler’s from\nreturning to the bankruptcy court after the state court entered its judgment. In Apex,\nwe held that state courts hold concurrent jurisdiction to make discharge\ndeterminations. Apex, however, did not address the question of a state court’s\nauthority to issue sanctions for violation of a bankruptcy discharge. In Apex,\nhomeowners sued a bankrupt debtor in state court alleging the debtor had allowed a\nplume of gasoline and other petroleum products to form under their homes thus\ndecreasing their property values and risking their health. Id. at 540–41. The debtor,\nwho had already passed through bankruptcy, moved the bankruptcy court to reopen\nthe bankruptcy arguing the plume-related claim had arisen prior to bankruptcy and\nwas barred by the discharge injunction even though the homeowners had not filed a\nclaim in the bankruptcy. Id. at 541. The debtor sought enforcement of the discharge\ninjunction against the homeowners, an order holding the homeowners in contempt for\nviolating the discharge injunction, and an order directing the homeowners to dismiss\n\n -12-\n\ftheir claims. Id. The bankruptcy court refused to reopen the case. Id. We affirmed,\nholding 28 U.S.C. § 1334(b) granted state courts concurrent jurisdiction, Apex, 406\nF.3d at 542, and finding the state court “fully competent to determine whether the\nplan and the injunction apply to the [homeowners’ ] claims.” Id. at 543.\n\n Even assuming that Apex could be extended to stand for the proposition that\nthe state court is empowered to order contempt sanctions and impose attorney fees\nindependent from a state law cause of action, it certainly cannot be extended to\npreclude the bankruptcy court’s actions in this case. Apex held merely that a\nbankruptcy court did not abuse its discretion in refusing to reopen a case. Apex did\nnot purport to disempower the bankruptcy court, which, of course, possesses\njurisdiction to enforce its own orders. See, e.g., Koehler v. Grant, 213 B.R. 567,\n569–70 (B.A.P. 8th Cir. 1997).\n\n B. Law of the Case/Preclusive Effect of the Bankruptcy Court’s Alternative\n “Holding”\n\n As noted, the bankruptcy court’s first post-discharge order contained seeming\ninconsistencies. That court appeared to grant the Appellants’ motion to dismiss on\nthe merits and also expressly abstained from ruling on the motion. Appellants now\nargue the bankruptcy court’s initial order appearing to grant their motion to dismiss\nis the “law of the case” and should preclude the later sanction order. We reject their\nargument for two reasons.\n\n First, if a ruling contains a decision to abstain or a decision concerning the\ncourt’s power to decide the case, any purported resolution of the merits generally\nshould be of no effect. See, e.g., Remus Joint Venture v. McAnally, 116 F.3d 180,\n184 n.5 (6th Cir. 1997) (“[W]hen a . . . ruling rests on alternative grounds, at least one\nof which is based on the inability of the court to reach the merits, the judgment should\nnot act as a bar in a future action.”); 18 Charles Alan Wright et al., Federal Practice\n\n\n -13-\n\fand Procedure § 4421 (3d ed. 2018) (“If a first decision is supported both by findings\nthat deny the power of the court to decide the case on the merits and by findings that\ngo to the merits, preclusion is inappropriate as to the findings on the merits.”). The\npurported resolution of issues on the merits is, for all intents and purposes, a nullity\nin light of the court’s express election to abstain. See Disher v. Info. Res., Inc., 873\nF.2d 136, 140 (7th Cir. 1989) (“A dismissal based on the district court’s relinquishing\nits pendent jurisdiction deprives any ruling that he may have made on the merits of\na relinquished claim of preclusive effect.”).\n\n Second, the BAP in this matter affirmed the bankruptcy court on abstention\ngrounds and did not address the motion to dismiss on the merits. When an appeals\ncourt decides the case before it on only one of multiple grounds presented for review,\nthose grounds decided below and not addressed by the appeals court generally do not\ncarry preclusive effect in future proceedings. See Fairbrook Leasing, Inc. v. Mesaba\nAviation, Inc., 519 F.3d 421, 425 (8th Cir. 2008) (“As the district court’s decision\nwas based on alternative grounds, the preclusive effect of the summary judgment we\naffirmed in Fairbrook I must be determined by examining our opinion, not the district\ncourt’s Order.”); Mandich v. Watters, 970 F.2d 462, 465 (8th Cir. 1992) (“The\ngeneral rule is that, ‘if a judgment is appealed, collateral estoppel only works as to\nthose issues specifically passed upon by the appellate court.’” (quoting Hicks v.\nQuaker Oats Co., 662 F.2d 1158, 1168 (5th Cir. 1981))).\n\n Consistent with our pragmatic approach to analyzing preclusion, these two\n“rules,” while seemingly clear, should by no means be considered absolute. Still, we\nconclude the bankruptcy court’s initial statement as to the merits is best understood\nas a statement of skepticism concerning the Stablers’ position coupled with an\nelection to let the state court entertain the merits. Those comments, in light of the\nbankruptcy court’s express abstention, do not establish the law of the case or preclude\na later ruling on the merits.\n\n\n\n -14-\n\f C. State of Law Regarding Reaffirmation as Material to the Question of the\n Bank and Beyers’s Good Faith Argument.\n\n “A reaffirmation agreement is one in which the debtor agrees to repay all or\npart of a dischargeable debt after a bankruptcy petition has been filed.” Venture Bank\nv. Lapides, 800 F.3d 442, 445 (8th Cir. 2015) (quoting In re Duke, 79 F.3d 43, 44\n(7th Cir. 1996)). In general, reaffirmation agreements are unenforceable unless they\nare (1) “made before the granting of the discharge”; (2) “made after the debtor\nreceived disclosures as described in [§ 524(k)]”; and (3) “filed with the court.” 11\nU.S.C. § 524(c). Congress imposed these requirements “to . . . safeguard[] debtors\nagainst unsound or unduly pressured judgments about whether to attempt to repay\ndischargeable debts.” Venture Bank, 800 F.3d at 446 (alteration in original) (quoting\nIn re Jamo, 283 F.3d 392, 398 (1st Cir. 2002)). Debtors, of course, are free to\nvoluntarily repay a creditor. See 11 U.S.C. § 524(f) (stating that discharge does not\n“prevent[] a debtor from voluntarily repaying any debt”). But, when assessing the\nvoluntariness of the debtor’s actions, we consider the creditors’ use of pressure and\ncoercion and its impact on the debtor. And, when assessing the particular actions\nalleged to be in violation of the discharge—in this case the filing of the\ncounterclaims—we cannot separate those actions and view them in isolation. Rather,\n“[t]he ‘coerciveness’ involved in each case must be assessed on its particular facts.”\nVenture Bank, 800 F.3d at 448 (quoting In re Pratt, 462 F.3d 14, 20 (1st Cir. 2006)).\n\n Sanctions are available for a willful violation of a discharge injunction. See\nWalton v. LeBarge (In re Clark), 223 F.3d 859, 864 (8th Cir. 2000) (“[11 U.S.C. §]\n105[(a)] gives to bankruptcy courts the broad power to implement the provisions of\nthe bankruptcy code and to prevent an abuse of the bankruptcy process, which\nincludes the power to sanction counsel.”). Sanctions generally should be unavailable\nwhere a creditor acts without knowledge of the injunction or in good faith reliance\non the belief that their actions are permissible. See, e.g., Everly v. 4745 Second\nAve., Ltd. (In re Everly), 346 B.R. 791, 797–98 (B.A.P. 8th Cir. 2006) (“[A]s long\n\n\n -15-\n\fas a creditor has a good faith basis for believing that its debt was excepted from\ndischarge or, as in this case, had no knowledge of any such discharge, the creditor is\nnot subject to sanctions for violating the discharge injunction when it proceeds in\nstate court.”); but see Taggart v. Lorenzen, 888 F.3d 438 (9th Cir. 2018), cert.\ngranted, 2019 WL 98543 (U.S. Jan. 4, 2019) (granting certiorari regarding whether\na creditor’s good-faith beliefs may preclude a finding of civil contempt for discharge\ninjunction violation). Here, Appellants argue they acted in good faith when seeking\na determination from the state court as to what portion of the debt had not been\ndischarged. In particular, they argue that, at the time they filed their counterclaims\nin state court, they acted in good faith because the law was unclear regarding the\npermissibility of obtaining a new commitment from a bankrupt debtor after discharge\nbased upon a secured lender’s forbearance in foreclosing on a security interest.4\n\n To support their good-faith argument, Appellants cite several lower court cases\nthey characterize as permitting a lienholder and a bankrupt debtor to treat forbearance\nsurrounding a surviving lien as new and sufficient consideration for new debt. See\nWatson v. Shandell (In re Watson), 192 B.R. 739, 748 (B.A.P. 9th Cir. 1996); Shields\nv. Stangler (In re Stangler), 186 B.R. 460, 463–64 (Bankr. D. Minn. 1995); Minster\nState Bank v. Heirholzer (In re Heirholzer), 170 B.R. 938, 941 (Bankr. N.D. Ohio\n1994); In re Petersen, 110 B.R. 946, 950 (Bankr. D. Colo. 1990); Button v. Sheridan\nOil Co. (In re Button), 18 B.R. 171, 172 (Bankr. W.D.N.Y. 1982). They also argue\nthat the bankruptcy court’s initial statements in this case voicing skepticism at the\nStablers’ position further demonstrate the reasonableness of their own view regarding\nthe permissibility and enforceability of the new loan. Neither argument can succeed.\n\n\n\n\n 4\n The law in our circuit is now clear that “a secured creditor’s post-discharge\nforbearance is not sufficient to take a reaffirmation agreement outside the purview of\n§ 524(c).” Venture Bank, 800 F.3d at 447. The events in this case, however,\npredated Venture Bank.\n\n -16-\n\f The authority Appellants purport to have relied upon at the time they filed their\ncounterclaims establishes, at most, that, in limited circumstances, post-discharge\nforbearance may serve as consideration for a new commitment to repay the present\nvalue of the lien—an amount a bankruptcy court might have found permissible if\npresented to the court prior to discharge. See, e.g., In re Stangler, 186 B.R. at 463\n(indicating reaffirmation based upon lienholder’s forbearance was permissible as\nrelated to the present value of the surviving lien). None of Appellants’ cases suggest\na lienholder could leverage a security interest to obtain a larger repayment\ncommitment, much less a larger commitment representing a discharged personal debt.\nThe absence of authority to support Appellants’ position is unsurprising given the\nclarity of § 524(c)’s purposes and its express requirements. Moreover, the South\nDakota Supreme Court in its review of the state court trial in this matter agreed\nemphatically and noted the absence of any evidence suggesting Appellants had\nattempted to place a current value on the surviving lien. See Stabler, 865 N.W.2d at\n478. That court stated:\n\n We do not think the law is so unclear as to render Defendants unaware\n of its application to Defendants’ conduct. . . . Any claim by Beyers that\n the consideration to forego foreclosure on liens that passed through\n bankruptcy is new consideration to which [§ 524(c)] does not apply is\n unconvincing in the context of this case. There is no indication that any\n sort of valuation was done on the liens that survived bankruptcy.\n Instead, Defendants sought out Stablers to renew all obligations that\n they owed prior to the bankruptcy, in the same form and amount that\n Brad and Brenda personally owed pre-bankruptcy. We see no attempt by\n Defendants to enter into an entirely new arrangement based on the value\n of the surviving liens. Nor is the mere continuing of a banking\n relationship sufficient to fulfill the statutory provisions regarding\n reaffirmation, and Defendants cite no authority for such a proposition.\n\nId. (emphasis added).\n\n\n\n -17-\n\f Finally, although Appellants nominally purported to seek in state court only\ndebt that had not been discharged, the state court viewed this articulation of their\ncounterclaim as disingenuous in that Appellants clearly knew no unsecured debt had\nsurvived bankruptcy. Notwithstanding Appellants’ naked assertion as to\nCounterclaims 3 and 4 that they were seeking only non-discharged debt, the state trial\ncourt repeatedly emphasized Beyers’s knowledge as to the consequences of the\nbankruptcy discharge and the clarity of his knowledge regarding the insufficiency of\nthe surviving liens.\n\n Subsequently, in ruling on the motion for sanctions, the bankruptcy court\nsimilarly rejected any reliance on the naked language of the counterclaims. The\nbankruptcy court, referencing its initial skepticism as to the Stablers’ challenge to\nAppellants’ collection efforts, stated the landscape had changed. The bankruptcy\ncourt was no longer looking only at the demand for relief in Counterclaims 3 and 4,\nbut was reviewing the entirety of the matter. Importantly, it had become clear the\ncomplicated structuring of the post-discharge transactions, coupled with Beyers’s\nparticipation in the bankruptcy and its planning, demonstrated a lack of good faith\nand an effort to defeat the bankruptcy discharge that culminated in the filing of the\ncounterclaims.\n\n We agree. In summary, Appellants enjoyed neither a factual nor a legal basis\nto assert that they filed Counterclaims 3 and 4 in good faith. The bankruptcy court\ndid not abuse its discretion in imposing sanctions and attorney fees.\n\n We affirm the judgment of the district court affirming the judgment of the\nbankruptcy court.\n ______________________________\n\n\n\n\n -18-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363076/", "author_raw": "MELLOY, Circuit Judge."}]}	SHEPHERD	MELLOY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585823/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: FIRST STATE BANK OF ROSCOE; John R. Beyers, Appellants v. Brad Allen STABLER; Brenda Lee Stabler, Appellees\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1904\n ___________________________\n\n First State Bank of Roscoe; John R. Beyers\n\n lllllllllllllllllllllAppellants\n\n v.\n\n Brad Allen Stabler; Brenda Lee Stabler\n\n lllllllllllllllllllllAppellees\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: May 16, 2018\n Filed: January 30, 2019\n ____________\n\nBefore SHEPHERD, MELLOY, and GRASZ, Circuit Judges.\n ____________\n\nMELLOY, Circuit Judge.\n\n First State Bank of Roscoe (the “Bank”) and John R. Beyers appeal the\njudgment of the district court1 affirming a bankruptcy court order holding them in\n\n 1\n The Honorable Roberto A. Lange, United States District Judge for the District\nof South Dakota, affirming the order of the Honorable Charles L. Nail, Jr., United\nStates Bankruptcy Judge for the District of South Dakota.\n\fcontempt and sanctioning them for violating a final bankruptcy discharge injunction.\nThe Bank and Beyers argue on appeal that an earlier bankruptcy court order and\nrelated state-court judgments have preclusive effect and bar the current contempt\norder. They also argue that even if preclusion doctrines do not otherwise bar relief,\nthey held a good faith belief that prevailing law permitted their conduct such that\nsanctions are inappropriate. We affirm.\n\n I.\n\n Brad and Brenda Stabler (the “Stablers”) borrowed from the Bank to fund an\nagricultural services business. Beyers was a principal at the Bank. When the\nStablers’ business failed, the Stablers liquidated their business, and Beyers counseled\nthem to seek bankruptcy protection. In the bankruptcy, the Stablers’ attorney (whom\nBeyers recommended to the Stablers and who previously served as attorney for the\nBank) failed to list all debt owed by the Stablers to the Bank. The Stablers owed the\nBank over $600,000, but the bankruptcy schedules listed the Bank as a secured\ncreditor claiming much less than that amount. In addition to personal loan guarantees\nfrom the Stablers, the Bank held priority liens against the Stablers’ land and farm\nmachinery as well as a lien on land owned by Brad Stabler’s parents. It is undisputed\nthat the liens, in total, were insufficient to secure fully the Stablers’ pre-bankruptcy\nindebtedness to the Bank.\n\n After the Stablers received their bankruptcy discharge, the Bank continued to\nhold security interests on the Stablers’ land and equipment and on Brad’s parents’\nland. Rather than foreclosing on this collateral (and realizing a substantial loss), the\nBank and Beyers obtained from the Stablers and Brad’s parents a commitment to pay\na new $650,000 note, an amount substantially in excess of the security interests that\nhad survived bankruptcy. The Bank and Beyers obtained this commitment without\ncourt approval and through a series of transactions and debt transfers involving third\nparties. Specifically, the four Stablers became obligated on a $416,000 note to a\n\n -2-\n\fpartnership named Schurrs, a $213,000 note to Roger Ernst, and a $21,000 note to a\ncompany named H&K Acres. These three other parties had relationships with Beyers\nor the Bank and received from the Bank assignments of security interests.\nEventually, the Stablers paid off the $21,000 note, and Beyers received the other\nnotes and related security interests by assignment. Later, acting as a guarantor,\nBeyers helped the Stablers obtain a $150,000 loan from Ipswich State Bank\n(“Ipswich” and “Ipswich Note”) secured by the Stablers’ property. The Stablers used\nthis additional $150,000 to pay the Bank, but the parties dispute whether this payment\nto the Bank was for discharged debt or post-discharge debt. Eventually, Beyers\nobtained assignment of the Ipswich Note and related security interests from Ipswich.\n\n Next, the Stablers fell behind on their payments, and the Bank and Beyers\ncommenced collection efforts. In response, the Stablers and Brad Stabler’s parents\ninitiated a state-court action seeking a determination of what they owed the various\nlenders. In the state-court action, they alleged the post-bankruptcy commitments\nwere unenforceable improper reaffirmations of discharged debt. They also alleged\nclaims of fraud, breach of fiduciary duty, and conspiracy, asserting the Bank and\nBeyers knew the debt refinanced with the $650,000 note had been discharged but\nmisrepresented that the discharged amounts were still owed.\n\n The Bank and Beyers asserted four counterclaims. They argued that\nforbearance from foreclosing on the security interests that had survived discharge\nserved as permissible consideration for new security interests and repayment\ncommitments. Based on these arguments, Beyers and the Bank asserted that the\nreaffirmed debt was enforceable. Beyers and the Bank invited the state court to\ndetermine what debt had and had not been discharged in bankruptcy, and they\ncharacterized their enforcement efforts as relating only to debt that the state court\nmight determine not to have been discharged. In fact, in their state court\ncounterclaims, Beyers and the Bank indicated they were seeking to collect only on\nnon-discharged debt.\n\n -3-\n\f Looking specifically at the Bank and Beyers’s counterclaims, Counterclaims\n1 and 2 sought to collect on the Ipswich Note and foreclose on the collateral for that\nloan. Counterclaims 3 and 4 involved the $650,000 note that was approximately\nequal in amount to what the Stablers owed Beyers and the Bank prior to bankruptcy.\n\n Beyers and the Bank moved for summary judgment on Counterclaims 1 and 2.\nAfter Beyers and the Bank filed their motion for summary judgment in the state court,\nbut before the state court had ruled on the motion, the Stablers filed an adversary\ncomplaint in the bankruptcy court (a complaint the parties later conceded could be\ndeemed a motion for sanctions) seeking contempt sanctions against Beyers and the\nBank and alleging violation of the discharge injunction. The state court then granted\nsummary judgment to the Bank and Beyers on Counterclaims 1 and 2, holding the\nStablers had entered into the Ipswich Note after bankruptcy and had used the\nproceeds to pay off security interests that survived bankruptcy. The state court held\nthe Stablers were in default on the Ipswich Note such that Beyers could foreclose on\nthat loan’s collateral.\n\n After the state court granted summary judgment on Counterclaims 1 and 2, the\nBank and Beyers moved to dismiss the adversary complaint. In ruling on the motion\nto dismiss, the bankruptcy court entered an order with two seemingly inconsistent\nholdings. Looking at the Bank and Beyers’s state-court pleadings in which those\nparties limited their request for relief to debt that had not been discharged, the\nbankruptcy court indicated that it appeared the Bank and Beyers were seeking relief\nrelated solely to permissible loans and not related to impermissible reaffirmations of\ndischarged debts. The bankruptcy court also indicated that the state-court grant of\nsummary judgment regarding Counterclaims 1 and 2 (the counts concerning the\nIpswich Note) appeared to have preclusive effect. Based on these observations, the\nbankruptcy court appeared to grant the motion to dismiss for failure to state a claim.\n\n\n\n\n -4-\n\f The bankruptcy court also held, however, that the state court possessed\njurisdiction and authority to make discharge determinations. As such, the bankruptcy\ncourt expressly abstained from ruling on the motion to dismiss and noted that the\nStablers could return to the bankruptcy court if the state court were to determine the\nBank or Beyers had impermissibly attempted to collect discharged debt. In reaching\nthis determination, the bankruptcy court expressed skepticism that the Stablers might\nachieve any such result in state court. Nevertheless, the bankruptcy court abstained\nand expressly left open the possibility of the Stablers later returning to the bankruptcy\ncourt.\n\n The Stablers appealed to the Bankruptcy Appellate Panel (“BAP”) as to both\nissues, and the BAP affirmed. Stabler v. Beyers (In re Stabler), 418 B.R. 764, 766\nn.2, 769–71 (B.A.P. 8th Cir. 2009). The BAP, however, addressed only the issue of\nabstention. No party sought from the BAP further analysis or explanation as to the\nbankruptcy court’s apparent granting of the motion to dismiss on the merits.\n\n Meanwhile, the state-court action proceeded. The state court granted summary\njudgment for the Stablers on Counterclaims 3 and 4 and reversed its own earlier grant\nof summary judgment to Beyers and the Bank on Counterclaims 1 and 2. As to\nCounterclaims 3 and 4, the state court determined the $650,000 note was an\nunenforceable reaffirmation of discharged debt. The court found Beyers had\n“concocted a transaction” involving third parties for the purposes of recreating\ndischarged debt. The court also found Beyers did so without good faith and in an\neffort to overcome the bankruptcy discharge. These determinations also led the court\nto conclude that a question of material fact existed as to whether Beyers could enforce\nthe Ipswich Note at issue in Counterclaims 1 and 2.\n\n Prior to trial, the Stablers dropped their fraud claim and elected to seek\nrescission of the $650,000 note. The Stablers’ attorney indicated at the state-court\npretrial hearing that they would seek attorney fees in bankruptcy court rather than in\n\n -5-\n\fstate court. Issues remaining for trial, therefore, included the Stablers’ claim for\nrescission of the $650,000 note, the enforceability of the Ipswich Note, and a fraud\nclaim asserted by Brad’s parents. In their fraud claim, Brad’s parents alleged Beyers\nobtained their signature on the $650,000 note by falsely misrepresenting to them that\nBrad owed much of the debt underlying that note even though it had been discharged\nin bankruptcy. Brad’s parents’ claim was tried to a jury. The Stablers’ rescission\nclaim and Counterclaims 1 and 2 were tried to a judge.\n\n The jury returned a special verdict in Brad’s parents’ case, finding that\n$439,100 of the $650,000 note was obtained by fraud.\n\n In the bench trial, the court entered a written order describing in detail its\nfindings as to the events that led the Stablers to enter into the $650,000 post-\ndischarge note. After introducing the parties and the initial debts, the court stated:\n\n Things did not go well with [the Stablers’ business]. [The\n business] was being sued by various parties. John Beyers assessed the\n situation and realized that [the business] was doomed. More\n importantly, John Beyers realized that if the litigation was allowed to\n proceed, those other parties were going to obtain judgments against [the\n business]. Beyers realized that [the business] did not have sufficient\n assets to cover all of its liabilities and was essentially bankrupt. Being\n an astute and experienced businessman, Beyers saw the natural\n progression. Unless he took action, [the business] eventually would be\n forced into bankruptcy. He realized that [the Bank] was under-secured\n on the loans to Brad and Brenda Stabler and [the business]. In order to\n protect [the Bank’s] interests, Beyer[s] arranged for Brad and Brenda\n Stabler to meet with Attorney Rob Ronayne about filing for bankruptcy.\n\n The evidence establishes that this bankruptcy was not Brad or\n Brenda’s idea. This idea was solely that of John Beyers. John Beyers\n decided that Brad and Brenda Stabler should file bankruptcy. John\n Beyers personally decided who Brad and Brenda Stabler should use as\n\n\n -6-\n\ftheir bankruptcy attorney—Rob Ronayne. Rob Ronayne is an\nexperienced bankruptcy attorney. Rob Ronayne also regularly served\nas an attorney for [the Bank]. John Beyers also knew this. John Beyers\nconvinced Brad and Brenda Stabler that he was acting in their best\ninterests. He was not and knew it. I find and conclude that John\nBeyers’[s] intention was to protect the financial interests of [the Bank].\n\n John Beyers owns [the Bank]. John Beyers knew that if the\nlawsuits were allowed to proceed, [the business] and Brad and Brenda\nStabler would eventually end up filing for bankruptcy. By maintaining\ntheir trust, encouraging them to file bankruptcy, and selecting their\nbankruptcy attorney, Beyers believed that he could control the situation\nso that the debts of other creditors could be discharged while the\nobligations to [the Bank] could be maintained or reassumed. Over the\ncourse of the next year, this is exactly what John Beyers and [the Bank]\naccomplished.\n\n Brad and Brenda Stabler filed for and received discharge from\nbankruptcy court. The discharge eliminated Brad’s personal guarantee\nof [the business] debt. [The Bank] still held security interests in Brad\nand Brenda Stabler’s farm and machinery because such secured interests\nare not discharged by bankruptcy. [The Bank] still held a security\ninterest worth approximately $110,000 over a quarter section parcel of\nland owned by [Brad’s parents]. [The Bank] could have foreclosed on\nthat quarter of land to recover on that debt. [The Bank] could have\nforeclosed on Brad and Brenda’s land and other secured property. This\ncourse of action would have resulted in a significant shortfall for [the\nBank]. [The Bank] would have recovered some money but would have\ntaken a significant loss on the various loans of Brad and Brenda and [the\nbusiness]. More importantly, [the Bank] would have had no further\nrecourse against any of the Stablers. John Beyers understood this.\n\n Instead of accepting such a loss, John Beyers devised a scheme\nthrough which he would convince Brad and Brenda Stabler to continue\npaying on their discharged debt. Alone, this would be practically\nuseless because Brad and Brenda clearly did not have the resources to\nservice the reaffirmed debt. It was only a matter of time before they\n\n -7-\n\f would default. John Beyers’[s] scheme included a plan to improve [the\n Bank’s] security interests by convincing [Brad’s parents] to sign\n increasingly larger mortgages to their entire farm in order to secure the\n debt of Brad and Brenda. This is exactly what transpired. As found by\n the jury and by this Court, $43[9,1]00 of the value of those mortgages\n was obtained by fraud on the part of John Beyers and [the Bank].\n\nStablers v. First State Bank of Roscoe, et al., Civ. No. 07-11 (S.D. Cir. July 8, 2013)\n(Memorandum Decision following court trial).\n\n The state trial court concluded that Beyers had coerced Brad and Brenda into\nreaffirming their debt and that “[t]his type of behavior is exactly what the\n‘reaffirmation process’ is intended to protect against.” Id. at n.2. The court granted\nthe Stablers’ rescission of the $650,000 note, awarding the Stablers $142,908.27.\nFinally, the court described Beyers’s behavior surrounding the Ipswich Note as\ndishonest and manipulative, but concluded Beyers could enforce that particular loan\nagainst the Stablers. On appeal, the South Dakota Supreme Court affirmed. Stabler\nv. First State Bank of Roscoe, 865 N.W.2d 466, 469 (S.D. 2015).\n\n After the state appeal became final, the Stablers, as envisioned by the\nbankruptcy court and consistent with the Stablers’ expressly declared intent in the\nstate court, returned to the bankruptcy court. The Stablers sought attorney fees and\na contempt sanction for violation of the discharge injunction. The Bank and Beyers\nargued the bankruptcy court’s earlier order was res judicata and precluded any\nbankruptcy court sanction. The Bank and Beyers also argued the Stablers’ failure to\nsecure fees or sanctions in state court precluded any sanction order from the\nbankruptcy court. Finally, they argued sanctions were inappropriate because they had\nrelied in good faith upon cases appearing to permit reaffirmations outside of\nbankruptcy in exchange for forbearance in foreclosing upon a security interest. The\nbankruptcy court rejected the Bank and Beyers’s arguments and sanctioned each\n$25,000. And, in an extensive and careful analysis rejecting many claimed fees but\n\n -8-\n\fawarding others, the bankruptcy court imposed upon the Bank and Beyers joint and\nseveral liability for $ 159,605.77 in attorney fees. The Bank and Beyers appealed to\nthe district court, which affirmed.\n\n II.\n\n As a second reviewing court, we apply the same standards as the district court\nin our review of the bankruptcy court’s order. See Contractors, Laborers, Teamsters\n& Eng’rs Health and Welfare Plan v. Killips (In re M & S Grading, Inc.), 526 F.3d\n363, 367 (8th Cir. 2008). We generally review factual determinations for clear error\nand interpretations of law de novo. Id. In the absence of errors at law or clearly\nerroneous factual determinations, we review a sanctions award, including an award\nof attorney fees, for an abuse of discretion. See Williams v. King (In re King), 744\nF.3d 565, 570 (8th Cir. 2014) (“The bankruptcy court was perfectly within its\ndiscretion to impose the sanction.”). Appellants do not challenge the actual amounts\nof the sanction or fee award. Rather, they challenge the propriety of any award,\npresenting somewhat overlapping legal arguments addressing preclusion and their\nalleged good faith beliefs concerning the state of the law at the time they filed their\ncounterclaims. We address their arguments in turn.\n\n A. Preclusive Effect of the Bankruptcy Court’s Abstention Ruling and of\n the Stablers’ Failure to Seek Sanctions or Punitive Damages in State\n Court.\n\n Our court employs a flexible and pragmatic approach when assessing the\npreclusive effect of a court’s order. See, e.g., John Morrell & Co. v. Local Union\n304A, United Food & Commercial Workers, 913 F.2d 544, 563–64 (8th Cir.1990)\n(noting that finality in the context of issue preclusion may be satisfied where the\nlitigation has reached such a stage that the “court sees no really good reason for\npermitting it to be litigated again” (citation omitted)). And when assessing the\n\n\n -9-\n\fpreclusive effect of a state court judgment, we apply that state’s law governing\npreclusion. See Finstad v. Beresford Bancorporation, Inc., 831 F.3d 1009, 1013 (8th\nCir. 2016). Like our court, South Dakota applies a practical analysis, looking at the\nparties’ roles and actions in the underlying proceeding. See Am. Family Ins. Grp. v.\nRobnik, 787 N.W.2d 768, 775–76 (S.D. 2010) (considering the practical dynamics\nof an underlying action to determine whether there had been “a full and fair\nopportunity to litigate the issues in the prior proceeding,” and taking into\nconsideration facts such as (1) the alignment of interests between an insured and an\ninsurer providing a defense under a reservation of rights and (2) the relevancy of\nlater-raised issues during the earlier proceeding). Consistent with this pragmatic\napproach, we recognize that bankruptcy courts and state trial courts operate within\na framework governed not only by law and procedure, but also by the informed\nchoices that the parties make as expressed clearly to the court and to one another. As\nsuch, and in general, we do not make preclusion determinations in the abstract or in\na vacuum. Rather, we look to see what the underlying court actually said and what\nthe parties communicated to one another and to the court about what they understood\nto be at issue in the underlying proceeding.\n\n Here, when the bankruptcy court ruled on Appellants’ abstention request, the\nbankruptcy court expressly acknowledged that the state court possessed the authority\nto make discharge determinations and to assess the true scope of what Appellants\nwere actually seeking through their counterclaims. The bankruptcy court was correct\nin this regard, and no party in the present case actually challenges this ruling. See\nApex Oil Co. v. Sparks (In re Apex Oil Co.), 406 F.3d 538, 542 (8th Cir. 2005)\n(discussing 28 U.S.C. § 1334(b), holding that a state court could rule on\ndischargeability issues, and noting that “Congress granted state courts concurrent\njurisdiction to consider bankruptcy issues arising from Chapter 11 proceedings”).\nThe bankruptcy court expressed skepticism as to the merits of the Stablers’\narguments, but invited the Stablers to return if the state court were to resolve\ndischarge issues in their favor. Simply put, the bankruptcy court did not purport to\n\n -10-\n\fabstain permanently. It is obvious to our Court that the bankruptcy court did not\nbelieve itself to be issuing a ruling that would have preclusive effect.2\n\n Then, in state court, counsel for the Stablers stated in a pretrial hearing that the\nStablers were dropping their fraud claim and their demand for attorney fees and\nelecting to pursue in the state-court trial the remedy of rescission of the $650,000\nnote.3 At that hearing, and in briefing that preceded the hearing, counsel\ncommunicated clearly to the court and to Appellants that, as per the bankruptcy\ncourt’s invitation, the Stablers still intended to return to bankruptcy court. There is\nno indication that Appellants contested or objected to this clearly expressed intention\nand proposed course of action. Now, by asserting that the earlier abstention ruling\nor the failure to pursue sanctions and fees in state court precludes a return to\nbankruptcy court, the Appellants essentially seek to treat the state-court election of\nremedies as a “gotcha” moment. The time to object to the Stablers’ proposed course\nof action, however, was at the hearing where the course of action was proposed.\nAppellants’ failure to object, coupled with their later challenge to the Stablers’ return\nto the bankruptcy court, amounts to an attempt to deprive the Stablers of “a full and\nfair opportunity to litigate the issues.” Robnik, 787 N.W.2d at 775. We will not\napply our circuit’s or South Dakota’s pragmatic approach to preclusion analysis in a\n\n\n 2\n The bankruptcy court stated:\n\n I believe it would be possible, even preferable, to sever debtors’ state\n court claims, allow the state court to determine, as it already has with\n respect to count one of Beyers’[s] state court counterclaim, whether any\n of the debts Beyers is seeking to collect have been discharged. And if\n the state court determines, albeit contrary to the express language of\n counts three and four of Beyers’[s] state court counterclaim, any of those\n debts have been discharged, allow debtors to renew their complaint.\n 3\n Brad’s parents did not drop their fraud claim, resulting in their trial of legal\nissues to a jury rather than to the bench as with the Stablers’ rescission claim.\n\n -11-\n\fmanner that thwarts such clearly expressed intentions or rewards Appellants’ election\nto remain silent in the face of the Stablers’ proposal.\n\n Appellants, ignoring this nuance, argue in their brief that “the [b]ankruptcy\ncourt did not qualify or limit the scope of its abstention in any way.” It is true that\nthe bankruptcy court dismissed the adversary complaint rather than staying the case.\nStill, Appellants’ assertions flatly ignore the balance of the bankruptcy court record\nin which the bankruptcy court: (1) expressly invited the Stablers to return to\nbankruptcy court depending upon the outcome of the state-court proceedings; and (2)\nlater clarified its own order by accepting the case again. See, e.g., United States v.\nMaull, 855 F.2d 514, 516–17 (8th Cir. 1988) (holding that a lower court’s later order\n“effectively clarified the ambiguity in its earlier order and ‘rebutted the presumption\nof finality created by Rule 41(b)’” (quoting Knox v. Lichtenstein, 654 F.2d 19, 22\n(8th Cir. 1981))).\n\n Appellants also argue strenuously that our opinion in Apex Oil Company, Inc.\nv. Sparks, 406 F.3d 538, 542 (8th Cir. 2005), somehow precludes the Stabler’s from\nreturning to the bankruptcy court after the state court entered its judgment. In Apex,\nwe held that state courts hold concurrent jurisdiction to make discharge\ndeterminations. Apex, however, did not address the question of a state court’s\nauthority to issue sanctions for violation of a bankruptcy discharge. In Apex,\nhomeowners sued a bankrupt debtor in state court alleging the debtor had allowed a\nplume of gasoline and other petroleum products to form under their homes thus\ndecreasing their property values and risking their health. Id. at 540–41. The debtor,\nwho had already passed through bankruptcy, moved the bankruptcy court to reopen\nthe bankruptcy arguing the plume-related claim had arisen prior to bankruptcy and\nwas barred by the discharge injunction even though the homeowners had not filed a\nclaim in the bankruptcy. Id. at 541. The debtor sought enforcement of the discharge\ninjunction against the homeowners, an order holding the homeowners in contempt for\nviolating the discharge injunction, and an order directing the homeowners to dismiss\n\n -12-\n\ftheir claims. Id. The bankruptcy court refused to reopen the case. Id. We affirmed,\nholding 28 U.S.C. § 1334(b) granted state courts concurrent jurisdiction, Apex, 406\nF.3d at 542, and finding the state court “fully competent to determine whether the\nplan and the injunction apply to the [homeowners’ ] claims.” Id. at 543.\n\n Even assuming that Apex could be extended to stand for the proposition that\nthe state court is empowered to order contempt sanctions and impose attorney fees\nindependent from a state law cause of action, it certainly cannot be extended to\npreclude the bankruptcy court’s actions in this case. Apex held merely that a\nbankruptcy court did not abuse its discretion in refusing to reopen a case. Apex did\nnot purport to disempower the bankruptcy court, which, of course, possesses\njurisdiction to enforce its own orders. See, e.g., Koehler v. Grant, 213 B.R. 567,\n569–70 (B.A.P. 8th Cir. 1997).\n\n B. Law of the Case/Preclusive Effect of the Bankruptcy Court’s Alternative\n “Holding”\n\n As noted, the bankruptcy court’s first post-discharge order contained seeming\ninconsistencies. That court appeared to grant the Appellants’ motion to dismiss on\nthe merits and also expressly abstained from ruling on the motion. Appellants now\nargue the bankruptcy court’s initial order appearing to grant their motion to dismiss\nis the “law of the case” and should preclude the later sanction order. We reject their\nargument for two reasons.\n\n First, if a ruling contains a decision to abstain or a decision concerning the\ncourt’s power to decide the case, any purported resolution of the merits generally\nshould be of no effect. See, e.g., Remus Joint Venture v. McAnally, 116 F.3d 180,\n184 n.5 (6th Cir. 1997) (“[W]hen a . . . ruling rests on alternative grounds, at least one\nof which is based on the inability of the court to reach the merits, the judgment should\nnot act as a bar in a future action.”); 18 Charles Alan Wright et al., Federal Practice\n\n\n -13-\n\fand Procedure § 4421 (3d ed. 2018) (“If a first decision is supported both by findings\nthat deny the power of the court to decide the case on the merits and by findings that\ngo to the merits, preclusion is inappropriate as to the findings on the merits.”). The\npurported resolution of issues on the merits is, for all intents and purposes, a nullity\nin light of the court’s express election to abstain. See Disher v. Info. Res., Inc., 873\nF.2d 136, 140 (7th Cir. 1989) (“A dismissal based on the district court’s relinquishing\nits pendent jurisdiction deprives any ruling that he may have made on the merits of\na relinquished claim of preclusive effect.”).\n\n Second, the BAP in this matter affirmed the bankruptcy court on abstention\ngrounds and did not address the motion to dismiss on the merits. When an appeals\ncourt decides the case before it on only one of multiple grounds presented for review,\nthose grounds decided below and not addressed by the appeals court generally do not\ncarry preclusive effect in future proceedings. See Fairbrook Leasing, Inc. v. Mesaba\nAviation, Inc., 519 F.3d 421, 425 (8th Cir. 2008) (“As the district court’s decision\nwas based on alternative grounds, the preclusive effect of the summary judgment we\naffirmed in Fairbrook I must be determined by examining our opinion, not the district\ncourt’s Order.”); Mandich v. Watters, 970 F.2d 462, 465 (8th Cir. 1992) (“The\ngeneral rule is that, ‘if a judgment is appealed, collateral estoppel only works as to\nthose issues specifically passed upon by the appellate court.’” (quoting Hicks v.\nQuaker Oats Co., 662 F.2d 1158, 1168 (5th Cir. 1981))).\n\n Consistent with our pragmatic approach to analyzing preclusion, these two\n“rules,” while seemingly clear, should by no means be considered absolute. Still, we\nconclude the bankruptcy court’s initial statement as to the merits is best understood\nas a statement of skepticism concerning the Stablers’ position coupled with an\nelection to let the state court entertain the merits. Those comments, in light of the\nbankruptcy court’s express abstention, do not establish the law of the case or preclude\na later ruling on the merits.\n\n\n\n -14-\n\f C. State of Law Regarding Reaffirmation as Material to the Question of the\n Bank and Beyers’s Good Faith Argument.\n\n “A reaffirmation agreement is one in which the debtor agrees to repay all or\npart of a dischargeable debt after a bankruptcy petition has been filed.” Venture Bank\nv. Lapides, 800 F.3d 442, 445 (8th Cir. 2015) (quoting In re Duke, 79 F.3d 43, 44\n(7th Cir. 1996)). In general, reaffirmation agreements are unenforceable unless they\nare (1) “made before the granting of the discharge”; (2) “made after the debtor\nreceived disclosures as described in [§ 524(k)]”; and (3) “filed with the court.” 11\nU.S.C. § 524(c). Congress imposed these requirements “to . . . safeguard[] debtors\nagainst unsound or unduly pressured judgments about whether to attempt to repay\ndischargeable debts.” Venture Bank, 800 F.3d at 446 (alteration in original) (quoting\nIn re Jamo, 283 F.3d 392, 398 (1st Cir. 2002)). Debtors, of course, are free to\nvoluntarily repay a creditor. See 11 U.S.C. § 524(f) (stating that discharge does not\n“prevent[] a debtor from voluntarily repaying any debt”). But, when assessing the\nvoluntariness of the debtor’s actions, we consider the creditors’ use of pressure and\ncoercion and its impact on the debtor. And, when assessing the particular actions\nalleged to be in violation of the discharge—in this case the filing of the\ncounterclaims—we cannot separate those actions and view them in isolation. Rather,\n“[t]he ‘coerciveness’ involved in each case must be assessed on its particular facts.”\nVenture Bank, 800 F.3d at 448 (quoting In re Pratt, 462 F.3d 14, 20 (1st Cir. 2006)).\n\n Sanctions are available for a willful violation of a discharge injunction. See\nWalton v. LeBarge (In re Clark), 223 F.3d 859, 864 (8th Cir. 2000) (“[11 U.S.C. §]\n105[(a)] gives to bankruptcy courts the broad power to implement the provisions of\nthe bankruptcy code and to prevent an abuse of the bankruptcy process, which\nincludes the power to sanction counsel.”). Sanctions generally should be unavailable\nwhere a creditor acts without knowledge of the injunction or in good faith reliance\non the belief that their actions are permissible. See, e.g., Everly v. 4745 Second\nAve., Ltd. (In re Everly), 346 B.R. 791, 797–98 (B.A.P. 8th Cir. 2006) (“[A]s long\n\n\n -15-\n\fas a creditor has a good faith basis for believing that its debt was excepted from\ndischarge or, as in this case, had no knowledge of any such discharge, the creditor is\nnot subject to sanctions for violating the discharge injunction when it proceeds in\nstate court.”); but see Taggart v. Lorenzen, 888 F.3d 438 (9th Cir. 2018), cert.\ngranted, 2019 WL 98543 (U.S. Jan. 4, 2019) (granting certiorari regarding whether\na creditor’s good-faith beliefs may preclude a finding of civil contempt for discharge\ninjunction violation). Here, Appellants argue they acted in good faith when seeking\na determination from the state court as to what portion of the debt had not been\ndischarged. In particular, they argue that, at the time they filed their counterclaims\nin state court, they acted in good faith because the law was unclear regarding the\npermissibility of obtaining a new commitment from a bankrupt debtor after discharge\nbased upon a secured lender’s forbearance in foreclosing on a security interest.4\n\n To support their good-faith argument, Appellants cite several lower court cases\nthey characterize as permitting a lienholder and a bankrupt debtor to treat forbearance\nsurrounding a surviving lien as new and sufficient consideration for new debt. See\nWatson v. Shandell (In re Watson), 192 B.R. 739, 748 (B.A.P. 9th Cir. 1996); Shields\nv. Stangler (In re Stangler), 186 B.R. 460, 463–64 (Bankr. D. Minn. 1995); Minster\nState Bank v. Heirholzer (In re Heirholzer), 170 B.R. 938, 941 (Bankr. N.D. Ohio\n1994); In re Petersen, 110 B.R. 946, 950 (Bankr. D. Colo. 1990); Button v. Sheridan\nOil Co. (In re Button), 18 B.R. 171, 172 (Bankr. W.D.N.Y. 1982). They also argue\nthat the bankruptcy court’s initial statements in this case voicing skepticism at the\nStablers’ position further demonstrate the reasonableness of their own view regarding\nthe permissibility and enforceability of the new loan. Neither argument can succeed.\n\n\n\n\n 4\n The law in our circuit is now clear that “a secured creditor’s post-discharge\nforbearance is not sufficient to take a reaffirmation agreement outside the purview of\n§ 524(c).” Venture Bank, 800 F.3d at 447. The events in this case, however,\npredated Venture Bank.\n\n -16-\n\f The authority Appellants purport to have relied upon at the time they filed their\ncounterclaims establishes, at most, that, in limited circumstances, post-discharge\nforbearance may serve as consideration for a new commitment to repay the present\nvalue of the lien—an amount a bankruptcy court might have found permissible if\npresented to the court prior to discharge. See, e.g., In re Stangler, 186 B.R. at 463\n(indicating reaffirmation based upon lienholder’s forbearance was permissible as\nrelated to the present value of the surviving lien). None of Appellants’ cases suggest\na lienholder could leverage a security interest to obtain a larger repayment\ncommitment, much less a larger commitment representing a discharged personal debt.\nThe absence of authority to support Appellants’ position is unsurprising given the\nclarity of § 524(c)’s purposes and its express requirements. Moreover, the South\nDakota Supreme Court in its review of the state court trial in this matter agreed\nemphatically and noted the absence of any evidence suggesting Appellants had\nattempted to place a current value on the surviving lien. See Stabler, 865 N.W.2d at\n478. That court stated:\n\n We do not think the law is so unclear as to render Defendants unaware\n of its application to Defendants’ conduct. . . . Any claim by Beyers that\n the consideration to forego foreclosure on liens that passed through\n bankruptcy is new consideration to which [§ 524(c)] does not apply is\n unconvincing in the context of this case. There is no indication that any\n sort of valuation was done on the liens that survived bankruptcy.\n Instead, Defendants sought out Stablers to renew all obligations that\n they owed prior to the bankruptcy, in the same form and amount that\n Brad and Brenda personally owed pre-bankruptcy. We see no attempt by\n Defendants to enter into an entirely new arrangement based on the value\n of the surviving liens. Nor is the mere continuing of a banking\n relationship sufficient to fulfill the statutory provisions regarding\n reaffirmation, and Defendants cite no authority for such a proposition.\n\nId. (emphasis added).\n\n\n\n -17-\n\f Finally, although Appellants nominally purported to seek in state court only\ndebt that had not been discharged, the state court viewed this articulation of their\ncounterclaim as disingenuous in that Appellants clearly knew no unsecured debt had\nsurvived bankruptcy. Notwithstanding Appellants’ naked assertion as to\nCounterclaims 3 and 4 that they were seeking only non-discharged debt, the state trial\ncourt repeatedly emphasized Beyers’s knowledge as to the consequences of the\nbankruptcy discharge and the clarity of his knowledge regarding the insufficiency of\nthe surviving liens.\n\n Subsequently, in ruling on the motion for sanctions, the bankruptcy court\nsimilarly rejected any reliance on the naked language of the counterclaims. The\nbankruptcy court, referencing its initial skepticism as to the Stablers’ challenge to\nAppellants’ collection efforts, stated the landscape had changed. The bankruptcy\ncourt was no longer looking only at the demand for relief in Counterclaims 3 and 4,\nbut was reviewing the entirety of the matter. Importantly, it had become clear the\ncomplicated structuring of the post-discharge transactions, coupled with Beyers’s\nparticipation in the bankruptcy and its planning, demonstrated a lack of good faith\nand an effort to defeat the bankruptcy discharge that culminated in the filing of the\ncounterclaims.\n\n We agree. In summary, Appellants enjoyed neither a factual nor a legal basis\nto assert that they filed Counterclaims 3 and 4 in good faith. The bankruptcy court\ndid not abuse its discretion in imposing sanctions and attorney fees.\n\n We affirm the judgment of the district court affirming the judgment of the\nbankruptcy court.\n ______________________________\n\n\n\n\n -18-\n[END_CASE]", "role": "user" } ]
4,586,287	Russell PEDEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.	Russell Peden v. United States	2019-01-31	17-3102	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3102\n ___________________________\n\n Russell Peden\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Springfield\n ____________\n\n Submitted: November 16, 2018\n Filed: January 31, 2019\n [Published]\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n In 2002, Russell Peden pleaded guilty to one count of possession with intent\nto distribute 50 grams or more of cocaine base. At sentencing, the district court\nclassified him as a career offender under United States Sentencing Guidelines\n§ 4B1.1 based in part on a previous conviction for California burglary, which the\ndistrict court determined qualified as a predicate “crime of violence” under the\n\fGuidelines. The district court sentenced Peden to 262 months’ imprisonment. In\nJune 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based on\nJohnson v. United States, 135 S. Ct. 2551 (2015), but the district court1 denied the\nmotion as untimely.\n\n “We review de novo the district court’s decision to dismiss [Peden’s] § 2255\nmotion[] based on the statute of limitations.” E.J.R.E. v. United States, 453 F.3d\n1094, 1097 (8th Cir. 2006). Motions under § 2255 are subject to a one-year\nlimitations period. As relevant here, that period runs from the latest of “the date on\nwhich the judgment of conviction becomes final,” or “the date on which the right\nasserted was initially recognized by the Supreme Court, if that right has been newly\nrecognized by the Supreme Court and made retroactively applicable to cases on\ncollateral review.” 28 U.S.C. § 2255(f)(1), (3).\n\n Peden argues that his motion is timely under § 2255(f)(3) because he filed it\nwithin one year of the Supreme Court’s decision in Johnson, which he claims\nrecognized the right he asserts here. According to Peden, in addition to striking down\nthe residual clause of the Armed Career Criminal Act, Johnson also effectively\ninvalidated the residual clause of the mandatory Guidelines that were in effect at the\ntime of his sentencing.\n\n Our recent decision in Russo v. United States, 902 F.3d 880 (8th Cir. 2018),\nforecloses Peden’s contentions. His instant motion is untimely because, as we\nexplained in Russo, Johnson did not “newly recognize[]” the right Peden asserts—“a\nright under the Due Process Clause to be sentenced without reference to the residual\nclause of § 4B1.2(a)(2) under the mandatory guidelines.” 902 F.3d at 882.\nAccordingly, the judgment of the district court is affirmed.\n\n\n 1\n The Honorable Beth Phillips, Chief Judge, United States District Court for the\nWestern District of Missouri.\n\n -2-\n\f______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363540/", "author_raw": "PER CURIAM"}]}	GRUENDER	KELLY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586287/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Russell PEDEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3102\n ___________________________\n\n Russell Peden\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Springfield\n ____________\n\n Submitted: November 16, 2018\n Filed: January 31, 2019\n [Published]\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n In 2002, Russell Peden pleaded guilty to one count of possession with intent\nto distribute 50 grams or more of cocaine base. At sentencing, the district court\nclassified him as a career offender under United States Sentencing Guidelines\n§ 4B1.1 based in part on a previous conviction for California burglary, which the\ndistrict court determined qualified as a predicate “crime of violence” under the\n\fGuidelines. The district court sentenced Peden to 262 months’ imprisonment. In\nJune 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based on\nJohnson v. United States, 135 S. Ct. 2551 (2015), but the district court1 denied the\nmotion as untimely.\n\n “We review de novo the district court’s decision to dismiss [Peden’s] § 2255\nmotion[] based on the statute of limitations.” E.J.R.E. v. United States, 453 F.3d\n1094, 1097 (8th Cir. 2006). Motions under § 2255 are subject to a one-year\nlimitations period. As relevant here, that period runs from the latest of “the date on\nwhich the judgment of conviction becomes final,” or “the date on which the right\nasserted was initially recognized by the Supreme Court, if that right has been newly\nrecognized by the Supreme Court and made retroactively applicable to cases on\ncollateral review.” 28 U.S.C. § 2255(f)(1), (3).\n\n Peden argues that his motion is timely under § 2255(f)(3) because he filed it\nwithin one year of the Supreme Court’s decision in Johnson, which he claims\nrecognized the right he asserts here. According to Peden, in addition to striking down\nthe residual clause of the Armed Career Criminal Act, Johnson also effectively\ninvalidated the residual clause of the mandatory Guidelines that were in effect at the\ntime of his sentencing.\n\n Our recent decision in Russo v. United States, 902 F.3d 880 (8th Cir. 2018),\nforecloses Peden’s contentions. His instant motion is untimely because, as we\nexplained in Russo, Johnson did not “newly recognize[]” the right Peden asserts—“a\nright under the Due Process Clause to be sentenced without reference to the residual\nclause of § 4B1.2(a)(2) under the mandatory guidelines.” 902 F.3d at 882.\nAccordingly, the judgment of the district court is affirmed.\n\n\n 1\n The Honorable Beth Phillips, Chief Judge, United States District Court for the\nWestern District of Missouri.\n\n -2-\n\f______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]
4,586,289	Patrick Joseph KILEY, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Patrick Joseph Kiley v. United States	2019-01-31	17-2428	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n\n ___________________________\n\n No. 17-2428\n ___________________________\n\n Patrick Joseph Kiley\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 17, 2018\n Filed: January 31, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\f Patrick Joseph Kiley moved to vacate, set aside, or correct his sentence\npursuant to 28 U.S.C. § 2255, claiming that he had received ineffective assistance of\ncounsel at trial. The district court denied the motion.1 We affirm.\n\n I. Background\n\n Following an eight-week trial, Kiley was found guilty of twelve counts of mail\nand wire fraud under 18 U.S.C. §§ 2, 1341, and 1343, one count of conspiracy to\ncommit mail and wire fraud under 18 U.S.C. § 1349, and two counts of money\nlaundering under 18 U.S.C. §§ 2 and 1957. We affirmed Kiley’s conviction and 240-\nmonth sentence on direct appeal. See United States v. Beckman, 787 F.3d 466, 499\n(8th Cir. 2015).\n\n The charges arose from a partial Ponzi scheme (the currency program) started\nby Trevor Cook in 2006, in which Cook and Kiley conspired with others to steal more\nthan $193 million from investors. When the conspiracy began to unravel in 2009,\ninvestors filed a civil lawsuit against several of the co-conspirators (the Phillips\nlitigation). Henry Nasif Mahmoud was retained to represent Kiley and forestall his\nbeing named as a defendant in that litigation. As a retainer, Kiley caused $100,000\nto be wired to Mahmoud’s account at a bank in Naperville, Illinois. The $100,000\ntransfer, consisting of victims’ stolen funds, served as the basis for one of Kiley’s\nmoney laundering convictions. Following Kiley’s indictment in 2011, Mahmoud\nbegan to represent him in his criminal proceedings.\n\n Before trial, the government moved for inquiry, alleging that Mahmoud\nsuffered from three conflicts of interest, two of which concerned Mahmoud’s prior\nrepresentation of two individuals, Duke Thietje and Stephen Nortier, who would be\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota.\n\n -2-\n\fcalled as witnesses at trial. The government also suggested that Mahmoud himself\nmight be a necessary witness at trial because of his receipt of the $100,000 retainer.\nKiley opposed the government’s motion. After a hearing, the district court\ndetermined that Mahmoud was not a necessary witness, but it required Kiley to\nexecute a waiver of the other two conflicts if he wished to be represented by\nMahmoud. Kiley waived the conflicts and was represented at trial by Mahmoud and\nlocal counsel.\n\n At trial, the government presented evidence that Mahmoud was the recipient\nof Kiley’s laundered funds. A government investigator explained how the money had\ntraveled in interstate commerce when it was wired from an account composed entirely\nof victim funds to Mahmoud’s Illinois bank. Mahmoud himself later mentioned the\nretainer when he asked a witness about Kiley’s mental condition “[i]n July of 2009,\nabout the time you sent that wire to me.”\n\n The government also produced emails in which Kiley mentioned Mahmoud’s\nname to an investor. The government introduced during Duke Thietje’s testimony an\nemail thread from 2006 in which Thietje asked Kiley for information about his\ninvestments, to which Kiley responded that he was waiting to hear back from\nMahmoud regarding Thietje’s inquiries. The jury subsequently heard testimony from\nthree attorneys that they had immediately recognized the currency program as\nfraudulent after reviewing its operations in 2008.\n\n Following Kiley’s convictions, Kiley and Mahmoud parted ways and new\ncounsel was appointed for Kiley at sentencing. Kiley thereafter began asserting that\nhe had received ineffective assistance of counsel because Mahmoud’s receipt of\nlaundered funds and entanglement in the conspiracy subjected him to potential\nliability, creating a conflict of interest. On direct appeal, we concluded that the\ndistrict court’s failure to notice and address sua sponte Kiley’s previously unraised\n\n\n\n -3-\n\fconflict-based challenge did not violate Kiley’s Fifth Amendment due process rights.\nSee Beckman, 787 F.3d at 490.\n\n Kiley then filed this § 2255 motion alleging that he was deprived of his Sixth\nAmendment right to effective representation by conflict-free counsel. Kiley argued\nthat Mahmoud’s potential liability caused his and Mahmoud’s interests to diverge\nprior to trial and that the conflict adversely affected Mahmoud’s representation,\nparticularly when the jury learned that Mahmoud had received stolen funds. During\na hearing on the motion, the district court heard testimony from a number of\nwitnesses, including a criminal defense expert and Mahmoud. In denying Kiley’s\nmotion, the court found no evidence of wrongdoing by Mahmoud and insufficient\nevidence to show that Mahmoud had exposed himself to liability by accepting the\nretainer. Finding Mahmoud’s testimony credible, the court concluded that Mahmoud\nhad neither actual nor constructive knowledge that the currency program was\nfraudulent when he accepted Kiley’s retainer in 2009. The court found that\nMahmoud’s credibility before the jury was not harmed and determined that Kiley’s\nrepresentation thus had not been adversely affected.\n\n II. Discussion\n\n We review the denial of Kiley’s § 2255 claim as a mixed question of law and\nfact, affirming the district court’s factual findings absent clear error and considering\nde novo its legal conclusions. Noe v. United States, 601 F.3d 784, 789 (8th Cir.\n2010). “[A] defendant who raised no objection at trial must demonstrate that an\nactual conflict of interest adversely affected his lawyer’s performance.” Cuyler v.\nSullivan, 446 U.S. 335, 348 (1980). “This standard does not require an ‘inquiry into\nactual conflict as something separate and apart from adverse effect.’” Noe, 601 F.3d\nat 790 (quoting Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002)). “An ‘actual\nconflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely\naffects counsel’s performance.” Mickens, 535 U.S. at 172 n.5. Before the district\n\n -4-\n\fcourt, Kiley argued that Mahmoud’s potential liability created a conflict of interest.\nOn appeal, we will examine whether the conflict adversely affected the adequacy of\nhis representation of Kiley at trial. We conclude that it did not.\n\n To show adverse effect, a defendant must show that his attorney failed to\npursue a reasonable alternate defense strategy because of the conflict. See Noe, 601\nF.3d at 790. We have also said in a concurrent representation case that when a\nconflict of interest causes both the attorney as well as the client to look less credible\nbefore the jury, the conflict has a Cuyler-type adverse effect. See Dawan v. Lockhart,\n31 F.3d 718, 722 (8th Cir. 1994). Kiley argues that both theories apply in this case.\n\n He first contends that Mahmoud should have pursued alternate defense\nstrategies at trial. Specifically, he asserts that Mahmoud should either have cross-\nexamined Thietje about the email thread in which Mahmoud was mentioned or\npursued a different defense against the money-laundering charge at issue. Mahmoud\ntestified at the § 2255 hearing that he did not cross-examine Thietje because he\nthought it would elicit testimony harmful to Kiley. The district court found this\ntestimony to be credible. Because Mahmoud’s strategy was reasonable in the\ncircumstances, Kiley has not shown an adverse effect. See Caban v. United States,\n281 F.3d 778, 786 (8th Cir. 2002) (“[I]f a reasonable attorney would have adopted the\nsame trial strategy absent a conflict, Caban cannot show McGlennen’s performance\nwas adversely affected by that conflict.” (emphasis in original)). The district court\nalso found that the evidence of Kiley’s guilt on the money-laundering charge was\n“overwhelming,” and Kiley’s expert witness testified that he would not have pursued\nthe theory which Kiley now advances. Because the district court’s findings are\nsupported by the record and are not clearly erroneous, see Johnson v. Norris, 207 F.3d\n515, 520 (8th Cir. 2000), Kiley has failed to establish that the alternate defense\nstrategy he proposes was objectively reasonable. See Noe, 601 F.3d at 791 (“Because\nthese alternate strategies, the presentation of which would strain credulity in the\n\n\n\n -5-\n\fabsence of any supporting evidence, were not objectively reasonable, Noe has not\nestablished that he was denied the effective assistance of counsel under Cuyler.”).\n\n Kiley’s primary argument, however, is that Mahmoud’s very presence at trial\nadversely affected him after Mahmoud was allegedly implicated in the charged\ncriminal conduct. Relying on Dawan, he asserts that Mahmoud’s potential\ninvolvement diminished both Mahmoud’s and his credibility and thus satisfied\nCuyler.2 In Dawan, Stout and Dawan were charged with burglary. 31 F.3d at 719.\nBoth were represented by the same attorney. Id. Stout pleaded guilty and provided\na sworn statement implicating Dawan. Id. When Stout thereafter testified at Dawan’s\ntrial, however, he denied Dawan’s involvement. Id. at 720. On cross-examination,\nStout admitted that he had lied under oath in his statement and, at the prosecution’s\nrequest, identified Dawan’s attorney as his own counsel. Id. To drive home the point\nof counsel’s earlier representation of the now-discredited Stout, the prosecutor\nphysically pointed to defense counsel’s presence in the courtroom. Id. at 722. On\nredirect, defense counsel merely asked, “But your testimony here today’s true?” Id.\nat 720.\n\n We held that Dawan had shown an adverse effect “even if counsel’s decision\nnot to question Stout about the prior statement was, in fact, purely a matter of trial\nstrategy, and even if that decision had nothing to do with the conflict of interest.” Id.\nat 722. Because the prosecutor showed the jury that “the same attorney currently\nrepresenting Dawan had also represented the witness who changed his story[,] . . .\n[t]he prosecutor’s comments made Dawan’s attorney look less credible and, by\nextension, made Dawan look less credible as well.” Id.\n\n\n 2\n Kiley argues that to avoid this adverse effect, Mahmoud should have pursued\nthe reasonable alternate strategies of withdrawing as counsel or seeking a protective\nstipulation. Because we conclude that Kiley has failed to show any adverse effect,\nwe need not offer any opinion regarding that argument.\n\n -6-\n\f We have not applied Dawan to a case of sole-client representation. We decline\nto extend Dawan here because Kiley has not shown that Mahmoud’s credibility was\ndiminished in the jury’s eyes. In Dawan, the jury could reasonably infer that the\ndefense attorney had suborned perjury. That inference went to the very heart of the\nattorney’s credibility, and, as the court held, by extension to the client’s credibility.\nIn this case, the jury learned only that Mahmoud had been paid with funds that were\nlater determined to have been stolen, which carried no hint of illegality absent\nMahmoud’s knowledge of the nature of the funds at the time he received them. See\n18 U.S.C. § 1957. The district court’s finding that Mahmoud did not know that the\nfunds were stolen is not clearly erroneous in light of the testimony presented during\nthe § 2255 hearing. Likewise so with respect to the district court’s finding that there\nwas insufficient evidence to support a reasonable inference that Mahmoud knew, or\nshould have known, that the funds at issue were illegitimate.\n\n Kiley argues that the court’s underlying factual findings were clearly erroneous\nand that it incorrectly applied the law when distinguishing Dawan. He notes that\nMahmoud’s name was mentioned in the Thietje emails and argues that the jury could\nhave inferred on that basis that Mahmoud was entangled with the currency program\nitself. The Thietje emails are not sufficient to show Mahmoud’s entanglement,\nhowever, because they reveal nothing nefarious about Mahmoud’s activities. The\nemails show Kiley claiming to correspond with Mahmoud regarding Thietje’s\ninvestment. The record nevertheless reveals an innocent explanation for Kiley’s\nmentioning Mahmoud in correspondence with Thietje—Mahmoud had represented\nThietje in a separate legal matter, which was reflective of a prior relationship between\nthe two. Moreover, the government did not offer the emails as standalone evidence\nof unlawful activity. Thietje’s money was invested in an entity that Kiley admits was\n“an apparently legitimate business unconnected to Cook’s scheme” that went\nbankrupt. The government conceded at trial that Kiley himself did not know that the\nentity would go bankrupt. Therefore, even if the jury assumed that the emails showed\nMahmoud’s involvement with Thietje’s investment, that involvement alone would not\n\n -7-\n\fhave implicated Mahmoud in the conspiracy. The district court thus did not clearly\nerr by finding the emails insufficient to raise an inference that Mahmoud was\nentangled with the conspiracy.\n\n Kiley also argues that the jury could have inferred Mahmoud’s knowledge that\nthe retainer funds were stolen from the testimony of the three attorneys who had\nreviewed the operations of the currency program in 2008 and immediately recognized\nit as fraudulent. According to Kiley, the jury could have “reasonably inferred that . . .\nMahmoud reviewed some of the same documents and asked some of the same\nquestions.” Appellant’s Br. 43. Kiley further contends that Mahmoud’s knowledge\ncould have been inferred from the allegations of fraud in the Phillips litigation, which\nwere widely publicized before Mahmoud accepted his retainer.\n\n Kiley’s suggestion that the jury could have assumed that Mahmoud had\nreviewed the same records reviewed by the testifying attorneys fails for want of any\ntrial testimony regarding Mahmoud’s review of any records associated with the\ncurrency program. Kiley also seems to argue that if the jury knew that Mahmoud was\naware of the fraud allegations against Kiley, then it would have assumed that\nMahmoud knew that the retainer money was stolen. This argument is belied by the\nfailure of the district court, the attorneys, and the parties themselves to notice the\nissue Kiley now claims was apparent to the jury. The district court thus did not\ncommit clear error when it found that the jury was not presented with sufficient\nevidence from which it could reasonably have inferred that Mahmoud knew, or\nshould have known, that the retainer money was illegitimate.\n\n Because Kiley has not met the Cuyler standard of actual conflict, we affirm the\ndistrict court’s judgment.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363542/", "author_raw": "WOLLMAN, Circuit Judge."}]}	WOLLMAN	COLLOTON	BENTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586289/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Patrick Joseph KILEY, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n\n ___________________________\n\n No. 17-2428\n ___________________________\n\n Patrick Joseph Kiley\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 17, 2018\n Filed: January 31, 2019\n ____________\n\nBefore WOLLMAN, COLLOTON, and BENTON, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\f Patrick Joseph Kiley moved to vacate, set aside, or correct his sentence\npursuant to 28 U.S.C. § 2255, claiming that he had received ineffective assistance of\ncounsel at trial. The district court denied the motion.1 We affirm.\n\n I. Background\n\n Following an eight-week trial, Kiley was found guilty of twelve counts of mail\nand wire fraud under 18 U.S.C. §§ 2, 1341, and 1343, one count of conspiracy to\ncommit mail and wire fraud under 18 U.S.C. § 1349, and two counts of money\nlaundering under 18 U.S.C. §§ 2 and 1957. We affirmed Kiley’s conviction and 240-\nmonth sentence on direct appeal. See United States v. Beckman, 787 F.3d 466, 499\n(8th Cir. 2015).\n\n The charges arose from a partial Ponzi scheme (the currency program) started\nby Trevor Cook in 2006, in which Cook and Kiley conspired with others to steal more\nthan $193 million from investors. When the conspiracy began to unravel in 2009,\ninvestors filed a civil lawsuit against several of the co-conspirators (the Phillips\nlitigation). Henry Nasif Mahmoud was retained to represent Kiley and forestall his\nbeing named as a defendant in that litigation. As a retainer, Kiley caused $100,000\nto be wired to Mahmoud’s account at a bank in Naperville, Illinois. The $100,000\ntransfer, consisting of victims’ stolen funds, served as the basis for one of Kiley’s\nmoney laundering convictions. Following Kiley’s indictment in 2011, Mahmoud\nbegan to represent him in his criminal proceedings.\n\n Before trial, the government moved for inquiry, alleging that Mahmoud\nsuffered from three conflicts of interest, two of which concerned Mahmoud’s prior\nrepresentation of two individuals, Duke Thietje and Stephen Nortier, who would be\n\n\n 1\n The Honorable Michael J. Davis, United States District Judge for the District\nof Minnesota.\n\n -2-\n\fcalled as witnesses at trial. The government also suggested that Mahmoud himself\nmight be a necessary witness at trial because of his receipt of the $100,000 retainer.\nKiley opposed the government’s motion. After a hearing, the district court\ndetermined that Mahmoud was not a necessary witness, but it required Kiley to\nexecute a waiver of the other two conflicts if he wished to be represented by\nMahmoud. Kiley waived the conflicts and was represented at trial by Mahmoud and\nlocal counsel.\n\n At trial, the government presented evidence that Mahmoud was the recipient\nof Kiley’s laundered funds. A government investigator explained how the money had\ntraveled in interstate commerce when it was wired from an account composed entirely\nof victim funds to Mahmoud’s Illinois bank. Mahmoud himself later mentioned the\nretainer when he asked a witness about Kiley’s mental condition “[i]n July of 2009,\nabout the time you sent that wire to me.”\n\n The government also produced emails in which Kiley mentioned Mahmoud’s\nname to an investor. The government introduced during Duke Thietje’s testimony an\nemail thread from 2006 in which Thietje asked Kiley for information about his\ninvestments, to which Kiley responded that he was waiting to hear back from\nMahmoud regarding Thietje’s inquiries. The jury subsequently heard testimony from\nthree attorneys that they had immediately recognized the currency program as\nfraudulent after reviewing its operations in 2008.\n\n Following Kiley’s convictions, Kiley and Mahmoud parted ways and new\ncounsel was appointed for Kiley at sentencing. Kiley thereafter began asserting that\nhe had received ineffective assistance of counsel because Mahmoud’s receipt of\nlaundered funds and entanglement in the conspiracy subjected him to potential\nliability, creating a conflict of interest. On direct appeal, we concluded that the\ndistrict court’s failure to notice and address sua sponte Kiley’s previously unraised\n\n\n\n -3-\n\fconflict-based challenge did not violate Kiley’s Fifth Amendment due process rights.\nSee Beckman, 787 F.3d at 490.\n\n Kiley then filed this § 2255 motion alleging that he was deprived of his Sixth\nAmendment right to effective representation by conflict-free counsel. Kiley argued\nthat Mahmoud’s potential liability caused his and Mahmoud’s interests to diverge\nprior to trial and that the conflict adversely affected Mahmoud’s representation,\nparticularly when the jury learned that Mahmoud had received stolen funds. During\na hearing on the motion, the district court heard testimony from a number of\nwitnesses, including a criminal defense expert and Mahmoud. In denying Kiley’s\nmotion, the court found no evidence of wrongdoing by Mahmoud and insufficient\nevidence to show that Mahmoud had exposed himself to liability by accepting the\nretainer. Finding Mahmoud’s testimony credible, the court concluded that Mahmoud\nhad neither actual nor constructive knowledge that the currency program was\nfraudulent when he accepted Kiley’s retainer in 2009. The court found that\nMahmoud’s credibility before the jury was not harmed and determined that Kiley’s\nrepresentation thus had not been adversely affected.\n\n II. Discussion\n\n We review the denial of Kiley’s § 2255 claim as a mixed question of law and\nfact, affirming the district court’s factual findings absent clear error and considering\nde novo its legal conclusions. Noe v. United States, 601 F.3d 784, 789 (8th Cir.\n2010). “[A] defendant who raised no objection at trial must demonstrate that an\nactual conflict of interest adversely affected his lawyer’s performance.” Cuyler v.\nSullivan, 446 U.S. 335, 348 (1980). “This standard does not require an ‘inquiry into\nactual conflict as something separate and apart from adverse effect.’” Noe, 601 F.3d\nat 790 (quoting Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002)). “An ‘actual\nconflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely\naffects counsel’s performance.” Mickens, 535 U.S. at 172 n.5. Before the district\n\n -4-\n\fcourt, Kiley argued that Mahmoud’s potential liability created a conflict of interest.\nOn appeal, we will examine whether the conflict adversely affected the adequacy of\nhis representation of Kiley at trial. We conclude that it did not.\n\n To show adverse effect, a defendant must show that his attorney failed to\npursue a reasonable alternate defense strategy because of the conflict. See Noe, 601\nF.3d at 790. We have also said in a concurrent representation case that when a\nconflict of interest causes both the attorney as well as the client to look less credible\nbefore the jury, the conflict has a Cuyler-type adverse effect. See Dawan v. Lockhart,\n31 F.3d 718, 722 (8th Cir. 1994). Kiley argues that both theories apply in this case.\n\n He first contends that Mahmoud should have pursued alternate defense\nstrategies at trial. Specifically, he asserts that Mahmoud should either have cross-\nexamined Thietje about the email thread in which Mahmoud was mentioned or\npursued a different defense against the money-laundering charge at issue. Mahmoud\ntestified at the § 2255 hearing that he did not cross-examine Thietje because he\nthought it would elicit testimony harmful to Kiley. The district court found this\ntestimony to be credible. Because Mahmoud’s strategy was reasonable in the\ncircumstances, Kiley has not shown an adverse effect. See Caban v. United States,\n281 F.3d 778, 786 (8th Cir. 2002) (“[I]f a reasonable attorney would have adopted the\nsame trial strategy absent a conflict, Caban cannot show McGlennen’s performance\nwas adversely affected by that conflict.” (emphasis in original)). The district court\nalso found that the evidence of Kiley’s guilt on the money-laundering charge was\n“overwhelming,” and Kiley’s expert witness testified that he would not have pursued\nthe theory which Kiley now advances. Because the district court’s findings are\nsupported by the record and are not clearly erroneous, see Johnson v. Norris, 207 F.3d\n515, 520 (8th Cir. 2000), Kiley has failed to establish that the alternate defense\nstrategy he proposes was objectively reasonable. See Noe, 601 F.3d at 791 (“Because\nthese alternate strategies, the presentation of which would strain credulity in the\n\n\n\n -5-\n\fabsence of any supporting evidence, were not objectively reasonable, Noe has not\nestablished that he was denied the effective assistance of counsel under Cuyler.”).\n\n Kiley’s primary argument, however, is that Mahmoud’s very presence at trial\nadversely affected him after Mahmoud was allegedly implicated in the charged\ncriminal conduct. Relying on Dawan, he asserts that Mahmoud’s potential\ninvolvement diminished both Mahmoud’s and his credibility and thus satisfied\nCuyler.2 In Dawan, Stout and Dawan were charged with burglary. 31 F.3d at 719.\nBoth were represented by the same attorney. Id. Stout pleaded guilty and provided\na sworn statement implicating Dawan. Id. When Stout thereafter testified at Dawan’s\ntrial, however, he denied Dawan’s involvement. Id. at 720. On cross-examination,\nStout admitted that he had lied under oath in his statement and, at the prosecution’s\nrequest, identified Dawan’s attorney as his own counsel. Id. To drive home the point\nof counsel’s earlier representation of the now-discredited Stout, the prosecutor\nphysically pointed to defense counsel’s presence in the courtroom. Id. at 722. On\nredirect, defense counsel merely asked, “But your testimony here today’s true?” Id.\nat 720.\n\n We held that Dawan had shown an adverse effect “even if counsel’s decision\nnot to question Stout about the prior statement was, in fact, purely a matter of trial\nstrategy, and even if that decision had nothing to do with the conflict of interest.” Id.\nat 722. Because the prosecutor showed the jury that “the same attorney currently\nrepresenting Dawan had also represented the witness who changed his story[,] . . .\n[t]he prosecutor’s comments made Dawan’s attorney look less credible and, by\nextension, made Dawan look less credible as well.” Id.\n\n\n 2\n Kiley argues that to avoid this adverse effect, Mahmoud should have pursued\nthe reasonable alternate strategies of withdrawing as counsel or seeking a protective\nstipulation. Because we conclude that Kiley has failed to show any adverse effect,\nwe need not offer any opinion regarding that argument.\n\n -6-\n\f We have not applied Dawan to a case of sole-client representation. We decline\nto extend Dawan here because Kiley has not shown that Mahmoud’s credibility was\ndiminished in the jury’s eyes. In Dawan, the jury could reasonably infer that the\ndefense attorney had suborned perjury. That inference went to the very heart of the\nattorney’s credibility, and, as the court held, by extension to the client’s credibility.\nIn this case, the jury learned only that Mahmoud had been paid with funds that were\nlater determined to have been stolen, which carried no hint of illegality absent\nMahmoud’s knowledge of the nature of the funds at the time he received them. See\n18 U.S.C. § 1957. The district court’s finding that Mahmoud did not know that the\nfunds were stolen is not clearly erroneous in light of the testimony presented during\nthe § 2255 hearing. Likewise so with respect to the district court’s finding that there\nwas insufficient evidence to support a reasonable inference that Mahmoud knew, or\nshould have known, that the funds at issue were illegitimate.\n\n Kiley argues that the court’s underlying factual findings were clearly erroneous\nand that it incorrectly applied the law when distinguishing Dawan. He notes that\nMahmoud’s name was mentioned in the Thietje emails and argues that the jury could\nhave inferred on that basis that Mahmoud was entangled with the currency program\nitself. The Thietje emails are not sufficient to show Mahmoud’s entanglement,\nhowever, because they reveal nothing nefarious about Mahmoud’s activities. The\nemails show Kiley claiming to correspond with Mahmoud regarding Thietje’s\ninvestment. The record nevertheless reveals an innocent explanation for Kiley’s\nmentioning Mahmoud in correspondence with Thietje—Mahmoud had represented\nThietje in a separate legal matter, which was reflective of a prior relationship between\nthe two. Moreover, the government did not offer the emails as standalone evidence\nof unlawful activity. Thietje’s money was invested in an entity that Kiley admits was\n“an apparently legitimate business unconnected to Cook’s scheme” that went\nbankrupt. The government conceded at trial that Kiley himself did not know that the\nentity would go bankrupt. Therefore, even if the jury assumed that the emails showed\nMahmoud’s involvement with Thietje’s investment, that involvement alone would not\n\n -7-\n\fhave implicated Mahmoud in the conspiracy. The district court thus did not clearly\nerr by finding the emails insufficient to raise an inference that Mahmoud was\nentangled with the conspiracy.\n\n Kiley also argues that the jury could have inferred Mahmoud’s knowledge that\nthe retainer funds were stolen from the testimony of the three attorneys who had\nreviewed the operations of the currency program in 2008 and immediately recognized\nit as fraudulent. According to Kiley, the jury could have “reasonably inferred that . . .\nMahmoud reviewed some of the same documents and asked some of the same\nquestions.” Appellant’s Br. 43. Kiley further contends that Mahmoud’s knowledge\ncould have been inferred from the allegations of fraud in the Phillips litigation, which\nwere widely publicized before Mahmoud accepted his retainer.\n\n Kiley’s suggestion that the jury could have assumed that Mahmoud had\nreviewed the same records reviewed by the testifying attorneys fails for want of any\ntrial testimony regarding Mahmoud’s review of any records associated with the\ncurrency program. Kiley also seems to argue that if the jury knew that Mahmoud was\naware of the fraud allegations against Kiley, then it would have assumed that\nMahmoud knew that the retainer money was stolen. This argument is belied by the\nfailure of the district court, the attorneys, and the parties themselves to notice the\nissue Kiley now claims was apparent to the jury. The district court thus did not\ncommit clear error when it found that the jury was not presented with sufficient\nevidence from which it could reasonably have inferred that Mahmoud knew, or\nshould have known, that the retainer money was illegitimate.\n\n Because Kiley has not met the Cuyler standard of actual conflict, we affirm the\ndistrict court’s judgment.\n ______________________________\n\n\n\n\n -8-\n[END_CASE]", "role": "user" } ]
4,586,291	Jose Alberto MORA-HIGUERA, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee	Jose Alberto Mora-Higuera v. United States	2019-01-31	17-3638	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3638\n ___________________________\n\n Jose Alberto Mora-Higuera\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 19, 2018\n Filed: January 31, 2019\n [Published]\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n In 2000, Jose Alberto Mora-Higuera pleaded guilty to four counts related to\nmethamphetamine and cocaine distribution and one count of unlawful reentry after\nremoval. The district court classified Mora-Higuera as a career offender under United\nStates Sentencing Guidelines § 4B1.1 and sentenced him to 292 months’ imprison-\nment. As relevant here, the district court determined that one of Mora-Higuera’s\n\fconvictions—California second-degree robbery—qualified as a predicate “crime of\nviolence” under § 4B1.2 of the Guidelines. We affirmed Mora-Higuera’s sentence\non appeal. See United States v. Mora-Higuera, 269 F.3d 905, 912–13 (8th Cir.\n2001).1 In June 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based\non Johnson v. United States, 135 S. Ct. 2551 (2015), but the district court2 denied his\nmotion as untimely.\n\n We review de novo the district court’s dismissal of a § 2255 motion based on\nthe statute of limitations. E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir.\n2006). Motions under § 2255 are subject to a one-year limitations period. See 28\nU.S.C. § 2255(f). In practice, this usually means that a prisoner must file a motion\nwithin one year of “the date on which the judgment of conviction becomes final.”\n§ 2255(f)(1). “He may file at a later date, however, if the motion comes within one\nyear of ‘the date on which the right asserted was initially recognized by the Supreme\nCourt, if that right has been newly recognized by the Supreme Court and made\n\n\n\n 1\n The district court subsequently reduced Mora-Higuera’s sentence to 262\nmonths’ imprisonment based on Amendment 782 to the Guidelines. See 18 U.S.C.\n§ 3582(c)(2). Mora-Higuera qualified for a reduction because the drug quantity table\nof § 2D1.1, rather than his career-offender status, set his original total offense level.\nSee United States v. Small, 599 F.3d 814, 815 (8th Cir. 2010) (“The career-offender\nprovision requires that the total offense level be the greater of the offense level in\n§ 4B1.1(b), or the offense level otherwise applicable under Chapters Two and Three\nof the guidelines based on the underlying conduct.”); see also United States v.\nThomas, 775 F.3d 982, 982–83 (8th Cir. 2014) (per curiam) (explaining that\nAmendment 782 is applicable if the offense level is calculated under § 2D1.1, but\ninapplicable if it is based on career-offender status). After Amendment 782, however,\nboth Mora-Higuera’s total offense level and his criminal history category were driven\nby his career-offender status.\n 2\n The Honorable Donovan W. Frank, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\fretroactively applicable to cases on collateral review.’” Russo v. United States, 902\nF.3d 880, 882 (8th Cir. 2018) (quoting 28 U.S.C. § 2255(f)(3)).\n\n Mora-Higuera argues that his motion is timely under § 2255(f)(3) because he\nfiled it within one year of the Supreme Court’s decision in Johnson, which invalidated\nthe residual clause of the Armed Career Criminal Act. Mora-Higuera argues that\nJohnson also effectively invalidated the residual clause of § 4B1.2(a)(2) of the\nmandatory Guidelines that were in effect at the time of his original sentencing.\n\n Mora-Higuera’s arguments are foreclosed by Russo. In that case, we held that\nthe right Mora-Higuera asserts here—“a right under the Due Process Clause to be\nsentenced without reference to the residual clause of § 4B1.2(a)(2) under the\nmandatory guidelines”—was “not dictated by Johnson.” 902 F.3d at 882–83. To the\ncontrary, we reasoned, “[i]t is reasonably debatable whether Johnson’s holding\nregarding the ACCA extends to the former mandatory guidelines,” and, accordingly,\nthe petitioner in that case could not benefit from a renewed limitations period under\n§ 2255(f)(3). Id. at 883. So too here.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363544/", "author_raw": "PER CURIAM"}]}	SHEPHERD	KELLY	STRAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586291/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jose Alberto MORA-HIGUERA, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3638\n ___________________________\n\n Jose Alberto Mora-Higuera\n\n lllllllllllllllllllllPetitioner - Appellant\n\n v.\n\n United States of America\n\n lllllllllllllllllllllRespondent - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: October 19, 2018\n Filed: January 31, 2019\n [Published]\n ____________\n\nBefore SHEPHERD, KELLY, and STRAS, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n In 2000, Jose Alberto Mora-Higuera pleaded guilty to four counts related to\nmethamphetamine and cocaine distribution and one count of unlawful reentry after\nremoval. The district court classified Mora-Higuera as a career offender under United\nStates Sentencing Guidelines § 4B1.1 and sentenced him to 292 months’ imprison-\nment. As relevant here, the district court determined that one of Mora-Higuera’s\n\fconvictions—California second-degree robbery—qualified as a predicate “crime of\nviolence” under § 4B1.2 of the Guidelines. We affirmed Mora-Higuera’s sentence\non appeal. See United States v. Mora-Higuera, 269 F.3d 905, 912–13 (8th Cir.\n2001).1 In June 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based\non Johnson v. United States, 135 S. Ct. 2551 (2015), but the district court2 denied his\nmotion as untimely.\n\n We review de novo the district court’s dismissal of a § 2255 motion based on\nthe statute of limitations. E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir.\n2006). Motions under § 2255 are subject to a one-year limitations period. See 28\nU.S.C. § 2255(f). In practice, this usually means that a prisoner must file a motion\nwithin one year of “the date on which the judgment of conviction becomes final.”\n§ 2255(f)(1). “He may file at a later date, however, if the motion comes within one\nyear of ‘the date on which the right asserted was initially recognized by the Supreme\nCourt, if that right has been newly recognized by the Supreme Court and made\n\n\n\n 1\n The district court subsequently reduced Mora-Higuera’s sentence to 262\nmonths’ imprisonment based on Amendment 782 to the Guidelines. See 18 U.S.C.\n§ 3582(c)(2). Mora-Higuera qualified for a reduction because the drug quantity table\nof § 2D1.1, rather than his career-offender status, set his original total offense level.\nSee United States v. Small, 599 F.3d 814, 815 (8th Cir. 2010) (“The career-offender\nprovision requires that the total offense level be the greater of the offense level in\n§ 4B1.1(b), or the offense level otherwise applicable under Chapters Two and Three\nof the guidelines based on the underlying conduct.”); see also United States v.\nThomas, 775 F.3d 982, 982–83 (8th Cir. 2014) (per curiam) (explaining that\nAmendment 782 is applicable if the offense level is calculated under § 2D1.1, but\ninapplicable if it is based on career-offender status). After Amendment 782, however,\nboth Mora-Higuera’s total offense level and his criminal history category were driven\nby his career-offender status.\n 2\n The Honorable Donovan W. Frank, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\fretroactively applicable to cases on collateral review.’” Russo v. United States, 902\nF.3d 880, 882 (8th Cir. 2018) (quoting 28 U.S.C. § 2255(f)(3)).\n\n Mora-Higuera argues that his motion is timely under § 2255(f)(3) because he\nfiled it within one year of the Supreme Court’s decision in Johnson, which invalidated\nthe residual clause of the Armed Career Criminal Act. Mora-Higuera argues that\nJohnson also effectively invalidated the residual clause of § 4B1.2(a)(2) of the\nmandatory Guidelines that were in effect at the time of his original sentencing.\n\n Mora-Higuera’s arguments are foreclosed by Russo. In that case, we held that\nthe right Mora-Higuera asserts here—“a right under the Due Process Clause to be\nsentenced without reference to the residual clause of § 4B1.2(a)(2) under the\nmandatory guidelines”—was “not dictated by Johnson.” 902 F.3d at 882–83. To the\ncontrary, we reasoned, “[i]t is reasonably debatable whether Johnson’s holding\nregarding the ACCA extends to the former mandatory guidelines,” and, accordingly,\nthe petitioner in that case could not benefit from a renewed limitations period under\n§ 2255(f)(3). Id. at 883. So too here.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -3-\n[END_CASE]", "role": "user" } ]
4,586,292	GREAT AMERICAN INSURANCE COMPANY, Plaintiff - Appellee v. Jonathan L. RUSSELL, Defendant - Appellant	Great American Insurance Co. v. Jonathan Russell	2019-01-31	17-2441	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2441\n ___________________________\n\n Great American Insurance Company\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jonathan L. Russell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - St. Joseph\n ____________\n\n Submitted: November 13, 2018\n Filed: January 31, 2019\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nKELLY, Circuit Judge.\n\n Jonathan Russell appeals the district court’s vacatur of the arbitration award\nhe received against his insurer, Great American Insurance Company, for wrongfully\ndenying his claim for damage to his 2013 corn crop. Because the arbitrators rendered\na sufficiently mutual, final, and definite award, vacatur was improper. We\naccordingly vacate the district court’s judgment and remand for further proceedings.\n\f I\n\n Russell submitted claims to Great American for damage to his 2013 corn and\nsoybean crops in Atchison, Holt, and Nodaway counties in Missouri. Russell’s crop\ninsurance policy is governed by federal regulations; 7 C.F.R. §§ 457.8 and 457.113\n(2013) form the policy’s essential terms. After Great American denied his claims,\nRussell invoked the arbitration provision in § 457.8 ¶ 20. Although the regulations\nimpose certain limitations on the powers of arbitrators assessing federally-reinsured\ncrop insurance claims like Russell’s, arbitral awards are still governed by the Federal\nArbitration Act. See, e.g., J.O.C. Farms, L.L.C. v. Fireman’s Fund Ins. Co., 737 F.\nApp’x 652, 655 (4th Cir. 2018) (per curiam); Davis v. Producers Agric. Ins. Co., 762\nF.3d 1276, 1283–85 (11th Cir. 2014).\n\n Following an evidentiary hearing, the three-arbitrator panel awarded Russell\n$1,433,008 for damage to his corn crop in the three counties but denied his soybean\nclaim. The panel found that Great American’s denial of Russell’s corn claim—based\non (1) Great American’s inability to substantiate an insurable cause of loss and\n(2) Russell’s failure to provide adequate records to establish production “by\nunit”—was erroneous. After reviewing the evidence, the panel concluded that\nRussell’s accounts of insurable crop damage were independently verified but that\nGreat American had failed to conduct a timely on-site inspection until after harvest\nwas completed. The arbitrators credited testimony of witnesses that the crops in\nquestion experienced significant damage from drought, rootworm, and heavy winds.\nAs to the second ground for denial, the panel noted that Great American had\n“collaps[ed] all acres farmed by Russell into a single unit pursuant to policy\nprovisions.” The panel accepted the analysis of Russell’s damages expert, who\ncalculated the total damage to the corn crop as $1,433,008. Great American did not\nchallenge this calculation or offer a different calculation.\n\n\n\n -2-\n\f On May 25, 2016, Great American moved to vacate or modify the award. The\npanel denied the motion as untimely because the award issued on February 23, 2016,\nand the arbitration association’s rules require that any motion to correct computa-\ntional errors be filed within 20 days of the award. Great American then appealed the\naward under 9 U.S.C. § 10(a)(4), which permits a district court to vacate an\narbitration award if “the arbitrators exceeded their powers, or so imperfectly executed\nthem that a mutual, final, and definite award upon the subject matter submitted was\nnot made.”\n\n Great American argued that the arbitrators “imperfectly executed” their powers\nbecause they failed to comply with the regulations governing the arbitration\nproceeding. The applicable regulations required the panel to provide “a written\nstatement describing the issues in dispute, the factual findings, the determinations and\nthe amount and basis for any award and breakdown by claim for any award.”\n7 C.F.R. § 457.8 ¶ 20(a)(2). “Failure of the arbitrator to provide such written\nstatement will result in the nullification of all determinations of the arbitrator.” Id.\nGreat American posited that the panel (1) did not break down the award by county,\nwhich was required by the “breakdown by claim” language; (2) did not explain how\nthe award amount was calculated; and (3) made impermissible interpretations of\napplicable regulations.\n\n The district court agreed that the panel had failed to properly break down the\naward “by claim,” nullifying the entire award. The court based its decision on\n§ 457.113 ¶ 11(a), which states in part that the insurer “will determine [the insured’s]\nloss on a unit basis,” and on § 457.8 ¶ 1, which defines an enterprise unit as “[a]ll\ninsurable acreage of the same insured crop . . . in the county in which you have a\nshare on the date coverage begins for the crop year.” Relying on this language, the\ndistrict court concluded that the arbitration panel was required to break down the\naward into separate awards for each of the three counties to provide the required\n“breakdown by claim.” It vacated the award and did not address Great American’s\n\n -3-\n\fargument that the panel made improper interpretations of the regulations. Because\nthe district court’s order deals entirely with questions of law, we review it de novo.\nMidAmerican Energy Co. v. Int’l Bhd. of Elec. Workers Local 499, 345 F.3d 616,\n619 (8th Cir. 2003).\n\n II\n\n The Federal Arbitration Act “is a congressional declaration of a liberal federal\npolicy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury\nConstr. Corp., 460 U.S. 1, 24 (1983). Accordingly, a court’s review of an arbitration\naward is “very limited.” Gas Aggregation Servs., Inc. v. Howard Avista Energy,\nLLC, 319 F.3d 1060, 1064 (8th Cir. 2003). “[A]s long as the arbitrator is even\narguably construing or applying the contract and acting within the scope of his\nauthority, that a court is convinced he committed serious error does not suffice to\noverturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29,\n38 (1987).\n\n We are not convinced that the arbitration panel’s failure to break down the\naward by county means that it “so imperfectly executed” its powers such that it\nrendered no “mutual, final, and definite award.” 9 U.S.C. § 10(a)(4). The award\nneeded only to “describ[e] the issues in dispute, the factual findings, the determina-\ntions and the amount and basis for any award and breakdown by claim for any\naward.” 7 C.F.R. § 457.8 ¶ 20(a)(2). “Claim for indemnity” is defined as “[a] claim\nmade on [the insurer’s] form that contains the information necessary to pay the\nindemnity.” Id. ¶ 1. Russell submitted a single claim covering both his corn and\nsoybean crops, and Great American assigned it a single claim number. Nothing in the\nregulations required the panel to segregate this claim into multiple separate claims.\n\n Great American correctly notes that applicable regulations require the insurer\nto “determine [the] loss on a unit basis,” § 457.113 ¶ 11(a), and units cannot cover\n\n -4-\n\fmore than one county, § 457.8 ¶ 1 (defining “enterprise unit”). But the arbitration\npanel was obligated to break down its award only by claim, not by unit, and Great\nAmerican points to no regulation equating claims and units. Moreover, the arbitration\npanel concluded that Great American had “collaps[ed] all acres farmed by Russell\ninto a single unit pursuant to policy provisions.” There appears to be no reason why\nthe arbitration panel could not accept Great American’s decision to treat Russell’s\nclaim as singular when rendering its decision. Indeed, it appears that Great American\nraised no objection to this approach until its untimely motion to vacate or modify the\naward.\n\n Although few cases analyze the applicable crop insurance regulations in depth,\nthose that do support the panel’s approach. In one case, the arbitrator combined its\nanalysis for twenty-three farming units into three groups, and denied the claims for\neach group on different grounds. See Farm Mgmt. Co. v. Rural Cmty. Ins. Agency,\nNo. 14-CV-5024-EFS, 2015 WL 1809789, at 2 (E.D. Wash. Apr. 21, 2015). The\nreviewing court found no error with this approach, even though the arbitrator did not\nbreak down its analysis unit-by-unit. See id. at 6.\n\n We also find that the panel’s written explanation for the award amount was\nadequate. Although the panel simply adopted the calculation of Russell’s expert,\nGreat American failed to contest this calculation or provide its own alternative at the\nevidentiary hearing. Other courts have affirmed arbitral awards issued under the\nsame regulations even though the arbitrator did not provide any calculations\nsupporting its award amount. See, e.g., Great Am. Ins. Co. v. Doan, No.\n5:11-CV-342-OC-34PRL, 2012 WL 13098715, at 13–14 (M.D. Fla. Sept. 25, 2012);\nGarnett v. NAU Country Ins. Co., No. 5:09-CV-00144-R, 2009 WL 3644762, at 3\n(W.D. Ky. Oct. 27, 2009). There is no requirement that the arbitrator’s decision be\nparticularly detailed; so long as it adequately explains the disposition of each claim\nat issue, it should be upheld. See Green v. Ameritech Corp., 200 F.3d 967, 976 (6th\nCir. 2000).\n\n -5-\n\f Accordingly, the district court’s decision vacating the arbitration award is\nvacated. The case is remanded for further consideration of Great American’s\nalternative argument that the arbitration panel’s decision rests on improper\ninterpretations of the applicable regulations, which the district court did not address\nin the first instance.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363545/", "author_raw": "KELLY, Circuit Judge."}]}	GRUENDER	KELLY	GRASZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586292/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: GREAT AMERICAN INSURANCE COMPANY, Plaintiff - Appellee v. Jonathan L. RUSSELL, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Eighth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2441\n ___________________________\n\n Great American Insurance Company\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jonathan L. Russell\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - St. Joseph\n ____________\n\n Submitted: November 13, 2018\n Filed: January 31, 2019\n ____________\n\nBefore GRUENDER, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nKELLY, Circuit Judge.\n\n Jonathan Russell appeals the district court’s vacatur of the arbitration award\nhe received against his insurer, Great American Insurance Company, for wrongfully\ndenying his claim for damage to his 2013 corn crop. Because the arbitrators rendered\na sufficiently mutual, final, and definite award, vacatur was improper. We\naccordingly vacate the district court’s judgment and remand for further proceedings.\n\f I\n\n Russell submitted claims to Great American for damage to his 2013 corn and\nsoybean crops in Atchison, Holt, and Nodaway counties in Missouri. Russell’s crop\ninsurance policy is governed by federal regulations; 7 C.F.R. §§ 457.8 and 457.113\n(2013) form the policy’s essential terms. After Great American denied his claims,\nRussell invoked the arbitration provision in § 457.8 ¶ 20. Although the regulations\nimpose certain limitations on the powers of arbitrators assessing federally-reinsured\ncrop insurance claims like Russell’s, arbitral awards are still governed by the Federal\nArbitration Act. See, e.g., J.O.C. Farms, L.L.C. v. Fireman’s Fund Ins. Co., 737 F.\nApp’x 652, 655 (4th Cir. 2018) (per curiam); Davis v. Producers Agric. Ins. Co., 762\nF.3d 1276, 1283–85 (11th Cir. 2014).\n\n Following an evidentiary hearing, the three-arbitrator panel awarded Russell\n$1,433,008 for damage to his corn crop in the three counties but denied his soybean\nclaim. The panel found that Great American’s denial of Russell’s corn claim—based\non (1) Great American’s inability to substantiate an insurable cause of loss and\n(2) Russell’s failure to provide adequate records to establish production “by\nunit”—was erroneous. After reviewing the evidence, the panel concluded that\nRussell’s accounts of insurable crop damage were independently verified but that\nGreat American had failed to conduct a timely on-site inspection until after harvest\nwas completed. The arbitrators credited testimony of witnesses that the crops in\nquestion experienced significant damage from drought, rootworm, and heavy winds.\nAs to the second ground for denial, the panel noted that Great American had\n“collaps[ed] all acres farmed by Russell into a single unit pursuant to policy\nprovisions.” The panel accepted the analysis of Russell’s damages expert, who\ncalculated the total damage to the corn crop as $1,433,008. Great American did not\nchallenge this calculation or offer a different calculation.\n\n\n\n -2-\n\f On May 25, 2016, Great American moved to vacate or modify the award. The\npanel denied the motion as untimely because the award issued on February 23, 2016,\nand the arbitration association’s rules require that any motion to correct computa-\ntional errors be filed within 20 days of the award. Great American then appealed the\naward under 9 U.S.C. § 10(a)(4), which permits a district court to vacate an\narbitration award if “the arbitrators exceeded their powers, or so imperfectly executed\nthem that a mutual, final, and definite award upon the subject matter submitted was\nnot made.”\n\n Great American argued that the arbitrators “imperfectly executed” their powers\nbecause they failed to comply with the regulations governing the arbitration\nproceeding. The applicable regulations required the panel to provide “a written\nstatement describing the issues in dispute, the factual findings, the determinations and\nthe amount and basis for any award and breakdown by claim for any award.”\n7 C.F.R. § 457.8 ¶ 20(a)(2). “Failure of the arbitrator to provide such written\nstatement will result in the nullification of all determinations of the arbitrator.” Id.\nGreat American posited that the panel (1) did not break down the award by county,\nwhich was required by the “breakdown by claim” language; (2) did not explain how\nthe award amount was calculated; and (3) made impermissible interpretations of\napplicable regulations.\n\n The district court agreed that the panel had failed to properly break down the\naward “by claim,” nullifying the entire award. The court based its decision on\n§ 457.113 ¶ 11(a), which states in part that the insurer “will determine [the insured’s]\nloss on a unit basis,” and on § 457.8 ¶ 1, which defines an enterprise unit as “[a]ll\ninsurable acreage of the same insured crop . . . in the county in which you have a\nshare on the date coverage begins for the crop year.” Relying on this language, the\ndistrict court concluded that the arbitration panel was required to break down the\naward into separate awards for each of the three counties to provide the required\n“breakdown by claim.” It vacated the award and did not address Great American’s\n\n -3-\n\fargument that the panel made improper interpretations of the regulations. Because\nthe district court’s order deals entirely with questions of law, we review it de novo.\nMidAmerican Energy Co. v. Int’l Bhd. of Elec. Workers Local 499, 345 F.3d 616,\n619 (8th Cir. 2003).\n\n II\n\n The Federal Arbitration Act “is a congressional declaration of a liberal federal\npolicy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury\nConstr. Corp., 460 U.S. 1, 24 (1983). Accordingly, a court’s review of an arbitration\naward is “very limited.” Gas Aggregation Servs., Inc. v. Howard Avista Energy,\nLLC, 319 F.3d 1060, 1064 (8th Cir. 2003). “[A]s long as the arbitrator is even\narguably construing or applying the contract and acting within the scope of his\nauthority, that a court is convinced he committed serious error does not suffice to\noverturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29,\n38 (1987).\n\n We are not convinced that the arbitration panel’s failure to break down the\naward by county means that it “so imperfectly executed” its powers such that it\nrendered no “mutual, final, and definite award.” 9 U.S.C. § 10(a)(4). The award\nneeded only to “describ[e] the issues in dispute, the factual findings, the determina-\ntions and the amount and basis for any award and breakdown by claim for any\naward.” 7 C.F.R. § 457.8 ¶ 20(a)(2). “Claim for indemnity” is defined as “[a] claim\nmade on [the insurer’s] form that contains the information necessary to pay the\nindemnity.” Id. ¶ 1. Russell submitted a single claim covering both his corn and\nsoybean crops, and Great American assigned it a single claim number. Nothing in the\nregulations required the panel to segregate this claim into multiple separate claims.\n\n Great American correctly notes that applicable regulations require the insurer\nto “determine [the] loss on a unit basis,” § 457.113 ¶ 11(a), and units cannot cover\n\n -4-\n\fmore than one county, § 457.8 ¶ 1 (defining “enterprise unit”). But the arbitration\npanel was obligated to break down its award only by claim, not by unit, and Great\nAmerican points to no regulation equating claims and units. Moreover, the arbitration\npanel concluded that Great American had “collaps[ed] all acres farmed by Russell\ninto a single unit pursuant to policy provisions.” There appears to be no reason why\nthe arbitration panel could not accept Great American’s decision to treat Russell’s\nclaim as singular when rendering its decision. Indeed, it appears that Great American\nraised no objection to this approach until its untimely motion to vacate or modify the\naward.\n\n Although few cases analyze the applicable crop insurance regulations in depth,\nthose that do support the panel’s approach. In one case, the arbitrator combined its\nanalysis for twenty-three farming units into three groups, and denied the claims for\neach group on different grounds. See Farm Mgmt. Co. v. Rural Cmty. Ins. Agency,\nNo. 14-CV-5024-EFS, 2015 WL 1809789, at 2 (E.D. Wash. Apr. 21, 2015). The\nreviewing court found no error with this approach, even though the arbitrator did not\nbreak down its analysis unit-by-unit. See id. at 6.\n\n We also find that the panel’s written explanation for the award amount was\nadequate. Although the panel simply adopted the calculation of Russell’s expert,\nGreat American failed to contest this calculation or provide its own alternative at the\nevidentiary hearing. Other courts have affirmed arbitral awards issued under the\nsame regulations even though the arbitrator did not provide any calculations\nsupporting its award amount. See, e.g., Great Am. Ins. Co. v. Doan, No.\n5:11-CV-342-OC-34PRL, 2012 WL 13098715, at 13–14 (M.D. Fla. Sept. 25, 2012);\nGarnett v. NAU Country Ins. Co., No. 5:09-CV-00144-R, 2009 WL 3644762, at 3\n(W.D. Ky. Oct. 27, 2009). There is no requirement that the arbitrator’s decision be\nparticularly detailed; so long as it adequately explains the disposition of each claim\nat issue, it should be upheld. See Green v. Ameritech Corp., 200 F.3d 967, 976 (6th\nCir. 2000).\n\n -5-\n\f Accordingly, the district court’s decision vacating the arbitration award is\nvacated. The case is remanded for further consideration of Great American’s\nalternative argument that the arbitration panel’s decision rests on improper\ninterpretations of the applicable regulations, which the district court did not address\nin the first instance.\n ______________________________\n\n\n\n\n -6-\n[END_CASE]", "role": "user" } ]
4,578,302		Rahinah Ibrahim v. US Dept. of Homeland Security	2019-01-02	14-16161	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith, Jr., N. Randy Smith, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n DR. RAHINAH IBRAHIM, an Nos. 14-16161\n individual, 14-17272\n Plaintiff-Appellant,\n D.C. No.\n v. 3:06-cv-545-\n WHA\n U.S. DEPARTMENT OF HOMELAND\n SECURITY; TERRORIST SCREENING\n CENTER; FEDERAL BUREAU OF OPINION\n INVESTIGATION; CHRISTOPHER A.\n WRAY, * in his official capacity as\n Director of the Federal Bureau of\n Investigation; KIRSTJEN NIELSEN, in\n her official capacity as Secretary of\n the Department of Homeland\n Security; MATTHEW G. WHITAKER,\n in his official capacity as Acting\n Attorney General; CHARLES H.\n KABLE IV, in his official capacity as\n Director of the Terrorist Screening\n Center; JAY S. TABB, JR., in his\n official capacity as Executive\n Assistant Director of the FBI’s\n National Security Branch; NATIONAL\n COUNTERTERRORISM CENTER;\n\n \n Current cabinet members and other federal officials have been\nsubstituted for their predecessors pursuant to Rule 43(c)(2) of the Federal\nRules of Appellate Procedure.\n\n2 IBRAHIM V. DHS\n\n RUSSELL “RUSS” TRAVERS, in his\n official capacity as Director of the\n National Counterterrorism Center;\n DEPARTMENT OF STATE; MICHAEL R.\n POMPEO, in his official capacity as\n Secretary of State; UNITED STATES\n OF AMERICA,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted En Banc March 20, 2018\n San Francisco, California\n\n Filed January 2, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and M. Margaret\n McKeown, Kim McLane Wardlaw, William A. Fletcher,\nMarsha S. Berzon, Consuelo M. Callahan, Milan D. Smith,\n Jr., N. Randy Smith, Morgan Christen, Jacqueline H.\n Nguyen, and Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Wardlaw;\nPartial Concurrence and Partial Dissent by Judge Callahan\n\n IBRAHIM V. DHS 3\n\n SUMMARY \n\n\n Equal Access to Justice Act / Attorneys’ Fees\n\n The en banc court reversed the district court, vacated the\naward of attorneys’ fees under the Equal Access to Justice\nAct (“EAJA”), and remanded with instructions to recalculate\nthe fees for the civil rights law firm that represented\nDr. Rahinah Ibrahim in her successful challenge to her\ninclusion on the Transportation Security Administration’s\n“No Fly” list.\n\n The en banc court held that when a district court awards\ncomplete relief on one claim, rendering it unnecessary to\nreach alternative claims, the alternative claims cannot be\ndeemed unsuccessful for the purpose of calculating a fee\naward. The en banc court rejected the post hoc “mutual\nexclusivity” approach to determining whether\n“unsuccessful” claims were related to successful claims and\nreaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983),\nsets forth the correct standard of “relatedness” for claims\nunder EAJA. The en banc court reaffirmed that in evaluating\nwhether the government’s position is substantially justified,\nthe court looks at whether the government’s and the\nunderlying agency’s positions were justified as a whole and\nnot at each stage of the litigation.\n\n Applying these standards, the en banc court held that the\nvarious stages at issue here were all part of one litigation in\nfederal court where the case was never returned to an agency\nfor further proceedings, and, therefore, Corbin v. Apfel,\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n4 IBRAHIM V. DHS\n\n149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly\ncomplex cases, a court may appropriately determine whether\nthe government was substantially justified at each stage of\nthe litigation and make a fee award apportioned to those\nseparate determinations), did not apply. The en banc court\nheld that the district court erred in its piecemeal approach to\nsubstantial justification, and concluded that neither the\nagency’s conduct nor the government’s litigation position\nwas substantially justified.\n\n The en banc court held that the district court erred in\ndetermining that Dr. Ibrahim was entitled to reasonable fees\nand expenses with respect to only her procedural due process\nclaim and her related substantive due process and\nAdministrative Procedure Act claims, and in disallowing\ncounsel’s reasonable fees and expenses on the unreached,\nand “unrelated,” First Amendment and equal protection\nclaims. The en banc court held that the district court clearly\nerred in holding that Dr. Ibrahim’s unreached claims were\nunsuccessful. The en banc court held that all of\nDr. Ibrahim’s claim arose from a “common course of\nconduct” and were therefore related under Hensley. The en\nbanc court further held that the district court erred in finding\nthat Dr. Ibrahim had only “limited” success, and concluded\nthat Dr. Ibrahim satisfied Hensley’s second prong that the\nplaintiff achieve “a level of success that makes the hours\nreasonably expended a satisfactory basis for making a fee\naward.” Hensley, 461 U.S. at 434. The en banc court found\nthat Dr. Ibrahim achieved excellent results and was entitled\nto reasonable fees consistent with that outcome.\n\n Although generally attorneys’ fees are capped under\nEAJA at $125 per hour, where the government acts in bad\nfaith, a court may assess fees and expenses to the extent a\nparty would be liable under the common law. The en banc\n\n IBRAHIM V. DHS 5\n\ncourt concluded that the district court’s ruling that the\ngovernment did not act in bad faith was in error because it\nwas incomplete where the district court did not consider the\n“totality” of the government’s conduct, including conduct\nprelitigation and during trial.\n\n The en banc court remanded to allow the district court to\nmake a bad faith determination under the correct legal\nstandard in the first instance, and to re-determine the fee\naward.\n\n Judge Callahan, joined by Judges N.R. Smith and", "author": "WARDLAW, Circuit Judge:"}, {"type": "concurrence", "author": "Nguyen", "text": "Nguyen, concurred in part and dissented in part. Judge\nCallahan agreed with the majority that Dr. Ibrahim was the\nprevailing party, and that the test for substantial justification\nis an inclusive one; and that Dr. Ibrahim’s equal protection\nand First Amendment claims were sufficiently related to her\nother claims such that the district court’s failure to reach\nthose issues did not justify the district court’s curtailment of\nattorneys’ fees. Judge Callahan would hold that the majority\nexceeded its role as an appellate court by determining in the\nfirst instance that the government’s position was not\nsubstantially justified; and dissented from the majority’s\nsetting aside of the district court’s finding that the defendants\ndid not proceed in bad faith. Judge Callahan would affirm\nthe district court’s limitation of Dr. Ibrahim’s attorneys’ fees\nto the statutory rate set by EAJA.\n\n6 IBRAHIM V. DHS\n\n COUNSEL\n\nMarwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi,\nChristine Peek, Elizabeth Pipkin, and James McManis,\nMcManis Faulkner, San Jose, California, for Plaintiff-\nAppellant.\n\nJoshua Waldman (argued) and Sharon Swingle, Appellate\nStaff, Civil Division, United States Department of Justice,\nWashington, D.C., for Defendants-Appellees.\n\nChet A. Kronenberg and JoAnne S. Jennings, Simpson\nThacher & Bartlett LLP, Los Angeles, California, for Amici\nCuriae American Civil Liberties Union of California, Asian\nAmericans Advancing Justice-Asian Law Caucus, Asian\nAmericans Advancing Justice-Los Angeles, Center for\nConstitutional Rights, Electronic Frontier Foundation, and\nNational Immigration Law Center.\n\n IBRAHIM V. DHS 7\n\n OPINION\n\nWARDLAW, Circuit Judge:\n\n This appeal arises out of Dr. Rahinah Ibrahim’s 2005\ndetention at the San Francisco International Airport (SFO)\nwhile en route to Malaysia with a stopover in Hawaii for a\nStanford University conference. U.S. authorities detained\nDr. Ibrahim because her name was on the Transportation\nSecurity Administration’s (TSA) “No Fly” list (the No Fly\nlist). After almost a decade of vigorous and fiercely\ncontested litigation against our state and federal\ngovernments and their officials, including two appeals to our\ncourt and a weeklong trial, Dr. Ibrahim won a complete\nvictory. In 2014, the federal government at last conceded\nthat she poses no threat to our safety or national security, has\nnever posed a threat to national security, and should never\nhave been placed on the No Fly list. Through Dr. Ibrahim’s\npersistent discovery efforts, which were met with stubborn\nopposition at every turn, she learned that she had been\nnominated to the No Fly list and the Interagency Border\nInspection System (IBIS), which are stored within the\nnational Terrorist Screening Database (TSDB)—the federal\ngovernment’s centralized watchlist of known and suspected\nterrorists—and which serve as a basis for selection for other\ncounterterrorism sub-lists. From there, a Federal Bureau of\nInvestigation (FBI) special agent so misread a nomination\nform that he accidentally nominated Dr. Ibrahim to the No\nFly list, intending to do the opposite, as the No Fly list is\nsupposed to be comprised of individuals who pose a threat\nto civil aviation.\n\n But Dr. Ibrahim did not accomplish this litigation victory\non her own. Indeed, since she was finally allowed to travel\nto Malaysia in 2005, the United States government has never\nallowed her to return to the United States, not even to attend\n\n8 IBRAHIM V. DHS\n\nthe trial that cleared her name. Throughout this hard-fought\nlitigation, the civil rights law firm McManis Faulkner has\nrepresented her interests without pay, but with the\nunderstanding that if it prevailed on her behalf, it could\nrecover reasonable attorneys’ fees and expenses, in addition\nto costs, pursuant to the Equal Access to Justice Act (EAJA),\n28 U.S.C. § 2412.\n\n The firm filed a motion for an award of attorneys’ fees\nand expenses, supported by documentary evidence and\ndeclarations, which the government opposed. The motion\nwas met with the “compliments” of the district court and\ndrastic reductions in the claimed fees, by almost ninety\npercent. In reducing the claimed legal fees, the district court\nmisapplied Commissioner, I.N.S. v. Jean, 496 U.S. 154\n(1990), by taking a piecemeal approach to determining\nwhether the government’s position was “substantially\njustified,” and so disallowing fees for particular stages of\nproceedings rather than examining the record as a whole and\nmaking a single finding. The district court further erred by\ntreating alternative claims or theories for the same relief Dr.\nIbrahim achieved—which the court, therefore, did not\nreach—as unsuccessful, and reducing fees for work pursuing\nthose claims, contrary to Hensley v. Eckerhart, 461 U.S. 424\n(1983). These errors were compounded by the now-\nwithdrawn three-judge panel decision, which misapplied the\nHensley standard for determining “relatedness,” i.e.,\nwhether the claims arose from a “common course of\nconduct,” to wrongly conclude that because the claims in the\nalternative were “mutually exclusive,” they were not related.\nIn point of fact, all of the legal theories pursued on behalf of\nDr. Ibrahim challenged the same and only government\naction at the heart of this lawsuit: the government’s\nplacement of her name on the No Fly list without any basis\nfor doing so. Finally, our prior precedent, which we now\n\n IBRAHIM V. DHS 9\n\nreaffirm, requires that when a district court analyzes whether\nthe government acted in bad faith, it must consider the\ntotality of the circumstances, including both the underlying\nagency action and the litigation in defense of that action.\n\n We reheard this appeal en banc to clarify the standards\napplicable to awards of attorneys’ fees under the EAJA. We\nnow reverse, vacate the award of attorneys’ fees, and remand\nwith instructions to recalculate fees consistent with this\nopinion. 1\n\n I.\n\n A. Dr. Ibrahim\n\n Dr. Ibrahim is a Muslim woman, scholar, wife, and\nmother of four children. She lived in the United States for\nthirteen years pursuing undergraduate and post-graduate\nstudies. Here’s what happened to Dr. Ibrahim, as the events\nthat ultimately excluded her from this country unraveled:\n\n In early January 2005, Dr. Ibrahim planned to fly from\nSan Francisco to Hawaii and then to Los Angeles and on to\nKuala Lumpur. She intended to attend a conference in\nHawaii sponsored by Stanford University from January 3 to\nJanuary 6, at which she would present the results of her\ndoctoral research. She was then working toward a Ph.D. in\nconstruction engineering and management at Stanford\nUniversity under an F-1 student visa. On January 2, 2005,\nDr. Ibrahim arrived at SFO with her daughter, Rafeah, then\nfourteen. At the time, Dr. Ibrahim was still recovering from\n\n\n 1\n For ease of reading, attached as Appendix A is a glossary of the\nnumerous acronyms referenced throughout this opinion.\n\n10 IBRAHIM V. DHS\n\na hysterectomy performed three months earlier and required\nwheelchair assistance.\n\n When Dr. Ibrahim arrived at the United Airlines counter,\nthe airline staff discovered her name on the No Fly list and\ncalled the police. Dr. Ibrahim was handcuffed and arrested.\nShe was escorted to a police car (while handcuffed) and\ntransported to a holding cell by male police officers, where\nshe was searched for weapons and held for approximately\ntwo hours. Paramedics were called to administer medication\nrelated to her surgery. No one explained to Dr. Ibrahim the\nreasons for her arrest and detention.\n\n Eventually, she was released and an aviation security\ninspector with the Department of Homeland Security (DHS)\ninformed Dr. Ibrahim that her name had been removed from\nthe No Fly list. The police were satisfied that there were\ninsufficient grounds for making a criminal complaint against\nher. Dr. Ibrahim was told that she could fly to Hawaii the\nnext day.\n\n The next day she returned to SFO where an unspecified\nperson told her that she was again—or still—on the No Fly\nlist. She was nonetheless allowed to fly, but was issued an\nunusual red boarding pass with the letters “SSSS,” meaning\nSecondary Security Screening Selection, printed on it. Dr.\nIbrahim flew to Hawaii and presented her doctoral findings\nat the Stanford conference. From there, she flew to Los\nAngeles and then on to Kuala Lumpur.\n\n Two months later, on March 10, 2005, Dr. Ibrahim was\nscheduled to return to Stanford University to complete her\nwork on her Ph.D. and to meet with an individual who was\none of her Stanford dissertation advisors and also her friend,\nProfessor Boyd Paulson, who was very ill. But when she\narrived at the Kuala Lumpur International Airport, she was\n\n IBRAHIM V. DHS 11\n\nnot permitted to board the flight to the United States. She\nwas told by one ticketing agent that she would have to wait\nfor clearance from the U.S. Embassy, and by another that a\nnote by her name indicated the police should be called to\narrest her. Dr. Ibrahim has not been permitted to return to\nthe United States to this day.\n\n On March 24, 2005, Dr. Ibrahim submitted a Passenger\nIdentity Verification Form (PIVF) to TSA. Before 2007,\nindividuals who claimed they were denied or delayed\nboarding a plane in or for, or entry to, the United States, or\nclaimed they were repeatedly subjected to additional\nscreening or inspection, could submit a PIVF to TSA. A\nPIVF prompted various agencies to review whether an\nindividual was properly placed in the TSDB or in related\nwatchlist databases. 2\n\n Next, on April 14, 2005, the U.S. Embassy in Kuala\nLumpur wrote to inform Dr. Ibrahim that the Department of\nState had revoked her F-1 student visa on January 31, 2005,\nwhich seemed to explain why she had not been allowed to\nfly in March, but gave her no further information regarding\nher status. The April 14 letter cited Dr. Ibrahim’s possible\nineligibility “under Section 212(a)(3)(B) of the Immigration\nand Nationality Act [(INA)],” codified at 8 U.S.C\n§ 1182(a)(3)(B), to explain the revocation. That section\nprohibits entry into the U.S. by any person who engaged in\nterrorist activity, was reasonably believed to be engaged in\nor likely to be engaged in terrorist activity, or who has\nincited terrorist activity, among other things. 8 U.S.C.\n\n 2\n This avenue of redress was replaced in 2007 by the Travel Redress\nInquiry Program (TRIP), see 49 U.S.C. § 44926(a), which requires a\n“timely and fair” process for persons wrongly delayed or prohibited from\nboarding a commercial aircraft.\n\n12 IBRAHIM V. DHS\n\n§ 1182(a)(3)(B). However, the letter also told her that the\nrevocation did “not necessarily indicate that [she would be]\nineligible to receive a U.S. visa in [the] future.” Not having\nheard back from TSA, Dr. Ibrahim retained McManis\nFaulkner. And on January 27, 2006, she filed the underlying\naction to challenge her placement on the No Fly list, as well\nas the federal and state governments’ administration of the\nlist and their treatment of her with respect to it.\n\n In a letter dated March 1, 2006, Dr. Ibrahim received a\nresponse to her PIVF. That letter stated that TSA had\n“conducted a review of any applicable records in\nconsultation with other federal agencies, as appropriate,”\nand continued, “[w]here it has been determined that a\ncorrection to records is warranted, these records have been\nmodified to address any delay or denial of boarding that you\nmay have experienced as a result of the watchlist screening\nprocess.” The letter did not indicate Dr. Ibrahim’s status\nwith respect to the No Fly list or any other federal watchlist.\n\n In 2009, Dr. Ibrahim applied for a visa to attend\nproceedings in this action. The U.S. Embassy in Kuala\nLumpur interviewed her on September 29, 2009. On\nDecember 14, 2009, a consular officer of the U.S.\nDepartment of State sent a letter to Dr. Ibrahim notifying her\nof her visa application’s denial. The consular officer wrote\nthe word “(Terrorist)” next to the checked box for INA\n§ 212(a)(3)(B) on an accompanying form to explain why Dr.\nIbrahim was deemed inadmissible.\n\n In September 2013, Dr. Ibrahim submitted a visa\napplication so that she could attend the trial in her case. She\nwent to a consular officer interview in October 2013. At the\ninterview, the consular officer asked her to provide\nsupplemental information via e-mail, which Dr. Ibrahim\nduly provided. Trial in this action began on December 2 and\n\n IBRAHIM V. DHS 13\n\nended on December 6. While she did not receive a response\nto her visa application before trial, at trial, government\ncounsel stated that the visa had been denied. Dr. Ibrahim’s\ncounsel said that they had not been aware of the denial and\nthat Dr. Ibrahim had not been notified.\n\n B. United States Government\n\n While Dr. Ibrahim stood in limbo, unaware of her status\non any list and unable to return to the United States, even to\nattend the trial of her own case, the government was well\naware that her placement on the No Fly list was a mistake\nfrom the get-go. 3\n\n Here it is helpful to understand, as much as we can on\nthis record, how the U.S. “government maintains and\noperates a web of interlocking watchlists, all now centered\non the [TSDB],” as described in the district court’s post-trial\norder. 4 The FBI, DHS, the Department of State, and other\nagencies administer an organization called the Terrorist\nScreening Center (TSC), which manages the TSDB. Both\nthe TSC and TSDB were created in response to the terrorist\nattacks on September 11, 2001, in order to centralize\ninformation about known and suspected terrorists. That\ninformation is then exported as appropriate to various\n“customer databases,” i.e., government watchlists, operated\nby other agencies and government entities. In this way, “the\n\n 3\n To this date, we do not know how Dr. Ibrahim was initially flagged\nfor potential placement in the TSDB, managed by the Terrorist Screening\nCenter (TSC), of which the No Fly list is a subset. There has never been\na determination, nor can we determine, whether this placement was\nmotivated by “race, religion, or ethnicity.”\n 4\n None of the following information was deemed classified or\notherwise privileged before or during trial.\n\n14 IBRAHIM V. DHS\n\ndots could be connected.” While the TSDB does not contain\nclassified information, the government stores classified\n“derogatory” information in a closely allied and separate\ndatabase called the Terrorist Identities Datamart\nEnvironment (TIDE), which is operated by the National\nCounterterrorism Center (NCTC) branch of the Office of the\nDirector of National Intelligence. These terrorist watchlists,\nand others, provide information to the United States\nintelligence community, a coalition of seventeen agencies\nand organizations within the executive branch, and also\nprovide information to certain foreign governments.\n\n Today, individuals are generally nominated to the TSDB\nusing a “reasonable suspicion standard,” meaning\n“articulable facts which, taken together with rational\ninferences, reasonably warrant the determination that an\nindividual is known or suspected to be or has been engaged\nin conduct constituting, in preparation for, in aid of, or\nrelated to terrorism and terrorist activities.” This standard\nwas created by executive branch policy and practice and was\nnot promulgated by Congress or the judicial branch.\nHowever, from 2004 to 2007, the executive branch and its\nagencies employed no uniform standard for TSDB\nnominations, allowing each agency to use its own\nnominating procedures for inclusion in the TSDB based on\neach agency’s interpretation of homeland security\npresidential directives and the memorandum of opinion that\nestablished the TSC. These directives provided little\ninstruction. For example, one such directive was Homeland\nSecurity Presidential Directive 6 (HSPD-6), which stated,\n“[t]his directive shall be implemented in a manner consistent\nwith the provisions of the Constitution and applicable laws,\nincluding those protecting the rights of all Americans.”\n\n IBRAHIM V. DHS 15\n\n As the centralized database, the TSDB is the repository\nfor all watchlist nominations. Various government agents\nnominate individuals by filling out a physical form, which is\nlater computerized and used by the TSDB to indicate on\nwhich watchlist each nominee should be included or\nexcluded. There are several watchlists affected by the\nTSDB, namely5:\n\n • the No Fly list (TSA);\n • the Selectee list (TSA);\n • Known and Suspected Terrorist File (KSTF,\n previously known as the Violent Gang and Terrorist\n Organizations File);\n • Consular Lookout and Support System (CLASS,\n including CLASS-Visa, a Department of State\n database used for screening of visa applicants, and\n CLASS-Passport, a database that applies only to\n United States citizens who might be watchlisted)\n (Department of State);\n • TECS (not an acronym, but the successor to the\n Treasury Enforcement Communications System)\n (DHS);\n • Interagency Border Inspection System (IBIS)\n (DHS);\n • Tipoff United States-Canada (TUSCAN) (used to\n export information from the United States to\n Canada); and\n • Tipoff Australia Counterterrorism Information\n Control System (TACTICS) (used to export\n information from the United States to Australia).\n\n 5\n This is information derived solely from the record before us, so we\ndo not represent that this is an exclusive list or that there have not been\nsubsequent changes to the lists.\n\n16 IBRAHIM V. DHS\n\n These TSDB designations are then exported to the\ncustomer/government watchlists, which are each operated\nby various government entities and used in various ways.\nFor example, TSDB nominations are transmitted to the\nDepartment of State for inclusion in CLASS-Visa or\nCLASS-Passport. In ruling on visa applications, consular\nofficers review the CLASS database for information that\nmay inform the visa application and adjudication process.\n\n In November 2004, shortly after Dr. Ibrahim’s husband\nMustafa Kamal Mohammed Zaini visited her from Malaysia\nto help her after her surgery, FBI Special Agent Kevin\nMichael Kelley (Agent Kelley), located in San Jose,\nCalifornia, unintentionally nominated Dr. Ibrahim, who was\nthen a graduate student at Stanford University, to various\nfederal watchlists using the FBI’s National Crime\nInformation Center (NCIC) Violent Gang and Terrorist\nOrganizations (VGTO) File Gang Member Entry Form\n(VGTOF). VGTO was an office within NCIC. Agent\nKelley misunderstood the directions on the form and\nerroneously nominated Dr. Ibrahim to the TSA’s No Fly list\nand DHS’s IBIS. He did not intend to do so.\n\n Agent Kelley testified at trial that he intended to\nnominate Dr. Ibrahim to the CLASS, the TSA Selectee list,\nTUSCAN (information exported to Canada), and TACTICS\n(information exported to Australia) lists. He checked the\nwrong boxes, filling out the form exactly contrary to the\nform’s instructions. The form expressly indicated that he\nwas to check the boxes for the databases into which the\nsubject should NOT be placed. Here is a blank copy of the\nform:\n\n IBRAHIM V. DHS 17\n\n\n\n\nIn other words, Agent Kelley was instructed to check the\nboxes for the watchlists for which Dr. Ibrahim was NOT to\nbe nominated. Here is the form as Agent Kelley completed\nit:\n\n\n\n\nAgent Kelley, by failing to check the boxes for the No Fly\nlist and IBIS, placed Dr. Ibrahim on those watchlists (and by\nchecking the boxes for CLASS, the TSA Selectee list,\nTUSCAN, and TACTICS, Agent Kelley did not place her on\nthose lists).\n\n Agent Kelley’s squad also was conducting a mosque\noutreach program. One purpose of the program was to\n\n18 IBRAHIM V. DHS\n\nprovide a point of contact between law enforcement and\nmosques and Islamic associations. The outreach program\nincluded Muslim and Sikh communities and organizations in\nthe San Francisco Bay Area. In December 2004, Agent\nKelley and his colleague interviewed Dr. Ibrahim while she\nwas still attending Stanford University. 6 He asked, among\nother things, about her plans to attend a conference in\nHawaii, her dissertation work, her plans after graduation, her\ninvolvement in the Muslim community, her husband, her\ntravel plans, and the organization Jemaah Islamiyah, a\nDepartment of State-designated terrorist organization that\nDr. Ibrahim had heard of only on the news. She was not a\nmember. 7 The Freedom of Information Act-produced\nversion of Agent Kelley’s interview notes with Dr. Ibrahim\nwere designated by the FBI as “315,” which denotes\n“International Terrorism Investigations.”\n\n On January 2, 2005, when Dr. Ibrahim was detained at\nSFO on her way to Hawaii, a DHS aviation security\ninspector told her that her name had been removed from the\nlist.\n\n\n 6\n Again, we do not know on this record the motivation for singling\nout Dr. Ibrahim for the interview, but we note that the district court stated\n“it [was] plausible that Dr. Ibrahim was interviewed in the first place on\naccount of her roots and religion.” The interview also came soon on the\nheels of her Muslim husband’s visit. However, the motivation question\nwas the basis for one of the claims the district court found it unnecessary\nto reach.\n\n 7\n Dr. Ibrahim was a member of a non-terrorist organization with a\nsimilar-sounding name, Jemaah Islah Malaysia, a Malaysian\nprofessional organization composed primarily of individuals who\nstudied in the United States or Europe. The district court declined to find\nthat Agent Kelley confused Jemaah Islah Malaysia with Jemaah\nIslamiyah.\n\n IBRAHIM V. DHS 19\n\n Meanwhile, on January 3, 2005, in the visa office of the\nDepartment of State, one official was sitting on a stack of\npending visa revocations that were based on the VGTO\nwatchlist from which Agent Kelley had nominated Dr.\nIbrahim to the No Fly list. That official e-mailed another\nvisa official to report that although “[t]hese revocations\ncontain virtually no derogatory information,” he was going\nto revoke them. The official wrote, because “there is no\npractical way to determine the basis of the investigation . . .\nwe will accept that the opening of an investigation itself is a\nprima facie indicator of potential ineligibility under\n[§ 212(a)(3)(B) of the INA, relating to terrorist activities].”\nOne of the revocations in that stack was Dr. Ibrahim’s\nstudent visa.\n\n Sure enough, on January 31, 2005, the Department of\nState revoked Dr. Ibrahim’s F-1 student visa pursuant to\n§ 212(a)(3)(B). In an e-mail conversation dated February 8,\n2005 between the chief of the consular section at the U.S.\nEmbassy in Kuala Lumpur and an official in the\ncoordination division at the Department of State’s visa\noffice, designated “VO/L/C,” the consular chief asked about\na prudential visa revocation cable he had received\nconcerning the events Dr. Ibrahim experienced in January\n2005. The Department of State official replied,\n\n I handle revocations in VO/L/C. The short\n version is that this person’s visa was revoked\n because there is law enforcement interest in\n her as a potential terrorist. This is sufficient\n to prudentially revoke a visa but doesn’t\n constitute a finding of ineligibility. The idea\n is to revoke first and resolve the issues later\n in the context of a new visa application . . . .\n My guess based on past experience is that\n\n20 IBRAHIM V. DHS\n\n she’s probably issuable. However, there’s no\n way to be sure without putting her through\n the interagency process.\n\n After Dr. Ibrahim’s visa was revoked, the Department of\nState entered a record into CLASS that notified any consular\nofficial adjudicating a future visa application on her behalf\nthat she may be inadmissible under § 212(a)(3)(B). In\nDecember 2005, Dr. Ibrahim was removed from the TSA’s\nSelectee list. Around this time, however, she was added to\nTACTICS (exports to Australia) and TUSCAN (exports to\nCanada). The government has never explained this\nplacement or the effect of Dr. Ibrahim’s placement on\nTACTICS or TUSCAN. 8\n\n Two weeks later, on January 27, 2006, Dr. Ibrahim filed\nthe underlying action. On February 10, 2006, an\nunidentified government agent requested that Dr. Ibrahim be\n“Remove[d] From ALL Watchlisting Supported Systems\n(For terrorist subjects: due to closure of case AND no nexus\nto terrorism).” Answering the question “Is the individual\nqualified for placement on the no fly list?” the “No” box was\nchecked. For the question, “If No, is the individual qualified\nfor placement on the selectee list?” the “No” box was\nchecked.\n\n On September 18, 2006, the government removed Dr.\nIbrahim from the TSDB because she did not meet the\n“reasonable suspicion standard” for placement on it, which\n\n 8\n The record does not reflect how Canada and Australia use the\ninformation exported into the TUSCAN and TACTICS databases. The\ngovernment declined to provide this information during discovery,\ndeeming it outside the scope of the Federal Rule of Civil\nProcedure 30(b)(6) subpoena.\n\n IBRAHIM V. DHS 21\n\nrequires that the government believe “an individual is known\nor suspected to be or has been engaged in conduct\nconstituting, in preparation for, in aid of, or related to\nterrorism and terrorist activities.” The record, however,\ndoes not indicate whether she was removed from all of the\ncustomer watchlists that subscribed to the TSDB.\n\n On March 2, 2007, Dr. Ibrahim was placed back on the\nTSDB. The record does not explain why she was relisted\non the TSDB or which customer watchlists were to be\nnotified. Two months later, however, on May 30, 2007, Dr.\nIbrahim was again removed from the TSDB. The record\ndoes not show the extent to which Dr. Ibrahim’s name was\nthen removed from the other customer watchlists, nor the\nreason for the removal.\n\n Dr. Ibrahim’s 2009 visa application to attend\nproceedings in this case was initially refused under § 221(g)\nof the INA, 8 U.S.C. § 1201(g), because it was determined\nthat there was insufficient information to make a final\nadjudication in the matter. The consular officer requested a\nSecurity Advisory Opinion from the Department of State.\nThe consular official was concerned that Dr. Ibrahim was\npotentially inadmissible under § 212(a)(3)(B) of the INA,\nwhich provides nine classes of aliens ineligible for visas or\nadmission into the United States based on terrorist activities.\nThe Security Advisory Opinion from the Department of\nState, initially unavailable to Dr. Ibrahim but later produced\nin discovery, stated:\n\n Information on this applicant surfaced during\n the SAO review that would support a\n 212(a)(3)(B) inadmissibility finding. Posts\n should refuse the case accordingly. Since the\n Department reports all visa refusals under\n INA Section 212(a)(3)(B) to Congress, post\n\n22 IBRAHIM V. DHS\n\n should notify [the Coordination Division\n within the Visa Office] when the visa refusal\n is affected [sic]. There has been no request\n for an INA section 212(d)(3)(A) waiver at\n this time.\n\nBased on the Security Advisory Opinion’s finding, the\nconsular officer denied her visa application, and wrote the\nword “(Terrorist)” on the form to explain the inadmissibility\ndetermination to Dr. Ibrahim.\n\n On October 20, 2009, Dr. Ibrahim was again nominated\nto the TSDB pursuant to a secret exception to the reasonable\nsuspicion standard. The government claims that the nature\nof the exception and the reasons for the nomination are state\nsecrets. In Dr. Ibrahim’s circumstance, the effect of the\nnomination was that Dr. Ibrahim’s information was exported\nfrom the TSDB database solely to the Department of State’s\nCLASS database and DHS’s TECS database.\n\n From October 2009 to the present, Dr. Ibrahim has been\nincluded on the TSDB, CLASS, and TECS watchlists. She\nhas been off the No Fly and Selectee lists. She remains in\nthe TSDB, even though she does not meet the “reasonable\nsuspicion standard,” pursuant to a classified and secret\nexception to that standard.\n\n Government counsel conceded at trial that Dr. Ibrahim\nwas not a threat to the national security of the United States\nand that she never has been. She did not pose (and has not\nposed) a threat of committing an act of international or\ndomestic terrorism with respect to an aircraft, a threat to\nairline passenger or civil aviation security, or a threat of\ndomestic terrorism. Despite this assessment, Dr. Ibrahim\nhas been unable to return to the United States to this day.\n\n IBRAHIM V. DHS 23\n\n II.\n\n On January 27, 2006, Dr. Ibrahim filed suit against DHS,\nTSA, the TSC, the FBI, the Federal Aviation Administration\n(FAA), and individuals associated with these entities\n(collectively, the federal defendants); the City and County of\nSan Francisco, the San Francisco Police Department, SFO,\nthe County of San Mateo, and individuals associated with\nthese entities (collectively, the city defendants); and United\nAirlines, UAL Corporation, and individuals associated with\nthese entities (collectively, the private defendants). Dr.\nIbrahim asserted § 1983 claims and state-law tort claims\narising out of her detention at SFO, as well as several\nconstitutional claims based on the inclusion of her name on\ngovernment terrorist watchlists. On August 16, 2006, the\ndistrict court dismissed her claims against the federal\ndefendants under 49 U.S.C. § 46110(a), which vests\nexclusive original jurisdiction in the courts of appeals over\nsuits challenging security orders issued by TSA. The order\nalso dismissed Dr. Ibrahim’s claims against a TSA employee\nand the airline. Dr. Ibrahim appealed.\n\n We affirmed in part, reversed in part, and remanded. We\nreversed the district court’s dismissal of the federal\ndefendants, holding that § 46110(a) does not bar district\ncourt jurisdiction over Dr. Ibrahim’s challenges to her\nplacement on the government terrorist watchlists, including\nthe No Fly list, because the lists are managed by the TSC\nrather than TSA. Ibrahim v. Dep’t of Homeland Sec.,\n538 F.3d 1250, 1254–56 (9th Cir. 2008) (Ibrahim I). We\naffirmed the district court’s conclusions that § 46110(a)\nrequires all challenges to TSA policies and procedures\nimplementing the No Fly and other lists to be filed directly\nin the courts of appeals, that the federal agency and airline\nactions were not state actions under § 1983, and that the tort\n\n24 IBRAHIM V. DHS\n\nclaims against the federal officials in their official capacities\nand against the airline defendants were precluded. Id. at\n1256–58. We further held that the district court had personal\njurisdiction over the claims against the TSA employee, who\nwas sued in his individual capacity. 9 Id. at 1258–59. We\nremanded the issue of standing to the district court to decide\nin the first instance. Id. at 1254–56, 1256 n.9.\n\n After we remanded the case, Dr. Ibrahim filed a Second\nAmended Complaint (SAC), alleging various Bivens,\nconstitutional, § 1983, statutory, state tort, and\nAdministrative Procedure Act (APA) claims against several\nfederal agencies and federal officials in their official\ncapacities (collectively, the Federal Defendants) and state\nand local government agencies, certain individuals in their\nindividual capacities, and the U.S. Investigation Services,\nInc. (collectively, the Non-Federal Defendants). Dr. Ibrahim\nrequested an injunction that would require the federal\ngovernment to take her name off its terrorist watchlists,\nincluding the No Fly list, or, in the alternative, to provide\nprocedures under which she could challenge her inclusion on\nthose lists, in addition to other non-monetary requests and\ndamages. The SAC also sought limited relief relevant to Dr.\nIbrahim’s visa denial, but stopped short of attempting to\nforce the government to issue her a visa.\n\n Both the Federal Defendants and Non-Federal\nDefendants filed motions to dismiss with respect to the\nmajority of the claims. In an order dated July 27, 2009, the\n 9\n We held that although the TSA employee “lives in Virginia and\nhas no ties to California,” the court had specific jurisdiction over Dr.\nIbrahim’s claims against him because “(1) [he] purposefully directed his\naction (namely, his order to detain Ibrahim) at California; (2) [Dr.]\nIbrahim’s claim arises out of that action; and (3) jurisdiction is\nreasonable.” Ibrahim I, 538 F.3d at 1258 (citation omitted).\n\n IBRAHIM V. DHS 25\n\ndistrict court partially granted the Non-Federal Defendants’\nmotions to dismiss. Thereafter, all of the Non-Federal\nDefendants entered into cash settlements with Dr. Ibrahim.\n\n In the same order, the district court again dismissed Dr.\nIbrahim’s claims against the Federal Defendants. These\nclaims alleged that the inclusion of Dr. Ibrahim’s name on\nthe government’s terrorist watchlists violated her First\nAmendment right to freedom of association and her Fifth\nAmendment rights to due process and equal protection. She\nalso alleged that the Federal Defendants violated the APA,\narguing that the APA waives the sovereign immunity of the\nUnited States, thereby allowing her claims under the First\nand Fifth Amendments and authorizing remedies for those\nclaims.\n\n The district court held that while Dr. Ibrahim could seek\ndamages for her past injury at SFO (and had successfully\nsettled that part of the case), she had voluntarily left the\nUnited States and, as a nonimmigrant alien abroad, no longer\nhad standing to assert constitutional and statutory claims to\nseek prospective relief. The district court held that, although\nnonimmigrant aliens in the United States had standing to\nassert constitutional and statutory claims, a nonimmigrant\nalien who had voluntarily left the United States and was at\nlarge abroad had no standing to assert federal claims for\nprospective relief in our federal courts. Dr. Ibrahim filed a\nsecond appeal.\n\n We affirmed in part, but reversed as to prospective\nstanding by holding that even a nonimmigrant alien who had\nvoluntarily left the United States nonetheless has standing to\nlitigate federal constitutional claims in the district courts of\nthe United States so long as the alien had a “substantial\nvoluntary connection” to the United States. Ibrahim v. Dep’t\nof Homeland Sec., 669 F.3d 983, 996 (9th Cir. 2012)\n\n26 IBRAHIM V. DHS\n\n(Ibrahim II). We held that Dr. Ibrahim had such a\nconnection because of her time at Stanford University, her\ncontinuing collaboration with professors in the United\nStates, her membership in several professional organizations\nlocated in the United States, the invitations for her to return,\nand her network of close friends in the United States. Id. at\n993–94, 996. The government did not seek review by the\nSupreme Court.\n\n Following the second remand, the government again\nfiled a motion to dismiss, which the district court denied.\nDespite the unequivocal pronouncement from our court and\nthe district court that Dr. Ibrahim had adequately pleaded\nArticle III standing, the government argued over the next\nyear that Dr. Ibrahim lacked standing. The government\nmade this argument in its third motion to dismiss, its motion\nfor summary judgment, its statements during trial, and its\nproposed findings of fact and conclusions of law. The\ngovernment persisted, even though it was abundantly clear\nthat “the standing issue had gone the other way on appeal.”\n\n From the February 2012 remand through trial, the parties\nand the district court were embroiled in discovery disputes\ninvolving the state secrets privilege, the law enforcement\nprivilege, and assertions of “sensitive security information”\n(SSI), 49 C.F.R. § 1520.5. The government invoked these\nas bases for withholding classified and otherwise allegedly\nsensitive government information from Dr. Ibrahim and her\ncounsel.\n\n On April 19, 2013, after years of litigation, the district\ncourt finally issued two orders granting in part and denying\nin part Dr. Ibrahim’s motions to compel discovery.\nResolving these disputes required the district court judge to\nreview individually each of the documents Dr. Ibrahim\nsought. Most of this review was conducted ex parte and in\n\n IBRAHIM V. DHS 27\n\ncamera due to the privileged, classified, or secret nature of\nthe documents. The state secrets privilege was upheld as to\nnearly all of the classified documents in question. The\ngovernment’s assertion of other privileges regarding non-\nclassified documents was overruled as to the majority of the\nremaining documents. The district court compelled the\ngovernment to release information specifically related to Dr.\nIbrahim’s watchlist history, in addition to her current\nwatchlist statuses. It also required the government to\nproduce Federal Rule of Civil Procedure 30(b)(6) witnesses.\n\n At last, Dr. Ibrahim and her attorneys were able to learn\nwhat the government had known all along. On May 2, 2013,\nthe government stated that Dr. Ibrahim was inadvertently\nplaced on the No-Fly list but did not explain the details of\nthis mistake, or who was involved. On May 2, 2013, when\nthe government responded to Dr. Ibrahim’s interrogatory\nrequests, Dr. Ibrahim learned, for the first time, her historical\nand current watchlist statuses. 10 On September 12, 2013,\nagain over the government’s vigorous objections, Dr.\nIbrahim’s attorneys deposed Agent Kelley and learned that\nher placement on the No Fly and IBIS watchlists was, in fact,\n\n\n 10\n The government designated all of its interrogatory responses\n“attorneys’ eyes only,” which, under the protective order, meant that\nonly Dr. Ibrahim’s attorneys were allowed to review information\nproduced with this stamp, and Dr. Ibrahim herself was not permitted to\nreview those documents. As a result, it is difficult to discern precisely\nwhen Dr. Ibrahim herself was able to learn certain information.\nHowever, with respect to information regarding her current and\nhistorical watchlist statuses, the district court concluded those were not\nprotected by privilege in its April 2013 order, so it is likely counsel was\nable to inform Dr. Ibrahim of her watchlist statuses the day the\ninterrogatory responses were filed.\n\n28 IBRAHIM V. DHS\n\na mistake based on Agent Kelley’s misreading of the form. 11\nIn sum, the government failed to reveal that Dr. Ibrahim’s\nplacement on the No Fly list was a mistake until two months\nbefore trial, and eight years after Dr. Ibrahim filed suit. And\nat all times, as the government vigorously contested Dr.\nIbrahim’s discovery requests, and lodged over two hundred\nobjections and instructions not to answer questions in\ndepositions, the government was aware that she was not\nresponsible for terrorism or any threats against the United\nStates.\n\n The government’s discovery games stretched up to and\nthrough trial. The government announced on at least two\noccasions that if it invoked the state secrets privilege to\nwithhold information, then that evidence could not be relied\nupon by either side at trial. After making such\nrepresentations on the record, on September 13, 2013, the\ndistrict court ordered the government to confirm that neither\nparty could use information withheld on grounds of state\nsecrets privilege. The government affirmed it would not rely\non any information withheld on grounds of privilege from\nDr. Ibrahim. The government nevertheless reversed course\nduring trial and sought to prevail by having this action\ndismissed due to its inability to disclose state secrets.\n\n The government also filed a motion for summary\njudgment. A hearing was held on the government’s motion\non October 31, 2013. Instead of discussing the merits of the\nsummary judgment motion, the government used the vast\nmajority of the hearing time to discuss whether or not the\n\n 11\n Dr. Ibrahim first learned that Agent Kelley had participated in the\n2004 interview and that Kelley was personally responsible for\nnominating her to the TSDB during the deposition of the Acting Deputy\nDirector of the TSC on May 29, 2013.\n\n IBRAHIM V. DHS 29\n\ntrial should be open to the public and whether certain\ninformation listed on Dr. Ibrahim’s demonstratives was\nsubject to various privileges. The district court ultimately\ndeclined to hear further argument and decided the motion on\nthe papers.\n\n The government’s motion for summary judgment was\ngranted in limited part but mostly denied on November 4,\n2013. Dr. Ibrahim’s “exchange of information” claim based\non the First Amendment was dismissed. Dr. Ibrahim’s\nclaims based on procedural and substantive due process,\nequal protection, and First Amendment rights of expressive\nassociation and against retaliation proceeded to trial. The\ngovernment raised lack of standing, yet again, and was\ndenied, yet again. For the first time, and contrary to what it\nhad represented before, the government further argued that\nsummary judgment in its favor was appropriate based on the\nstate secrets privilege, pursuant to our court’s decision in\nMohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079\n(9th Cir. 2010) (en banc) (noting that even when evidence is\nexcluded via an invocation of state secrets, the case may still\nneed to be dismissed because “it will become apparent\nduring the [United States v. Reynolds, 345 U.S. 1 (1953) 12]\n\n\n 12\n Analyzing claims under the Reynolds privilege involves three\nsteps:\n\n First, we must “ascertain that the procedural\n requirements for invoking the state secrets privilege\n have been satisfied.” Second, we must make an\n independent determination whether the information is\n privileged …. Finally, “the ultimate question to be\n resolved is how the matter should proceed in light of\n the successful privilege claim.”\n\n30 IBRAHIM V. DHS\n\nanalysis that the case cannot proceed without privileged\nevidence, or that litigating the case to a judgment on the\nmerits would present an unacceptable risk of disclosing state\nsecrets”).\n\n At the final pretrial conference, the government made\nwhat amounted to a motion for reconsideration of its\npreviously denied motion for summary judgment on state\nsecrets grounds. The government argued that the action\nshould be dismissed because the core of the case had been\nexcluded as state secrets. The motion was denied on several\ngrounds. First, the government had failed to raise such an\nargument until weeks before trial. Second, it was too late\nand too unsettling for the government to reverse its prior\nposition. Third, even under Jeppesen, 614 F.3d at 1080, the\ndistrict court could not say with certainty that Dr. Ibrahim\nwould be unable to prove her case at trial or that the\ngovernment would be absolutely deprived of a meritorious\nand complete defense. The district court planned to allow\nboth sides to present their unclassified evidence through the\n“normal” trial procedure and then to allow the government\nto submit an ex parte and under seal submission to try to\nexplain how its state secrets might bear on the actual trial\nissues. Surprisingly, although no classified information was\nused at trial, the government made numerous privilege\nassertions and motions to close the courtroom. Due to these\nassertions, the district judge at least ten times “reluctantly”\nasked the press and the public to leave the courtroom.\n\n On December 2, 2013, the first day of trial, before\nopening statements, Dr. Ibrahim’s counsel reported that Dr.\n\nAl-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.\n2007) (citations omitted) (quoting El-Masri v. United States, 479 F.3d\n296, 304 (4th Cir. 2007)).\n\n IBRAHIM V. DHS 31\n\nIbrahim’s daughter—a U.S. citizen born in the United States\nand a witness disclosed on Dr. Ibrahim’s witness list—was\nnot permitted to board her flight from Kuala Lumpur to\nattend trial, evidently because she too was now on the No\nFly list. Consequently, Dr. Ibrahim’s daughter missed her\nflight and was forced to reschedule. The district court\nconcluded this was a mistake, and the government quickly\nremedied this error.\n\n After a one-week bench trial, in the first No Fly list trial\never conducted, the district court found in Dr. Ibrahim’s\nfavor on her procedural due process claim and ordered the\ngovernment to remove all references to the mistaken\ndesignations by Agent Kelley in 2004 on all terrorist\nwatchlist databases and records; to inform Dr. Ibrahim of the\nspecific subsection of the INA that rendered Dr. Ibrahim\nineligible for a visa in 2009 and 2013; to inform Dr. Ibrahim\nshe is no longer on the No Fly list and has not been since\n2005; and to inform Dr. Ibrahim that she is eligible to apply\nfor a discretionary visa waiver under 8 U.S.C.\n§ 1182(3)(D)(iv) and 22 C.F.R. § 41.121(b)(1). The district\ncourt declined to reach Dr. Ibrahim’s substantive due\nprocess, equal protection, First Amendment, and APA\nclaims, because “those arguments, even if successful, would\nnot lead to any greater relief than already ordered.”\n\n Having won an outstanding victory, Dr. Ibrahim’s\nlawyers petitioned for fees under the EAJA. In the district\ncourt’s April 15, 2014 fee order, although the district court\napplauded the lawyers’ commitment to this difficult and\nunprecedented case, it awarded only limited compensation.\nThe court acknowledged that Dr. Ibrahim “did not outright\nlose” on her substantive due process, equal protection, First\nAmendment, and APA claims, but treated those claims as\n“unsuccessful” when it calculated fees under Hensley. The\n\n32 IBRAHIM V. DHS\n\ndistrict court found that her substantive due process and\nAPA claims were related to the procedural due process claim\non which she prevailed, so it allowed fees on these claims.\nBut the court also ruled that her First Amendment and equal\nprotection claims were not related to the successful claim,\nand denied fees for work performed on those claims. The\ndistrict court also concluded that Dr. Ibrahim’s counsel was\nnot entitled to fees for work performed on Dr. Ibrahim’s visa\nissues, the settlement with the Non-Federal Defendants,\nlitigation of standing prior to Ibrahim II (although it\npermitted fees for time after Ibrahim II), litigation of\nprivilege issues, and other miscellaneous work. The district\ncourt also found that the government did not act in bad faith,\nthat Dr. Ibrahim’s counsel was not entitled to a rate\nenhancement beyond the $125 per hour fee 13 stated in\n28 U.S.C. § 2412(d)(2)(A)(ii), and that counsel was not\nentitled to fees as discovery sanctions pursuant to Federal\nRules of Civil Procedure 37 and 16. The district court\nappointed a special master to determine the appropriate\naward of fees and costs based on the district court’s findings.\n\n Thereafter, the parties and the court engaged in a lengthy\nand contentious fee dispute before the special master. The\ndistrict court ultimately adopted the special master’s\nfindings and reduced Dr. Ibrahim’s fees for various\nwitnesses and costs associated with those witnesses,\nexpenses related to obtaining TSA clearance, costs that\nwould be “reasonably charged” to the client, and costs for\nmultiple copies of the same book; and rejected certain\nexpenses for lack of supporting documentation or sufficient\nitemization. In total, Dr. Ibrahim sought $3,630,057.50 in\nmarket-rate attorneys’ fees and $293,860.18 in expenses.\n\n 13\n The district court allowed a rate enhancement for James McManis\nbecause of his “distinctive knowledge and skills.”\n\n IBRAHIM V. DHS 33\n\nOn October 9, 2014, the district court ultimately awarded Dr.\nIbrahim $419,987.36 in fees and $34,768.71 in expenses.\nDr. Ibrahim appealed the underlying legal framework the\ndistrict court utilized to determine the fees she was eligible\nto recover, various specific reductions to eligible fees, and\nthe striking of her objections to the special master’s\nrecommendations.\n\n On appeal, in the now-withdrawn panel opinion, our\ncourt adopted a number of the district court’s rulings under\na different approach. Ibrahim v. U.S. Dep’t of Homeland\nSec., 835 F.3d 1048 (9th Cir. 2016), reh’g en banc granted,\n878 F.3d 703 (9th Cir. 2017) (Ibrahim III). The three-judge\npanel concluded that “it was not an abuse of discretion to\nfind that [Dr.] Ibrahim’s unsuccessful claims were unrelated,\nbecause although the work done on those claims could have\ncontributed to her ultimately successful claim, the facts and\nlegal theories underlying [Dr.] Ibrahim’s claims make that\nresult unlikely.” Id. at 1063. The panel rested this\nconclusion on the novel theory that, because the theories\nunderlying claims the district court declined to reach were\n“mutually exclusive” to the successful claims, the unreached\nclaims were unrelated. Id. at 1062–63. The panel also held\nthat the district court incorrectly considered substantial\njustification at each stage of litigation; that the government\ndid not act in bad faith; that the district court did not err in\ndetermining that Dr. Ibrahim had failed to abide by its page\nlimits in objecting to the special master’s report and\nrecommendation; and that the district court did not abuse its\ndiscretion in striking Dr. Ibrahim’s objections to the special\nmaster’s report and recommendation. Id. at 1052, 1065–66.\n\n We now clarify that when a district court awards\ncomplete relief on one claim, rendering it unnecessary to\nreach alternative claims, the alternative claims cannot be\n\n34 IBRAHIM V. DHS\n\ndeemed unsuccessful for the purpose of calculating a fee\naward. We also reject the post hoc “mutual exclusivity”\napproach to determining whether “unsuccessful” claims are\nrelated to successful claims and reaffirm that Hensley sets\nforth the correct standard of “relatedness” for claims under\nthe EAJA. And we reaffirm that in evaluating whether the\ngovernment’s position is substantially justified, we look at\nwhether the government’s and the underlying agency’s\npositions were justified as a whole and not at each stage.\n\n III.\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview a district court’s award of fees under the EAJA for\nabuse of discretion. Thomas v. City of Tacoma, 410 F.3d\n644, 649 (9th Cir. 2005); Gonzales v. Free Speech Coal.,\n408 F.3d 613, 618 (9th Cir. 2005); Schwarz v. Sec’y of\nHealth & Human Servs., 73 F.3d 895, 900 (9th Cir. 1995).\nWe review a district court’s finding on the question of bad\nfaith for clear error. Cazares v. Barber, 959 F.2d 753, 754\n(9th Cir. 1992). We review the district court’s interpretation\nof the EAJA de novo. Edwards v. McMahon, 834 F.2d 796,\n801 (9th Cir. 1987). “[A] district court’s fee award will be\noverturned if it is based on an inaccurate view of the law or\na clearly erroneous finding of fact.” Corder v. Gates,\n947 F.2d 374, 377 (9th Cir. 1991).\n\n IV.\n\n The parties now 14 do not dispute that Dr. Ibrahim is\nentitled to attorneys’ fees under the EAJA. What they do\n\n 14\n Before the district court, the government opposed Dr. Ibrahim’s\nrequest for attorneys’ fees on substantial justification grounds, and it\noriginally cross-appealed the entire award in this appeal. Before\n\n IBRAHIM V. DHS 35\n\ndispute is whether the amount of fees the district court\nawarded resulted from a proper application of the EAJA and\ncommon law.\n\n In enacting the EAJA, Congress stated:\n\n For many citizens, the costs of securing\n vindication of their rights and the inability to\n recover attorney fees preclude resort to the\n adjudicatory process. . . . When the cost of\n contesting a Government order, for example,\n exceeds the amount at stake, a party has no\n realistic choice and no effective remedy. In\n these cases, it is more practical to endure an\n injustice than to contest it.\n\nS. Rep. No. 96-253, at 5 (1979).\n\n “The clearly stated objective of the EAJA is to eliminate\nfinancial disincentives for those who would defend against\nunjustified governmental action and thereby to deter the\nunreasonable exercise of Government authority.” Ardestani\nv. I.N.S., 502 U.S. 129, 138 (1991); see also Jean, 496 U.S.\nat 163 (“[T]he specific purpose of the EAJA is to eliminate\nfor the average person the financial disincentive to challenge\nunreasonable governmental actions.”). Congress\nspecifically intended the EAJA to deter unreasonable agency\nconduct. Jean, 496 U.S. at 163 n.11 (quoting the statement\nof purpose for the EAJA, Pub. L. No. 96-481, §§ 201–08,\n94 Stat. 2321, 2325–30 (1980)).\n\n\n\nargument, however, the government moved to voluntarily dismiss the\ncross-appeal and paid to Dr. Ibrahim the now uncontested amounts of\nattorneys’ fees and expenses awarded by the district court.\n\n36 IBRAHIM V. DHS\n\n The policy behind the EAJA “is to encourage litigants to\nvindicate their rights where any level of the adjudicating\nagency has made some error in law or fact and has thereby\nforced the litigant to seek relief from a federal court.” Li v.\nKeisler, 505 F.3d 913, 919 (9th Cir. 2007). “[W]e have\nconsistently held that regardless of the government’s\nconduct in the federal court proceedings, unreasonable\nagency action at any level entitles the litigant to EAJA fees.”\nId.\n\n “The EAJA applies to a wide range of awards in which\nthe cost of litigating fee disputes would equal or exceed the\ncost of litigating the merits of the claim.” Jean, 496 U.S. at\n163–64. The EAJA was designed to remedy this situation\nby providing for an award of reasonable attorneys’ fees to a\n“prevailing party” in a “civil action” unless the position\ntaken by the United States at issue “was substantially\njustified” or “special circumstances make an award unjust.”\nId. at 158; 28 U.S.C. § 2412(d)(1)(A).\n\n The EAJA specifically provides:\n\n Except as otherwise specifically provided by\n statute, a court shall award to a prevailing\n party other than the United States fees and\n other expenses, in addition to any costs\n awarded pursuant to subsection (a), incurred\n by that party in any civil action (other than\n cases sounding in tort), including\n proceedings for judicial review of agency\n action, brought by or against the United\n States in any court having jurisdiction of that\n action, unless the court finds that the position\n of the United States was substantially\n justified or that special circumstances make\n an award unjust.\n\n IBRAHIM V. DHS 37\n\n28 U.S.C. § 2412(d)(1)(A).\n\n Thus, as the Supreme Court held in Jean:\n\n eligibility for a fee award in any civil action\n requires: (1) that the claimant be “a\n prevailing party”; (2) that the Government’s\n position was not “substantially justified”;\n (3) that no “special circumstances make an\n award unjust”; and, (4) pursuant to 28 U.S.C.\n § 2412(d)(1)(B), that any fee application be\n submitted to the court within 30 days of final\n judgment in the action and be supported by\n an itemized statement.\n\n496 U.S. at 158.\n\n The district court correctly concluded that Dr. Ibrahim\nwas the prevailing party in this case. The third and fourth\nJean factors are not at issue. The only remaining issue as to\nDr. Ibrahim’s entitlement to fees is whether the\ngovernment’s position was substantially justified.\n\n A. Substantial Justification\n\n Where, as here, a movant under the EAJA has\nestablished that it is a prevailing party, “the burden is on the\ngovernment to show that its litigation position was\nsubstantially justified on the law and the facts.” Cinciarelli\nv. Reagan, 729 F.2d 801, 806 (D.C. Cir. 1984). To establish\nsubstantial justification, the government need not establish\nthat it was correct or “justified to a high degree”—indeed,\nsince the movant is established as a prevailing party it could\nnever do so—but only that its position is one that “a\nreasonable person could think it correct, that is, [that the\n\n38 IBRAHIM V. DHS\n\nposition] has a reasonable basis in law and fact.” 15 Pierce v.\nUnderwood, 487 U.S. 552, 565, 566 n.2 (1988). That the\ngovernment lost (on some issues) does not raise a\npresumption that its position was not substantially justified.\nEdwards, 834 F.2d at 802 (citation omitted). Fees may be\ndenied when the litigation involves questions of first\nimpression, but “whether an issue is one of first impression\nis but one factor to be considered.” United States v. Marolf,\n277 F.3d 1156, 1162 n.2 (9th Cir. 2002).\n\n When evaluating the government’s “position” under the\nEAJA, we consider both the government’s litigation position\nand the “action or failure to act by the agency upon which\nthe civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Thus,\nthe substantial justification test is comprised of two\ninquiries, one directed toward the government agency’s\nconduct, and the other toward the government’s attorneys’\nconduct during litigation. See Gutierrez v. Barnhart,\n274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive\none; we consider whether the government’s position “as a\nwhole” has “a reasonable basis in both law and fact.” Id. at\n1258, 1261; see also Meier v. Colvin, 727 F.3d 867, 870 (9th\nCir. 2013).\n\n The district court, invoking our decision in Corbin v.\nApfel, 149 F.3d 1051 (9th Cir. 1998), concluded that, in\nexceedingly complex cases, a court may appropriately\ndetermine whether the government was substantially\njustified at each “stage” of the litigation and make a fee\naward apportioned to those separate determinations. It\naccordingly disallowed fees for discrete positions taken by\nthe government at different stages of the litigation because,\n\n 15\n The partial dissent is incorrect to view the issue as solely a factual\none, as we must consider the law as applied to the facts.\n\n IBRAHIM V. DHS 39\n\nin its view, the government’s positions in each instance were\nsubstantially justified. This approach was error, as it is\ncontrary to the Supreme Court’s instructions in Jean.\n\n In Jean, the Supreme Court rejected the government’s\nargument that it could assert a “‘substantial justification’\ndefense at multiple stages of an action.” 496 U.S. at 158–\n59. Examining the statutory language, the Court noted the\ncomplete absence of any textual support for this position. Id.\nat 159. Moreover, “[s]ubsection (d)(1)(A) refers to an award\nof fees ‘in any civil action’ without any reference to separate\nparts of the litigation, such as discovery requests, fees, or\nappeals.” Id. The Court also noted that “[t]he reference to\n‘the position of the United States’ in the singular also\nsuggests that the court need make only one finding about the\njustification of that position.” Id. An amendment to the\nEAJA made clear that the “‘position of the United States’\nmeans, in addition to the position taken by the United States\nin the civil action, the action or failure to act by the agency\nupon which the civil action is based.” Pub. L. No. 99-80,\n§ 2(c)(2)(B), 99 Stat. 183, 185 (1985) (codified at 28 U.S.C.\n§ 2412(d)(2)(D)). As the Court reiterated, “Congress’\nemphasis on the underlying Government action supports a\nsingle evaluation of past conduct.” Jean, 496 U.S. at 159 n.7\n(citing H.R. Rep. No. 98-992, at 9, 13 (1984) (“[T]he\namendment will make clear that the Congressional intent is\nto provide for attorney fees when an unjustifiable agency\naction forces litigation, and the agency then tries to avoid\nsuch liability by reasonable behavior during the litigation.”),\nand S. Rep. No. 98-586, at 10 (1984) (“Congress expressly\nrecognized ‘that the expense of correcting error on the part\nof the Government should not rest wholly on the party whose\nwillingness to litigate or adjudicate has helped to define the\nlimits of Federal authority.’” (citation omitted))). The Jean\nCourt concluded that “[t]he single finding that the\n\n40 IBRAHIM V. DHS\n\nGovernment’s position lacks substantial justification, like\nthe determination that a claimant is a ‘prevailing party,’ thus\noperates as a one-time threshold for fee eligibility.” Id. at\n160.\n\n In sum, “[a]ny given civil action can have numerous\nphases,” as evidenced by the case at hand. Id. at 161. But\nthe Supreme Court clearly instructed, and almost all courts\nhave clearly understood, 16 that “the EAJA—like other fee-\n\n\n\n 16\n All but two circuits agree that “the EAJA—like other fee-shifting\nstatutes—favors treating a case as an inclusive whole, rather than as\natomized line-items.” See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494,\n498–99 (6th Cir. 2014) (adopting a single inquiry test and noting that\ndistrict courts cannot simply compare the number of successful claims to\nthe number of unsuccessful claims in a single appeal) (“Rather, the\nquestion is whether the government’s litigating position . . . is justified\nto a degree that could satisfy a reasonable person and whether it was\nsupported by law and fact.” (internal quotation marks and citations\nomitted)); United States v. 515 Granby, LLC, 736 F.3d 309, 315–17 (4th\nCir. 2013) (considering the government’s pre- and post-litigation\nconduct as a whole and noting that “an unreasonable prelitigation\nposition will generally lead to an award of attorney’s fees under the\nEAJA”); United States v. Hurt, 676 F.3d 649, 653–54 (8th Cir. 2012)\n(examining government’s conduct as a whole); Gomez-Beleno v. Holder,\n644 F.3d 139, 145 n.3 (2d Cir. 2011) (considering the government’s\nposition as a whole rather than making separate substantial justification\nfindings for different stages of the proceedings); Wagner v. Shinseki,\n640 F.3d 1255, 1259 (Fed. Cir. 2011) (assessing the government’s\nlitigation position in totality); Saysana v. Gillen, 614 F.3d 1, 5–7 (1st Cir.\n2010) (same); Hackett v. Barnhart, 475 F.3d 1166, 1173–74 (10th Cir.\n2007) (same); Sims v. Apfel, 238 F.3d 597, 602 (5th Cir. 2001) (same);\nUnited States v. Jones, 125 F.3d 1418, 1428–29 (11th Cir. 1997) (same);\nHanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993)\n(adopting a single inquiry test, though contrary to our holding in this\ncase, requiring a district court to “evaluate every significant argument\nmade by an agency … to determine if the argument is substantially\n\n IBRAHIM V. DHS 41\n\nshifting statutes—favors treating a case as an inclusive\nwhole, rather than as atomized line-items.” Id. at 161–62.\n\n Our decision in Corbin is inapposite because that case\nhinged on jurisdictional features present when we review\nagency actions, but not present here. 149 F.3d 1051. In\nCorbin, a case involving judicial review of the agency’s\ndenial of disability benefits, we upheld EAJA fee awards that\nwere apportioned to successive stages of the underlying\n\njustified” as “necessary to . . . determine whether, as a whole, the\nGovernment’s position was substantially justified”).\n\n The D.C. and Seventh Circuits stand alone in declining to adopt a\nsingle inquiry test. The D.C. Circuit has rejected a reading of Jean that\nwould preclude a claim-by-claim determination on the ground that such\na rule would render the EAJA a “virtual nullity” because government\nconduct is nearly always grouped with or part of some greater, and\npresumably justified, action. Air Transport Ass’n of Canada v. F.A.A.,\n156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh\nCircuit has cautioned against taking “judicial language out of context,”\nreasoning that Jean “does not address the question whether allocation is\npermissible under the [EAJA], thus allowing an award of fees for the part\nof the government’s case that was not substantially justified.” Gatimi v.\nHolder, 606 F.3d 344, 350 (7th Cir. 2010). We understand these\nconcerns, but we think that Congress clearly contemplated the denial of\nattorneys’ fees even where some of the litigation conduct was unjustified\nwhen it used the qualifying term “substantial” rather than “total” or\n“complete.” See 28 U.S.C. § 2412(d)(1)(A); see also United States v.\nRubin, 97 F.3d 373, 375–76 (9th Cir. 1996) (affirming the district court’s\ndenial of fees because the government was substantially justified in most,\nbut not all, of its positions). Further, we conclude that this happenstance\nwill predominantly affect cases challenging the government agency’s\nlitigation position, and likely have little effect in cases where the\ngovernment agency’s conduct is unjustified, as EAJA “fees generally\nshould be awarded where the government’s underlying action was\nunreasonable even if the government advanced a reasonable litigation\nposition.” Marolf, 277 F.3d at 1159.\n\n42 IBRAHIM V. DHS\n\nlitigation, in which we reversed and remanded for further\nproceedings before the agency. 17 Id. at 1052. Because\nCorbin prevailed upon judicial review and was the prevailing\nparty at that stage—whatever the ultimate disposition of his\ndisability claim—he was entitled to EAJA attorneys’ fees.\nId. at 1053. But, the administrative review context is unique\nbecause the different stages of the litigation are reviewed by\ndifferent, unconnected quasi-judicial systems. In\nadministrative review cases, we award fees when we vacate\nan administrative determination and require the agency to\nconduct new proceedings. See, e.g., Rueda-Menicucci v.\nI.N.S., 132 F.3d 493, 495 (9th Cir. 1997) (awarding fees to\nprevailing petitioners on a petition for review from a Board\nof Immigration Appeals proceeding without regard to\nwhether they would later succeed on underlying asylum\nclaims, explaining that “the remand terminates judicial\nproceedings and results in the entry of a final judgment”);\nKelly v. Nicholson, 463 F.3d 1349, 1355–56 (Fed. Cir. 2006)\n(reversing and remanding denial of EAJA fees after an\nerroneous Agent Orange disability determination by the\nDepartment of Veterans Affairs); Former Emps. of Motorola\nCeramic Prods. v. United States, 336 F.3d 1360, 1361 (Fed.\nCir. 2003) (vacating and remanding denial of EAJA fees\nafter an erroneous analysis of readjustment of benefits by the\nDepartment of Labor). This eligibility for fees arises\nwhether the plaintiff challenges administrative action under\na statute specifically providing for review, as with the\nexamples above, or under an umbrella statute authorizing\nchallenges to agency action, such as the APA. See, e.g.,\n\n 17\n “Remand” is something of a misnomer, albeit one oft used in\nagency cases, as in fact “the civil action seeking judicial review of the\n. . . final decision,” Shalala v. Schaefer, 509 U.S. 292, 299 (1993)\n(internal citation and quotation marks omitted), is terminated, not\nremanded.\n\n IBRAHIM V. DHS 43\n\nWood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016)\n(granting “prevailing party” status for success on an APA\nclaim alleging procedural deficiencies, notwithstanding\nplaintiffs’ later loss on their “substantive” claims). By\ncontrast, the various stages at issue here were all part of one\nlitigation in federal court; the case was never returned to an\nagency for further proceedings. Therefore, Corbin does not\napply. 18\n\n The district court thus erred in its piecemeal approach to\nsubstantial justification. Most fundamentally, the agency\nposition upon which these going-on-thirteen years of\nlitigation was based was not justified at all, much less\nsubstantially. The district court correctly recognized as\nmuch, finding: “The original sin—Agent Kelley’s mistake\nand that he did not learn about his error until his deposition\neight years later—was not reasonable” under the EAJA.\nWhether the error is attributable to the failure to train Agent\nKelley, the counter-intuitive nature of the form (check the\ncategories that do NOT apply), the lack of cross-checking or\nother verification procedures, or anti-Muslim animus (Agent\nKelley interviewed Dr. Ibrahim on December 23, 2004, as\npart of an International Terrorism Investigation), the precise\ncause is irrelevant to, and does not mitigate, the lack of any\nbasis to place Dr. Ibrahim on the list, nor does it justify a\nreduction in fees. 19 See Marolf, 277 F.3d at 1159 (holding\n\n\n 18\n And even if Corbin did apply to this case, the district court\nmisapplied Corbin because it evaluated whether each individual\nargument at each stage of the litigation was substantially justified, rather\nthan the government’s position at each stage as a whole.\n 19\n We make no findings, nor can we on appeal, as to how this\nmistaken placement came about, and we ascribe no nefarious\nmotivations to the government as an entity. Again, we cannot know on\n\n44 IBRAHIM V. DHS\n\nthat EAJA “fees generally should be awarded where the\ngovernment’s underlying action was unreasonable even if\nthe government advanced a reasonable litigation position”).\n\n The district court correctly concluded that the\ngovernment’s litigation position—to defend the\nindefensible, its No Fly list error—was not reasonable. As\nthe district court stated, “[t]he government’s defense of such\ninadequate due process in Dr. Ibrahim’s circumstance—\nwhen she was concededly not a threat to national security—\nwas not substantially justified.”\n\n Those conclusions should have been the end of the\ndistrict court’s EAJA eligibility analysis. After the\ngovernment engaged in years of scorched earth litigation, it\nfinally conceded during trial in December 2013 that Dr.\nIbrahim is “not a threat to our country. She does not pose\n(and has not posed) a threat of committing an act of\ninternational or domestic terrorism with respect to an\naircraft, a threat to airline passenger or civil aviation\nsecurity, or a threat of domestic terrorism.” But the\ngovernment knew this in November 2004, when Agent\nKelley completed the form; it knew it in January 2005, when\nthe DHS agent told Dr. Ibrahim she was not on the No Fly\nlist; and it was well aware of it two weeks after Dr. Ibrahim\nfiled the underlying action, when a government agent\nordered her “Remove[d] from ALL watchlisting supported\nsystems (For terrorist subjects: due to closure of case AND\nno nexus to terrorism)” and further stated that Dr. Ibrahim\nwas not qualified for placement on either the No Fly or TSA\nSelectee lists. Yet knowing this, the government essentially\n\n\nthis record precisely why Dr. Ibrahim’s name was listed on the TSDB\nwatchlist to begin with.\n\n IBRAHIM V. DHS 45\n\ndoubled-down over the course of the litigation with a no-\nholds-barred defense.\n\n That some of the arguments made along the way by the\ngovernment attorneys passed the straight face test until they\nwere reversed on appeal does not persuade us that the\ngovernment’s position was substantially justified. 20 And the\ncourt is to consider the government agencies’ conduct during\n\n 20\n We do not find that the government’s defense of this litigation\nwas unreasonable at all points of the litigation. Instead, what was not\nsubstantially justified was the government’s continued defense of issues\neven after the reasons justifying their defense disappeared. For example,\nthe government was justified in initially raising standing arguments, but\nwas not justified in continuing to raise the same meritless standing\narguments on numerous occasions once that issue had been definitively\nresolved by both our court and the district court. In a similar vein, while\nthe government may have been justified in defending this litigation and\nrefusing to tell Dr. Ibrahim her No Fly list status pursuant to its Glomar\npolicy—a policy whereby the government refuses to confirm or deny the\nexistence of documents in response to a Freedom of Information Act\nrequest, see N.Y. Times v. U.S. Dep’t of Justice, 756 F.3d 100, 105 (2d\nCir. 2014), amended by 758 F.3d 436 (2d Cir. 2014)—any justification\nit had to defend Dr. Ibrahim’s No Fly list status vanished once she was\nmade aware of her watchlist statuses and it had admitted its mistake in\n2013.\n\n Further, when considering the government’s litigation position, we\nalso consider the government’s positions on discovery and other non-\nmerits issues, i.e., the government’s conduct as a whole. See United\nStates v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996) (citing United States v.\nPowell, 379 U.S. 48, 57–58 (1964)) (considering government’s conduct\nduring discovery when performing substantial justification inquiry).\nHere, as discussed at length below, the government played discovery\ngames, made false representations to the court, misused the court’s time,\nand interfered with the public’s right of access to trial. Thus, the\ngovernment attorneys’ actual conduct during this litigation was ethically\nquestionable and not substantially justified.\n\n46 IBRAHIM V. DHS\n\nthe course of this litigation as well. See 28 U.S.C.\n§ 2412(d)(2)(D) (“‘position of the United States’ means, in\naddition to the position taken by the United States in the civil\naction, the action or failure to act by the agency upon which\nthe civil action is based”). From the suit’s inception, the\ngovernment agencies’ actions, including their on-again, off-\nagain placement of Dr. Ibrahim on various government\nwatchlists; refusal to allow her to reenter the United States\nat all, even to attend her own trial; and delay of her\nU.S.-born, U.S.-citizen daughter’s attendance at trial, were\nunreasonable and served only to drive up attorneys’ fees.\nIndeed, as a consequence of the government’s conduct, Dr.\nIbrahim was deposed in London, England, as opposed to the\nNorthern District of California—which also drove up the\ncosts and fees.\n\n In sum, neither the agencies’ conduct nor the\ngovernment’s litigation position was substantially\njustified. 21 The EAJA mandates that attorneys’ fees be\n\n 21\n The partial dissent argues that “Supreme Court precedent requires\nthat we allow the district court to make [the] determination” as to\nwhether the government’s position was substantially justified.\nConcurring & Dissenting Op. at 78 (citing Pierce, 487 U.S. at 560); see\nalso id. at 78–81. Not so. The dissent is actually quoting from the\nportion of the Pierce decision where Justice Scalia is deciding which of\nthe three general standards of review should apply to the district court’s\n“substantial justification” determination—de novo, clear error, or abuse\nof discretion. Pierce, 487 U.S. at 558. He decides that the abuse of\ndiscretion standard applies because the appropriate degree of deference\nis inherent in the standard itself. Id. at 559–63. Here, we applied the\nabuse of discretion standard and concluded the district court abused its\ndiscretion. Notably, in Pierce, the Court also declared that an abuse of\ndiscretion standard will “implement our view that a ‘request for\nattorney’s fees should not result in a second major litigation.’” Id. at 563\n(quoting Hensley, 461 U.S. at 437). But that is exactly what has\nhappened here. See infra Part V. We have already engaged in the\n\n IBRAHIM V. DHS 47\n\nawarded to Dr. Ibrahim’s attorneys, subject only to\nreasonableness review. Jean, 496 U.S. at 161. “It remains\nfor the district court to determine what fee is ‘reasonable.’”\nHensley, 461 U.S. at 433.\n\n B. Reasonableness\n\n In Hensley, the Supreme Court set out a two-pronged\napproach for determining the amount of fees to be awarded\nwhen a plaintiff prevails on only some of his claims for relief\nor achieves “limited success.” Sorenson v. Mink, 239 F.3d\n1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 436–\n37). First, we ask, “did the plaintiff fail to prevail on claims\nthat were unrelated to the claims on which he succeeded?”\nHensley, 461 U.S. at 434. This inquiry rests on whether the\n“related claims involve a common core of facts or are based\non related legal theories,” Webb v. Sloan, 330 F.3d 1158,\n1168 (9th Cir. 2003) (citing Hensley, 461 U.S. at 435), with\n“the focus . . . on whether the claims arose out of a common\ncourse of conduct,” id. at 1169 (emphasis added) (citing\nSchwarz, 73 F.3d at 903 (interpreting Hensley)). Second, we\nask whether “the plaintiff achieve[d] a level of success that\nmakes the hours reasonably expended a satisfactory basis for\nmaking a fee award?” Hensley, 461 U.S. at 434. If the court\nconcludes the prevailing party achieved “excellent results,”\nit may permit a full fee award—that is, the entirety of those\nhours reasonably expended on both the prevailing and\nunsuccessful but related claims. Id. at 435; Schwarz, 73 F.3d\nat 905–06.\n\n\n\n\n“unusual expense” of reviewing over 7,000 pages of record and over\n1,000 pages of trial exhibits, Pierce, 487 U.S. at 560, and we see no\nfurther need to triplicate this work.\n\n48 IBRAHIM V. DHS\n\n 1. “Unsuccessful Claims”\n\n The district court erroneously determined that Dr.\nIbrahim was entitled to reasonable fees and expenses with\nrespect to only her procedural due process claim, which\nprovided her with substantial relief, and her related\nsubstantive due process and APA claims. Because Dr.\nIbrahim’s equal protection, APA, substantive due process,\nand First Amendment claims “would not lead to any greater\nrelief than [what the district court had] already ordered,” the\ndistrict court declined to reach them. The district court then\ntreated these unreached claims as unsuccessful, even while\nacknowledging that Dr. Ibrahim “did not outright lose on\nthese claims,” and disallowed counsel’s reasonable fees and\nexpenses on the “unrelated” First Amendment and equal\nprotection claims. This overall approach was error.\n\n The Hensley Court recognized that in complex civil\nrights litigation, plaintiffs may raise numerous claims, not all\nof which will be successful: “Litigants in good faith may\nraise alternative legal grounds for a desired outcome, and the\ncourt’s rejection of or failure to reach certain grounds is not\na sufficient reason for reducing a fee. The result is what\nmatters.” Hensley, 461 U.S. at 435 (emphasis added). And\nwhere, as here, “a plaintiff has obtained excellent results, his\nattorney should recover a fully compensatory fee.” Id. The\ndistrict court’s rationale—that because Dr. Ibrahim won\nsubstantial relief on one claim, and it was therefore\nunnecessary to reach her other equally pursued claims that\ncould also lead to the same relief, no fees were available for\nthe unreached claim—turns Hensley on its head.\n\n We are aware of no court that has held that a plaintiff\nwho obtains full relief on some claims, thereby rendering it\nunnecessary to reach the remaining claims, “lost” on the\nunreached claims. When confronted with this question, our\n\n IBRAHIM V. DHS 49\n\nsister circuits that have addressed the issue have uniformly\ndeclined to adopt the district court’s analysis. The Sixth\nCircuit “decline[d] the government’s invitation to apportion\n[plaintiff’s] attorney fees to the single claim addressed in\n[its] previous opinion.” Sakhawati v. Lynch, 839 F.3d 476,\n480 (6th Cir. 2016). The Eighth Circuit also refused to\nreduce fees where the district court found in plaintiffs’ favor\non their state claim without reaching the federal claims,\nbecause plaintiffs’ federal claims “were alternative grounds\nfor the result the district court reached” and “plaintiffs fully\nachieved [their] goal by prevailing on their state\nconstitutional claim.” Emery v. Hunt, 272 F.3d 1042, 1047\n(8th Cir. 2001). And the Seventh Circuit rejected\ndefendants’ argument that plaintiff did not succeed on her\nsexual harassment claim where “the court did not find in\n[defendant’s] favor on the sexual harassment claim; it\nmerely did not reach the merits of the issue.” Dunning v.\nSimmons Airlines, Inc., 62 F.3d 863, 874 (7th Cir. 1995).\n\n We agree with our sister circuits that a district court’s\n“failure to reach” certain grounds does not make those\ngrounds “unsuccessful,” and conclude that the district court\nclearly erred in holding that Dr. Ibrahim’s unreached claims\nwere “unsuccessful.”\n\n 2. Related Claims\n\n The district court and the original panel exacerbated this\nerror in analyzing whether the claims the district court did\nnot reach were related to her successful claims. The district\ncourt correctly concluded that Dr. Ibrahim’s substantive due\nprocess and APA claims were related to her prevailing\nprocedural due process claim and allowed recovery of some\nof those fees and expenses. Without much analysis,\nhowever, the district court also concluded that her equal\nprotection and First Amendment claims were not related\n\n50 IBRAHIM V. DHS\n\n“because they involved different evidence, different\ntheories, and arose from a different alleged course of\nconduct.” The three-judge panel stepped into the breach\nwith its newly devised “mutually exclusive” rationale to\ndetermine that the claims were unrelated because, after trial,\nthe district court found that Dr. Ibrahim was placed on the\nNo Fly list due to negligence, and her First Amendment and\nequal protection claims alleged intentional discrimination.\nThe three-judge panel concluded that the two mens rea\nrequirements were “mutually exclusive.”\n\n But both the district court and the now-withdrawn\nopinion failed to follow clear precedent to the contrary. The\nCourt made clear in Hensley that, while hours spent on an\nunsuccessful claim “that is distinct in all respects from [the\nplaintiff’s] successful claim” should be excluded, “[w]here\na lawsuit consists of related claims, a plaintiff who has won\nsubstantial relief should not have his attorney’s fee reduced\nsimply because the district court did not adopt each\ncontention raised.” 461 U.S. at 440. Construing the Hensley\nCourt’s statement that claims are “unrelated” if they are\n“entirely distinct and separate” from the prevailing claims,\nwe have held that “related claims involve a common core of\nfacts or are based on related legal theories.” Webb, 330 F.3d\nat 1168 (citations omitted). We do not require commonality\nof both facts and law to conclude that claims are related. Id.\nRather “the focus is to be on whether the unsuccessful and\nsuccessful claims arose out of the same ‘course of conduct.’\nIf they didn’t, they are unrelated under Hensley.” Schwarz,\n73 F.3d at 903. The three-judge panel’s introduction of the\nmutual-exclusivity test is contrary to Supreme Court\n\n IBRAHIM V. DHS 51\n\nprecedent, 22 our precedent, 23 and the precedent of every\nother circuit interpreting Hensley that has addressed the\nquestion. 24 We are aware of no other court that has adopted\n\n 22\n See, e.g., Hensley, 461 U.S. at 438 (concluding that, despite the\ndifferences in legal theories and some facts, “[g]iven the interrelated\nnature of the facts and legal theories in this case, the District Court did\nnot err in refusing to apportion the fee award mechanically on the basis\nof respondents’ success or failure on particular issues”).\n\n 23\n See, e.g., Webb, 330 F.3d at 1169 (holding that the plaintiff’s\nunsuccessful false arrest claim was “unquestionably” related to the\nsuccessful claims for false imprisonment and malicious prosecution, and\nallowing his attorney to recover fees for time spent in pursuit of that\nclaim because “all [of plaintiff’s] claims arose out of a common core of\nfacts and a common course of conduct: Plaintiff’s arrest, detention, and\nprosecution”); see also Thorne v. City of El Segundo, 802 F.2d 1131,\n1142 (9th Cir. 1986) (reasoning that a police department clerk-typist’s\nclaims for discriminatory hiring and unconstitutionally obtained\ninformation could be related because they both concerned a polygraph\ninterview she underwent during which the department discussed her\nsexual history); cf. Schwarz, 73 F.3d at 902–04 (determining that an\nemployee’s claims of employment discrimination against offices in\nPhoenix, Arizona and Portland, Oregon were distinct because they were\npredicated on independently discriminatory conduct by different actors,\nrelating to different employment positions, in different states).\n\n 24\n See, e.g., Murphy v. Smith, 864 F.3d 583, 586 (7th Cir. 2017)\n(“Where claims are closely related, however, a plaintiff who obtains\nexcellent results should recover a fully compensatory fee even if he did\nnot prevail on every contention in the lawsuit or if a court rejected or did\nnot reach certain grounds supporting the excellent result.” (citation\nomitted)); Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016)\n(declining to reduce fees where all of the claims pertained to one asylum\napplication and related evidence); SecurityPoint Holdings, Inc. v.\nTransp. Sec. Admin., 836 F.3d 32, 41 (D.C. Cir. 2016) (“We believe that\n[the plaintiff’s] petition for review presented only one claim for relief—\nthat TSA’s denial of the cease-and-desist request was unlawful and must\nbe set aside. Its assertion of several distinct grounds does not create\nmultiple claims. But even if we treated the various grounds as separate\n\n52 IBRAHIM V. DHS\n\n\nclaims, they are related in the sense meant by Hensley.” (citation\nomitted)); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir.\n2000) (applying Hensley to 42 U.S.C. § 2000e-5(k) and finding that the\nplaintiff’s “state claims of assault and battery, outrage, and negligent\nretention shared a common core of facts with her Title VII claims, all of\nwhich arose from [the defendant’s] alleged sexual harassment of [the\nplaintiff]”); United States v. Jones, 125 F.3d 1418, 1430 (11th Cir. 1997)\n(“[U]nder Hensley, a plaintiff who has prevailed against the United\nStates on one claim may recover for all the hours reasonably expended\non the litigation even though he or she failed to prevail on other claims\ninvolving a common core of facts or related legal theories.”); Jane L. v.\nBangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) (“We have refused to\npermit the reduction of an attorneys fee request if successful and\nunsuccessful claims are based on a ‘common core of facts.’ . . . Claims\nare also related to each other if based on ‘related legal theories.’”\n(citations omitted)); Keely v. Merit Sys. Prot. Bd., 793 F.2d 1273, 1275–\n76 (Fed. Cir. 1986) (rejecting the government’s argument that the court\nshould reduce attorneys’ fees and individually evaluate each of the\nplaintiff’s separate arguments where the plaintiff only prevailed on one);\nCitizens Council of Del. Cty. v. Brinegar, 741 F.2d 584, 596 (3d Cir.\n1984) (concluding that “it is clear that there was a sufficient\ninterrelationship among the essential claims advanced by the plaintiff in\nthe course of the litigation that the district court was not required to\napportion fees based on the success or failure of any particular legal\nargument advanced by the plaintiffs”); cf. Paris v. U.S. Dep’t of Hous.\n& Urban Dev., 988 F.2d 236, 240 (1st Cir. 1993) (concluding, in the\ncontext of analyzing a related provision of the Fair Housing Act, that if\nthe case involves what is essentially a single claim arising from “a\ncommon nucleus of operative fact,” and the plaintiff advances separate\nlegal theories that “are but different statutory avenues to the same goal,”\nthen all of the time should be compensable), overruled on other grounds\nby Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &\nHuman Res., 532 U.S. 598 (2001).\n\n Only the Second Circuit has interpreted Hensley to allow the\nlodestar reductions in cases where multiple claims involve a common\nnucleus of fact. Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d\nCir. 2005) (“[A] district judge’s authority to reduce the fee awarded to a\nprevailing plaintiff below the lodestar by reason of the plaintiff’s ‘partial\nor limited success’ is not restricted . . . to cases of multiple discrete\n\n IBRAHIM V. DHS 53\n\nthe mutual-exclusivity test, and we now disavow its use as a\nstandard for relatedness.\n\n All of Dr. Ibrahim’s claims arose from a “common\ncourse of conduct” and are therefore related under Hensley.\nSee Webb, 330 F.3d at 1169. The First Amended Complaint\nat bottom was a challenge to “defendants’ administration,\nmanagement, and implementation of the ‘No-Fly List.’”\nSpecifically, Dr. Ibrahim alleged that the manner in which\nthe government created, maintained, updated, and\ndisseminated the No Fly list led to the humiliating treatment\nshe experienced at SFO in January 2005 and afterwards, as\nshe was unable to learn whether she was on or off the list or\nwhy she was placed there in the first place. She alleged\nseveral alternative theories for this treatment, five of which\nultimately went to trial against the federal government. That\nthe government’s actions arose from negligence or\nunconstitutional animus could not have been known until the\ncase was tried, and we still do not know whether, in addition\nto Agent Kelley’s negligence in placing her on the No Fly\nlist, the government’s initial interest in Dr. Ibrahim stemmed\nfrom its allegedly heightened interest in foreign students\nfrom Muslim countries here on U.S. student visas, 25 or her\n\n\ntheories . . . .”). The Fourth and Fifth Circuits have not yet reached this\nissue. See Vaughns by Vaughns v. Bd. of Educ. of Prince George’s Cty.,\n770 F.2d 1244, 1245 (4th Cir. 1985) (affirming the district court’s fee\ndetermination based on the standard of review, and not reaching whether\nits relatedness analysis, which focused on whether the claims arose from\na common course of conduct, was accurate).\n\n 25\n In opening argument at trial, Dr. Ibrahim’s attorney Elizabeth\nPipkin stated:\n\n In another Homeland Security presidential directive,\n the president calls for the end of abuse of student visas\n\n54 IBRAHIM V. DHS\n\nhusband’s recent visit, or her regular attendance at a mosque,\nor her involvement in the Islamic Society of Stanford\nUniversity, which, if true, would have shown discriminatory\nintent. And because the district court did not reach the First\nAmendment and equal protection claims, we will never\nknow whether placement on the TSDB was a result of\ndiscrimination on the basis of her race, religion, country of\norigin, or association with Muslims and Muslim groups.\n\n There is no question that all of these claims arise from\nthe government’s common course of conduct toward Dr.\nIbrahim. To hold otherwise would ignore the realities of\nlawyering. As here, the key question in a lawsuit is often not\nwhat happened—but why. Before the litigation begins and\nwhile it is ongoing, the plaintiff and her lawyers cannot\nknow for sure why someone else did something, but may, as\nhere, have evidence suggesting various possibilities. So, as\nhere, the plaintiff raises alternative claims and theories as to\n\n\n and increased the scrutiny of foreign students during\n the time that Dr. Ibrahim was studying at Stanford. In\n the months prior to the November 2004 presidential\n election and continuing up until the inauguration, the\n government ramped up its efforts to interrogate\n Muslims in America in a national dragnet called the\n October Plan, or Operation Front Line.\n\n The government’s decision to target foreign students\n had a strong effect on the Muslim student community\n at Stanford. That community emailed its members,\n including Dr. Ibrahim, to advise them that there may\n be an increased likelihood that law enforcement would\n contact them and that if they were contacted, they\n should cooperate.\n\nThe district court never made a factual finding regarding whether this\nallegation was true.\n\n IBRAHIM V. DHS 55\n\nwhy something was done, some of which may be ultimately\ninconsistent, with regard to a single set of facts. The\nplaintiff’s claims are then tested by dispositive motions,\ndiscovery, and perhaps (as happened here) trial. The fact\nthat one claim or theory is eventually determined to be true\ndoes not mean that the claims were unrelated to one another.\n\n It is common to plead that a defendant committed some\nact “intentionally, knowingly, or recklessly,” or\nsimultaneously to bring different claims premised on distinct\nmental states. This widely accepted litigation strategy is\naccommodated by the clear standard pronounced by the\nSupreme Court and previously applied by our court, which\nfocuses on whether the claims are premised on an “entirely\ndistinct and separate” set of facts, not whether they are based\non different “mental states.” The analysis in the now-\nwithdrawn opinion shows that had it applied the correct\nstandard, it would have recognized that all of Dr. Ibrahim’s\nclaims were based on the same set of facts—the placement\nof Dr. Ibrahim’s name on the government’s watchlists—\nregardless of what “mental state” was required to prove each\nparticular claim. Ibrahim III, 835 F.3d at 1063 (“[I]f the\ngovernment negligently placed [Dr.] Ibrahim on its\nwatchlists because it failed to properly fill out a form, then it\ncould not at the same time have intentionally placed [Dr.]\nIbrahim on the list based on constitutionally protected\nattributes [Dr.] Ibrahim possesses, and vice versa.”).\n\n Allowing hindsight to creep in to fee awards also would\nput lawyers in an untenable ethical position. Res judicata\nbars claims that could have been raised in an earlier litigation\nthat arise out of the same “transactional nucleus of facts.”\nOwens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,\n714 (9th Cir. 2001) (internal quotation marks and citation\nomitted). Ethical obligations—or perhaps more likely, the\n\n56 IBRAHIM V. DHS\n\nspecter of malpractice liability—thus require a lawyer to\nbring all reasonably related, viable claims in a single\naction. 26 But the three-judge panel’s “mutually exclusive”\n\n 26\n Our sister circuits have recognized the difficult task facing\nlawyers navigating the complexities of civil rights litigation. The D.C.\nCircuit, for example, has emphasized that\n\n [a] lawyer who wins full relief for her client on one of\n several related claims . . . is not apt to be criticized\n because the court failed to reach some of the grounds,\n or even ruled against the client on them. . . . After the\n fact, it is of course easier to identify which arguments\n were winners and which were losers and state\n forcefully how an attorney’s time could have been\n better spent. But litigation is not an exact science. In\n some cases, the lawyer’s flagship argument may not\n carry the day, while the court embraces a secondary\n argument the lawyer rated less favorably. That is\n precisely why lawyers raise alternative grounds—a\n practice which is explicitly sanctioned by our Rules of\n Civil Procedure.\n\nGoos v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995);\nsee also id. at 1384–86.\n\n The Seventh Circuit similarly has rejected the panel’s ex post\napproach:\n\n For tactical reasons and out of caution lawyers often\n try to state their client’s claim in a number of different\n ways, some of which may fall by the wayside as the\n litigation proceeds. The lawyer has no right to\n advance a theory that is completely groundless or has\n no factual basis, but if he presents a congeries of\n theories each legally and factually plausible, he is not\n to be penalized just because some, or even all but one,\n are rejected, provided that the one or ones that succeed\n give him all that he reasonably could have asked for.\n\n IBRAHIM V. DHS 57\n\nrule raises the possibility that some fraction (perhaps a\nsubstantial one) of these reasonably related, ethically\ncompelled claims, which a lawyer must research and litigate,\nwill be excluded from a fee award.\n\n Dr. Ibrahim’s lawyers may have violated\n their ethical duties and risked malpractice if\n they had failed to bring all claims that their\n client could present in good faith. See Model\n Rules of Prof’l Conduct r. 1.3 cmt. (Am. Bar\n Ass’n 2016) (“A lawyer should pursue a\n matter on behalf of a client despite\n opposition, obstruction or personal\n inconvenience to the lawyer, and take\n whatever lawful and ethical measures are\n required to vindicate a client’s cause or\n endeavor.”). Dr. Ibrahim and her lawyers\n faced an uphill battle. The government\n vigorously defended this case, and Dr.\n Ibrahim did not have access to meaningful\n discovery until a few months before trial,\n after years of litigation and two appeals—she\n was fighting blind against the Many-Faced\n\n\n\n\nLenard v. Argento, 808 F.2d 1242, 1245–46 (7th Cir. 1987). Other\ncircuits are in accord. See, e.g., Jordan v. City of Cleveland, 464 F.3d\n584, 604 (6th Cir. 2006) (“[L]itigation is not an ‘exact science’: Lawyers\ncannot preordain which claims will carry the day and which will be\ntreated less favorably.”); Robinson v. City of Edmond, 160 F.3d 1275,\n1283 (10th Cir. 1998) (“Litigants should be given the breathing room to\nraise alternative legal grounds without fear that merely raising an\nalternative theory will threaten the attorney’s subsequent\ncompensation.”).\n\n58 IBRAHIM V. DHS\n\n Bureaucratic God. 27 And as demonstrated by\n the complex and longstanding procedural\n history, it was not even clear that Dr. Ibrahim\n could advance the case beyond the dismissal\n stage.\n\n Applying the correct “common course of conduct” test\nto Dr. Ibrahim’s claims for procedural and substantive due\nprocess, violations of her First Amendment and equal\nprotection rights and the APA, we conclude that Dr. Ibrahim\nmeets the first prong of Hensley. All of Dr. Ibrahim’s claims\narose from her wrongful placement on the No Fly list, and\nare therefore related. Fees for each of these claims are thus\nrecoverable. All of these claims derive from the\ngovernment’s interest in Dr. Ibrahim’s activities, which led\nto her placement on the No Fly list, her placement on and off\nvarious other watchlists (which the district court deemed\n“Kafkaesque”), her attempts to learn why she was on the No\nFly list, her attempts to get herself removed from the No Fly\nlist, and the government’s intransigence in setting the record\nstraight for almost a decade. As the district court found, this\ntreatment had a “palpable impact, leading to the humiliation,\ncuffing, and incarceration of an innocent and incapacitated\nair traveler.” Dr. Ibrahim’s “litany of troubles” flow directly\nfrom her erroneous placement on the No Fly list, as do all of\nthe claims that went to trial. None of the claims was distinct\nor separable from another, and each claim sought the same\nrelief Dr. Ibrahim ultimately obtained.\n\n\n\n\n 27\n See Game of Thrones: The Red Woman (Home Box Office, Inc.\nbroadcast Apr. 24, 2016).\n\n IBRAHIM V. DHS 59\n\n 3. Level of Success\n\n Dr. Ibrahim also satisfied Hensley’s second prong\nbecause she “achieved a level of success that makes the\nhours reasonably expended a satisfactory basis for making a\nfee award.” Sorenson, 239 F.3d at 1147 (internal\npunctuation omitted) (quoting Hensley, 461 U.S. at 434).\nThe district court found that Dr. Ibrahim had only “limited”\nsuccess. We disagree.\n\n The achievement of Dr. Ibrahim and her attorneys in\nsuccessfully challenging her No Fly list placement and\nforcing the government to fix its error was not just\n“excellent,” but extraordinary. Hensley, 461 U.S. at 435.\nAlthough this is not a class action, and thus we assess Dr.\nIbrahim’s individual success, the pathbreaking nature of her\nlawsuit underscores her achievement. Dr. Ibrahim was the\nfirst person ever to force the government to admit a terrorist\nwatchlisting mistake; to obtain significant discovery\nregarding how the federal watchlisting system works; to\nproceed to trial regarding a watchlisting mistake; to force the\ngovernment to trace and correct all erroneous records in its\ncustomer watchlists and databases; to require the\ngovernment to inform a watchlisted individual of her TSDB\nstatus; and to admit that it has secret exceptions to the\nwatchlisting reasonable suspicion standard. Dr. Ibrahim, in\nher first appeal to our court, established that district courts\nhave jurisdiction over challenges to placement on terrorist\nwatchlists, including the No Fly list. Ibrahim I, 538 F.3d at\n1254–57. In her second appeal, she established that even\naliens who voluntarily depart from the U.S. have standing to\nbring constitutional claims when they have had a significant\nvoluntary connection with the U.S. Ibrahim II, 669 F.3d at\n993–94. Moreover, on her journey, Dr. Ibrahim established\nimportant principles of law, benefiting future individuals\n\n60 IBRAHIM V. DHS\n\nwrongfully placed on government watchlists. Previously,\nmost such challenges failed at the pleading stage. See, e.g.,\nShearson v. Holder, 725 F.3d 588 (6th Cir. 2013); Rahman\nv. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill.\nMar. 31, 2010); Scherfen v. U.S. Dep’t of Homeland Sec.,\nNo. 3:CV-08-1554, 2010 WL 456784 (M.D. Penn. Feb. 2,\n2010); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119\n(W.D. Wash. 2005).\n\n Dr. Ibrahim’s victory affected more than just her case—\nit affected the way all individuals can contest their placement\non these watchlists. 28 The EAJA\n\n rests on the premise that a party who chooses\n to litigate an issue against the Government is\n not only representing his or her own vested\n interest but is also refining and formulating\n public policy. An adjudication or civil action\n provides a concrete, adversarial test of\n Government regulation and thereby insures\n the legitimacy and fairness of the law.\n\nEscobar Ruiz v. I.N.S., 813 F.2d 283, 288 (9th Cir. 1987)\n(quoting H.R. Rep. No. 1418, at 10 (1980)). Dr. Ibrahim\nrefined federal watchlisting policy by creating a roadmap for\nother similarly situated plaintiffs to seek judicial redress for\nalleged wrongful placement on government watchlists. 29\n\n\n 28\n The government has since changed its policy regarding contesting\nplacement on the No Fly list. It now allows certain categories of\nindividuals to challenge their No Fly list status.\n 29\n For example, in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or.\n2014), where U.S. citizens and lawful permanent residents challenged\ntheir allegedly wrongful placement on the No Fly list, the district court\n\n IBRAHIM V. DHS 61\n\n The significance of Dr. Ibrahim’s roadmap cannot be\noverstated. Any person could have the misfortune of being\nmistakenly placed on a government watchlist, 30 and the\nconsequences are severe. 31 Placement on the No Fly list, if\n\nheld at the summary judgment stage that the DHS Traveler Redress\nInquiry Program process “falls far short of satisfying the requirements of\ndue process,” and that “the absence of any meaningful procedures to\nafford Plaintiffs the opportunity to contest their placement on the No-Fly\nList violates Plaintiffs’ rights to procedural due process.” Id. at 1161. In\nevaluating the procedural due process factors from Mathews v. Eldridge,\n424 U.S. 319 (1976), the Latif court cited to Dr. Ibrahim’s case, the only\navailable case involving a due process challenge to watchlisting\nprocedures, to find that the plaintiffs had been deprived of their liberty\ninterests in travel, and that the DHS redress process contains a high risk\nof erroneous deprivation of constitutionally-protected interests. 28 F.\nSupp. 3d at 1148, 1152–53. Today, relief from No Fly list errors is\nwidely recognized as available. See, e.g., Murtaza Hussain, How a\nYoung American Escaped the No Fly List, Intercept (Jan. 21, 2016,\n4:30 AM), https://theintercept.com/2016/01/21/how-a-young-american-\nescaped-the-No-Fly-list/.\n\n 30\n As of 2014, it was reported that there are 680,000 individuals\nlisted in the TSDB and 47,000 individuals listed on the No Fly list, and\nthat these lists are littered with errors. See Ibrahim II, 669 F.3d at 990\n(noting that there are significant numbers of erroneous placements on the\nfederal watchlists).\n\n 31\n Placement on the No Fly list can also affect an individual’s visa\neligibility, lead to arrest and temporary incarceration, and be considered\nin the probable cause inquiry of a bail determination. See United States\nv. Duque, No. CR-09-265-D, 2009 WL 3698127, at 5 (W.D. Okla. Nov.\n2, 2009) (describing presence on the VGTOF as part of “officers’\ncollective knowledge” reasonably used to determine probable cause for\nan arrest). What is more, “[the U.S. government] shares the TSDB\n[watchlisting database] with 22 foreign governments,” so there are\ndoubtless international repercussions even if a listed person never tries\nto enter the United States, fly over U.S. airspace, or use a U.S. carrier.\nIbrahim II, 669 F.3d at 993.\n\n62 IBRAHIM V. DHS\n\nleft unchanged, prevents an individual from ever boarding\nan airplane that touches the vast expanse of U.S. airspace.\nTravel by air has become a normal part of our lives, whether\nfor work, vacations, funerals, weddings, or to visit friends\nand family. In 2017 alone, there were 728 million airline\npassengers in the United States. 32 It is debilitating to lose\nthe option to fly to one’s intended destination. Today, those\nmisplaced on the No Fly list can contest that placement, and,\nif misplaced, regain their right to flight. See Saenz v. Roe,\n526 U.S. 489, 498 (1999) (“[T]he ‘constitutional right to\ntravel from one State to another’ is firmly embedded in our\njurisprudence.” (quoting United States v. Guest, 383 U.S.\n745, 757 (1966))).\n\n A full award of attorneys’ fees here is consistent with the\nEAJA’s goal of creating a level playing field in cases in\nwhich there is an imbalance of power and resources. “The\nEAJA grew out of a concern for the unequal position of the\nindividual vis à vis an insensitive and ever-expanding\ngovernmental bureaucracy. The House Report expresses\nconcern about the fact that . . . the government with its\ngreater resources and expertise can in effect coerce\ncompliance with its position.” Escobar Ruiz, 813 F.2d at\n288 (internal quotation marks and citation omitted). Dr.\nIbrahim—a professor and person of ordinary means—did\n\n Dr. Ibrahim suffered these consequences. She was deprived of her\nright to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958): she was unable\nto return to Stanford to pursue her degree; forced to leave the United\nStates permanently, without warning, after living here for thirteen years;\nand not allowed to return to testify at her own trial. She was arrested,\nHamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and humiliated, Paul v.\nDavis, 424 U.S. 693, 701, 711 (1976).\n 32\n See Airline Activity: National Summary (U.S. Flights), Bureau\nTransp. Stats., https://www.transtats.bts.gov/ (last visited July 26, 2018).\n\n IBRAHIM V. DHS 63\n\nnot have the resources to pay an attorney to pursue her\nclaims, which ultimately cost more than $3.6 million dollars\nto litigate. And the small seventeen-lawyer law firm that\nrepresented her, McManis Faulkner, had similarly limited\nresources, but, when others refused, they agreed to take on\nher case, uncertain whether they would ever be\ncompensated. On the other side of the table was the\ngovernment and its virtually unlimited resources. The\ngovernment had a team of twenty-six lawyers—more\nlawyers than McManis Faulkner employed—and spent at\nleast 13,400 hours—in other words, 558 days of one person\nworking 24 hours a day—vigorously defending this\nlitigation.\n\n Accordingly, we find that Dr. Ibrahim achieved excellent\nresults and is therefore entitled to reasonable fees consistent\nwith that outcome.\n\n C. Bad Faith\n\n Generally, attorneys’ fees are capped under the EAJA at\n$125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA\nprovides, however, that “[t]he United States shall be liable\nfor such fees and expenses to the same extent that any other\nparty would be liable under the common law.” 28 U.S.C.\n§ 2412(b). Thus, under the common law a court may assess\nattorneys’ fees against the government if it has “acted in bad\nfaith, vexatiously, wantonly, or for oppressive reasons.”\nRodriguez v. United States, 542 F.3d 704, 709 (9th Cir.\n2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–\n46 (1991)). “[W]e hold the government to the same standard\nof good faith that we demand of all non-governmental\nparties.” Id. The purpose of such an award is to “deter\nabusive litigation in the future, thereby avoiding harassment\nand protecting the integrity of the judicial process.”\nCopeland v. Martinez, 603 F.2d 981, 984 (D.C. Cir. 1979).\n\n64 IBRAHIM V. DHS\n\n“The district court may award attorney fees at market rates\nfor the entire course of litigation, including time spent\npreparing, defending, and appealing the two awards of\nattorney fees, if it finds that the fees incurred during the\nvarious phases of litigation are in some way traceable to the\n[government’s] bad faith.” Brown v. Sullivan, 916 F.2d 492,\n497 (9th Cir. 1990). And in evaluating whether the\ngovernment acted in bad faith, we may examine the\ngovernment’s actions that precipitated the litigation, as well\nas the litigation itself. Rawlings v. Heckler, 725 F.2d 1192,\n1195–96 (9th Cir. 1984); see also Hall v. Cole, 412 U.S. 1,\n15 (1973) (concluding that “the dilatory action of the union\nand its officers” in expelling an individual from the union\nfollowing his resolutions unsuccessfully condemning union\nmanagement’s alleged undemocratic and short sighted\npolicies constituted bad faith (internal quotation marks and\ncitation omitted)); Dogherra v. Safeway Stores, Inc.,\n679 F.2d 1293, 1298 (9th Cir. 1982) (concluding that an\nemployer would have acted in bad faith if it pursued a\ndefense of an action based on a lie).\n\n “A finding of bad faith is warranted where an attorney\nknowingly or recklessly raises a frivolous argument, or\nargues a meritorious claim for the purpose of harassing an\nopponent.” Primus Auto. Fin. Servs., Inc. v. Batarse,\n115 F.3d 644, 649 (9th Cir. 1997) (internal quotation marks\nand citation omitted). “Mere recklessness does not alone\nconstitute bad faith; rather, an award of attorney’s fees is\njustified when reckless conduct is combined with an\nadditional factor such as frivolousness, harassment, or an\nimproper purpose.” Rodriguez, 542 F.3d at 709 (internal\nquotation marks omitted) (quoting Fink v. Gomez, 239 F.3d\n989, 993–94 (9th Cir. 2001)). It is also shown when litigants\ndisregard the judicial process. Brown, 916 F.2d at 496\n(concluding that the “cumulative effect” of the Appeals\n\n IBRAHIM V. DHS 65\n\nCouncil’s review of a claim for social security benefits,\nincluding the “failure to review a tape of an ALJ’s hearing,\na statutory duty, and other acts that caused delay and\nnecessitated the filing and hearing of additional motions,\nviz., the Secretary’s delay in producing documents and in\ntranscribing the tape” constituted bad faith); see also Octane\nFitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct.\n1749, 1758 (2014) (allowing fee-shifting for willful\ndisobedience of a court’s order); Beaudry Motor Co. v. Abko\nProps., Inc., 780 F.2d 751, 756 (9th Cir. 1986) (bringing a\ncase barred by the statute of limitations); Toombs v. Leone,\n777 F.2d 465, 471–72 (9th Cir. 1985) (deliberately failing to\ncomply with local rules regarding exchange of exhibits);\nInt’l Union of Petroleum & Indus. Workers v. W. Indus.\nMaint., Inc., 707 F.2d 425, 428–29 (9th Cir. 1983) (refusing\nto abide by arbitrator’s award).\n\n Though the district court cited some of this relevant case\nlaw, including Rodriguez, Chambers, and Brown, it\nerroneously applied a piecemeal approach to its bad faith\ndetermination in conflict with the cases it cited. See\nRodriguez, 542 F.3d at 712. We have long established that\nto make a bad faith determination, we must review the\ntotality of the government’s conduct. See Brown, 916 F.2d\nat 496; see also Rawlings, 725 F.2d at 1196. However, “it is\nunnecessary to find that every aspect of a case is litigated by\na party in bad faith in order to find bad faith by that party.”\nRodriguez, 542 F.3d at 712.\n\n The district court clearly erred by failing to consider the\ntotality of the government’s conduct, particularly its\ncomportment after discovering Agent Kelley’s error. See\nMendenhall v. Nat’l Transp. Safety Bd., 92 F.3d 871 (9th Cir.\n\n66 IBRAHIM V. DHS\n\n1996). 33 In Mendenhall, we held that a government agency,\nthere the FAA, acted in bad faith, thereby allowing the\nprevailing party, Mendenhall, to recover fees at a reasonable\nmarket rate. We held that “[t]he moment the FAA\nacknowledged” that its complaint against her was baseless,\n“the agency was no longer justified in pursuing its action.”\nId. at 877. “The agency’s continuation of an action it knew\nto be baseless . . . is a prime example of bad faith.” Id.\n(internal quotation marks omitted) (quoting Brown, 916 F.2d\nat 495–96).\n\n The only post-litigation agency conduct that the district\ncourt considered was whether the government obstructed Dr.\nIbrahim or her daughter, Rafeah, from appearing at trial.\nThe court unreasonably concluded, at least with respect to\nRafeah, that there was no evidence that the government did\nso. That conclusion by the district court is “without support\nin inferences that may be drawn from the facts in the record”\nand is thus clearly erroneous. Crittenden v. Chappell,\n804 F.3d 998, 1012 (9th Cir. 2015). Dr. Ibrahim’s daughter,\na U.S. citizen with a U.S. passport, was flagged by the\n\n 33\n The district court made no findings as to whether the agencies\nacted in bad faith before litigation, and we do not have a record basis\nupon which to consider this argument. As the district court speculated,\nhowever, the government’s initial interest in Dr. Ibrahim may have\nrested on shaky constitutional grounds because it may have been\nmotivated by racial or religious animus. Dr. Ibrahim alleged that, at the\ntime Agent Kelley first investigated Dr. Ibrahim for potential\nwatchlisting placement, the government had a heightened interest in\nforeign students like her who were in the United States from Muslim\ncountries on U.S. student visas. Stanford University had specifically\ncontacted these students, warning them of the government’s potential\ninterest. However, because the district court did not reach this issue\ndespite having more familiarity with the extensive record, we cannot\nconclude that the government’s initial interest in Dr. Ibrahim was in bad\nfaith.\n\n IBRAHIM V. DHS 67\n\nNational Targeting Center (NTC) as potentially inadmissible\nto the United States. NTC determined that she had been\nlisted in the TSDB database by other government entities as\nan individual about whom those agencies possessed\n“substantive ‘derogatory’ information” that “may be\nrelevant to an admissibility determination under the\nImmigration and Nationality Act.” But, as a U.S. citizen, Dr.\nIbrahim’s daughter clearly was not subject to the INA.\n\n Although Dr. Ibrahim’s daughter carried a U.S. passport\nand U.S. Customs and Border Protection recognized that she\nappeared to be a U.S. citizen, NTC requested that Philippine\nAirlines perform additional screening of her in the following\ne-mail:\n\n [Subject line:] POSSIBLE NO BOARD\n REQUESTPNR WNDYJS\n\n [Body:] NOTICE TO AIR CARRIER The\n [DHS and U.S. Customs and Border\n Protection] recommends the airline to contact\n [the carrier liaison group] when the following\n passenger shows up to check in . . . .\n\nAfter Philippine Airlines received this notice, Rafeah was\nnot permitted to board her flight, causing her to miss her\nmother’s trial, where she had been listed as a witness. The\ngovernment did not update the TSDB to reflect that Dr.\nIbrahim’s daughter was a U.S. citizen until after it had\npurportedly investigated the situation.\n\n The district court also disregarded the government’s\nresponse to Agent Kelley’s error once the error was\ndiscovered. On remand, the district court should take into\naccount in its analysis of bad faith the government’s conduct\ntogether with the consequences Dr. Ibrahim suffered as a\n\n68 IBRAHIM V. DHS\n\nresult. For example, the district court failed to consider the\nFebruary 2006 order to remove Dr. Ibrahim from all\nwatchlist databases because she had “no nexus to terrorism.”\nDespite this order, the government continued to place Dr.\nIbrahim on and off federal watchlists, providing no\nreasonable explanation for Dr. Ibrahim’s never-ending\ntransitions in watchlist status. Further, the only justification\nfor her continued watchlist placement is claimed to be a state\nsecret. This assertion begs the question: Why was Dr.\nIbrahim added to any watchlist once the government\ndetermined she was not a threat? Moreover, was there any\njustification for her seemingly random addition to and\nremoval from watchlists? The district court should also\nconsider the government’s failure to remedy its own error\nuntil being ordered to do so and its failure to inform Agent\nKelley of his mistake for eight years. 34\n\n The district court also wrongly rejected as a basis for bad\nfaith the government’s numerous requests for dismissal on\nstanding grounds post-Ibrahim II, where we determined\nunequivocally that Dr. Ibrahim had Article III standing even\nthough she voluntarily left the United States. The\ngovernment knowingly pursued baseless standing arguments\nin its third motion to dismiss, its motion for summary\njudgment, statements during trial, and post-trial proposed\nfindings of fact and conclusions of law. The district court\nfound that the government’s position was “unreasonable,”\nparticularly after it “continue[d] to seek dismissal based on\n\n 34\n Even after Agent Kelley learned of his mistake, Agent Kelley\nnever reviewed his old files to see if he had accidentally nominated\nothers to the No Fly list in the hope it was a one-time mistake. But Agent\nKelley’s hope was not grounded in reality. If Agent Kelley nominated\nDr. Ibrahim because he misread the form, this may well not have been a\none-time event—he likely would have made the same mistake other\ntimes he used the same form.\n\n IBRAHIM V. DHS 69\n\nlack of standing in the face of our court of appeal’s\ndecision,” but it did not account for this unreasonableness in\nits bad faith determination. See Ibrahim II, 669 F.3d at 997.\nThis was contrary to our longstanding precedent that when\nan attorney knowingly or recklessly raises frivolous\narguments, a finding of bad faith is warranted. Fink,\n239 F.3d at 993–94; see also Optyl Eyewear Fashion Int’l\nCorp. v. Style Cos., 760 F.2d 1045, 1052 (9th Cir. 1985). As\nthe district court acknowledged, “the government should\nhave sought review by the United States Supreme Court,”\nrather than to repeatedly assert an argument for dismissal it\nknew to be baseless.\n\n Although the district court concluded that “the\ngovernment was wrong to assure all that it would not rely on\nstate-secrets evidence and then reverse course and seek\ndismissal at summary judgment,” it incorrectly found that\nthe error was not knowingly or recklessly made. The\ngovernment falsely represented to both the district court and\nto Dr. Ibrahim’s counsel—orally in court and in written\nfilings—that it would not rely on evidence withheld on the\nbasis of a privilege to “prevail in this action.” 35 And yet,\nafter these representations, the government raised the very\n 35\n The government explicitly stated in a response to a court order\nasking the government to confirm its position on this very question:\n\n Defendants affirm that they will not rely on any\n information they have withheld on grounds of\n privilege from Plaintiff in response to a discovery\n request in this case. Defendants are mindful of the\n Court’s December 20, 2012 ruling (Dkt. [No.] 399)\n that the Government may not affirmatively seek to\n prevail in this action based upon information that has\n been withheld on grounds of privilege, and have acted\n in a manner consistent with that ruling in both the\n assertion of privilege and summary judgment briefing.\n\n70 IBRAHIM V. DHS\n\nargument it had promised to forego. This is precisely the\ntype of “abusive litigation” disavowed in the EAJA, which\nis focused on “protecting the integrity of the judicial\nprocess.” Copeland, 603 F.2d at 984 (concluding that the\ngovernment was entitled to bad faith fees where the plaintiff\nbrought a frivolous suit under Title VII of the Civil Rights\nAct of 1964 because the purpose of a fee award under the\nbad faith exception includes “protecting the integrity of the\njudicial process”).\n\n The district court also clearly erred in concluding the\ngovernment’s privilege assertions were made in good faith\nby considering only the merits of the privilege arguments\nthemselves (“some were upheld, some were overruled”).\nThe district court disregarded the government’s stubborn\nrefusal to produce discovery even after the district court\nordered it produced. But “willful disobedience of a court\norder” supports a bad faith finding. Octane Fitness, LLC,\n134 S. Ct. at 1758 (citation omitted); see also Hutto v.\nFinney, 437 U.S. 678, 689 n.14 (1978) (noting that a court\ncan “award attorney’s fees against a party who shows bad\nfaith by delaying or disrupting the litigation or by hampering\nenforcement of a court order”). Here, the government\nrefused to produce evidence designated “sensitive security\ninformation” (SSI), even after Dr. Ibrahim’s attorneys\nobtained the requisite security clearance and the court\nordered the government to produce discovery. Contrary to\nits April 2014 bad faith finding, the district court itself, in a\nDecember 20, 2012 order, admonished the government for\nits “persistent and stubborn refusal to follow the statute” that\n\n IBRAHIM V. DHS 71\n\nrequired the government to produce this information in these\ncircumstances. 36\n\n The district court’s 2012 reprimand had little effect on\nthe government’s conduct. After this order, the government\ncontinued to drag its feet and refused to produce any\nprivileged information—which Dr. Ibrahim’s attorneys were\ncleared to review—because it wanted to renegotiate an\nalready-in-place protective order. The district court, noting\nits dissatisfaction with the government’s handling of this\nlitigation in 2013, emphasized that the government had\n“once again miss[ed] a deadline to produce materials in this\nlong-pending action.”\n\n The government also refused to comply with the district\ncourt’s order to produce Dr. Ibrahim’s current watchlist\nstatus until it was compelled to do so. Dr. Ibrahim should\nnot have been required to pursue a motion to compel to\nrequire the government to produce this information,\nespecially when the government’s justifications for refusing\nto produce it were baseless. The government first argued\nthat Dr. Ibrahim did not have standing to assert a right to\nlearn the status of her No Fly list placement—a meritless\nreassertion of a settled issue. The government alternatively\nargued that her historical watchlist status was irrelevant to\nthis case—a plainly frivolous contention given that Dr.\n\n\n\n 36\n Dr. Ibrahim also argues that the government acted in bad faith by\ngiving the district court secret evidence and secret case law. While the\ndistrict court ultimately held that the government was not justified in\nthese ex parte communications, it is not clear that such communications\nwere so clearly precluded by precedent that the ex parte communications\nwere outside the bounds of acceptable conduct.\n\n72 IBRAHIM V. DHS\n\nIbrahim’s watchlist status is at the heart of this dispute.\nThese actions, too, support a bad faith finding.\n\n On remand, when analyzing the government’s litigation\nconduct through a totality of the circumstances lens, the\ndistrict court must also consider other relevant conduct,\nincluding the government’s abuse of the discovery\nprocess; 37 interference with the public’s right of access to\ntrial by making at least ten motions to close the courtroom,\nsee Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,\n1135 (9th Cir. 2003); accord Globe Newspaper Co. v.\nSuperior Court, 457 U.S. 596, 606–07 (1982); 38 and misuse\nof a summary judgment hearing to discuss tangential issues\nunrelated to the merits of the summary judgment motion.\n\n Finally, the district court erred in failing to consider\nwhether the government’s position as a whole was in good\nfaith. Though the government may have had a legitimate\nbasis to defend this litigation initially, whether the\ngovernment’s defense of this litigation was ever in good\nfaith is a different question from whether it was always in\ngood faith. Once the government discovers that its litigation\nposition is baseless, it may not continue to defend it.\nMendenhall, 92 F.3d at 877. On remand, the district court\n\n\n 37\n For example, the government also made depositions exceedingly\ndifficult by lodging over 200 objections and instructions not to answer\nto questions.\n\n 38\n “[H]istorically both civil and criminal trials have been\npresumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.\n555, 580 n.17 (1980) (plurality opinion); see also id. at 596 (Brennan, J.,\nconcurring in judgment) (emphasizing value of open civil proceedings);\nid. at 599 (Stewart, J., concurring in judgment) (remarking that the First\nAmendment provides a right of access to civil and criminal trials).\n\n IBRAHIM V. DHS 73\n\nmust consider whether the government had a good faith basis\nto defend its No Fly list error as the litigation evolved.\n\n In sum, the district court’s ruling that the government did\nnot act in bad faith was in error because it was incomplete.\nThe district court focused primarily upon Agent Kelley’s\n“unknowing” placement of Dr. Ibrahim’s name on the No\nFly list, which it deemed “the original sin,” rather than\nconsidering the “totality” of the government’s conduct,\n“including conduct ‘prelitigation and during trial.’”\nRodriguez, 542 F.3d at 712 (emphasis removed) (citations\nomitted); see also Rawlings, 725 F.2d at 1196 (opining that\nwhen evaluating bad faith we must consider the “totality of\nthe circumstances”). And this conduct should have included\nboth an analysis of the government agencies’ and its legal\nrepresentatives’ conduct. Dr. Ibrahim should not have had\nto endure over a decade of contentious litigation, two trips to\nthe court of appeals, extensive discovery, over 800 docket\nentries amounting to many thousands of pages of record, and\na weeklong trial the government precluded her (and her\nU.S.-citizen daughter) from attending, only to come full\ncircle to the government’s concession that she never\nbelonged on the No Fly list at all—that she is not and never\nwas a terrorist or threat to airline passenger or civil aviation\nsecurity. It should not have taken a court order to require the\ngovernment to “cleans[e] and/or correct[] . . . the mistaken\n2004 derogatory designation” of Dr. Ibrahim, which had\nspread like an insidious virus through numerous government\nwatchlists.\n\n V.\n\n The district court’s piecemeal award of attorneys’ fees in\nthis case runs afoul of the Supreme Court’s admonition that\n“[a] request for attorney’s fees should not result in a second\nmajor litigation.” Hensley, 461 U.S. at 437. In this request\n\n74 IBRAHIM V. DHS\n\nfor attorneys’ fees alone, three courts, both a three-judge\npanel of our court and an en banc panel, fifteen judges, and\none special master have had to consider the merits of this\nclaim while the attorneys’ fees and costs continue to mount.\nThe district court and original panel’s substantive\ndetermination of issues are precisely the type of “second\nmajor litigation” that the Hensley Court directed us to avoid.\n\n That is not to say that all of the special master’s findings\nand recommended fee reductions accepted by the district\ncourt were incorrect. As the Supreme Court noted in\nHensley, consideration of the twelve factors laid out in\nJohnson v. Georgia Highway Express, Inc., 488 F.2d 714,\n717–19 (5th Cir. 1974), abrogated on different grounds by\nBlanchard v. Bergeron, 489 U.S. 87 (1989), 39 was entirely\nappropriate. 461 U.S. at 429–30. For example, the special\nmaster did not err in considering whether there was\nduplicative or block billing. However, when revisiting this\ncase, the fee reductions should not be so pervasive that they\ncompletely eliminate the reasonable fees to which Dr.\nIbrahim’s attorneys are entitled.\n\n When the district court recalculates these fees, the\ncalculation should acknowledge that Dr. Ibrahim and her\nlawyers, facing overwhelming odds, won a groundbreaking\n\n 39\n The Johnson factors are: (1) the time and labor required; (2) the\nnovelty and difficulty of the questions; (3) the skill requisite to perform\nthe legal service properly; (4) the preclusion of other employment;\n(5) the customary fee in the community for similar work; (6) the fixed or\ncontingent nature of the fee; (7) time limitations imposed by the client or\nthe circumstances; (8) the amount involved and the results obtained;\n(9) the experience, reputation, and ability of the attorneys; (10) the\n“undesirability” of the case; (11) the nature and length of the professional\nrelationship with the client; and (12) awards in similar cases. Johnson,\n488 F.2d at 717–19.\n\n IBRAHIM V. DHS 75\n\nvictory, and that they are entitled to the fees they’ve earned\nand the vast majority of fees they requested. Cf. Moreno v.\nCity of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)\n(“The district court’s inquiry must be limited to determining\nwhether the fees requested by this particular legal team are\njustified for the particular work performed and the results\nachieved in this particular case.”).\n\n We therefore REVERSE, VACATE the award of\nattorneys’ fees, and REMAND to allow the district court to\nmake a bad faith determination under the correct legal\nstandard in the first instance, and to re-determine the fee\naward in accordance with this opinion.40\n\n\n\n\n 40\n We do not reach each of the objections to the special master’s\nrecommendations, as the fee award is vacated, and many of the\nobjections may be mooted as a result of our opinion, which will require\na substantial redetermination of the fee award, as well as commensurate\ncosts.\n\n76 IBRAHIM V. DHS\n\n APPENDIX A\n\n Glossary of Acronyms\n\n APA Administrative Procedure Act\n CLASS Consular Lookout and Support System\n DHS Department of Homeland Security\n EAJA Equal Access to Justice Act\n FAA Federal Aviation Administration\n FBI Federal Bureau of Investigation\n HSPD-6 Homeland Security Presidential Directive 6\n IBIS Interagency Border Inspection System\n INA Immigration and Nationality Act\n KSTF Known and Suspected Terrorist File\n NCIC National Crime Information Center\n NCTC National Counterterrorism Center\n NTC National Targeting Center\n PIVF Passenger Identity Verification Form\n SFO San Francisco International Airport\n SSI Sensitive Security Information\n Tipoff Australia Counterterrorism Information\n TACTICS\n Control System\n TIDE Terrorist Identities Datamart Environment\n TRIP Travel Redress Inquiry Program\n TSA Transportation Security Administration\n TSC Terrorist Screening Center\n TSDB Terrorist Screening Database\n\n IBRAHIM V. DHS 77\n\nTUSCAN Tipoff United States-Canada\nVGTO Violent Gang and Terrorist Organization\nVGTOF Violent Gang and Terrorist Organization File\n\n78 IBRAHIM V. DHS\n\nCALLAHAN, Circuit Judge, joined by N.R. SMITH and"}, {"author": "NGUYEN, Circuit Judges, concurring", "type": "concurrence", "text": "NGUYEN, Circuit Judges, concurring in part and dissenting\nin part:\n\n I agree with the majority that Dr. Ibrahim is the\nprevailing party in this case and that the test for substantial\njustification is an inclusive one: whether the government’s\nposition as a whole has a reasonable basis in fact and law. I\nfurther agree that Dr. Ibrahim’s equal protection and First\nAmendment claims are sufficiently related to her other\nclaims such that the district court’s failure to reach those\nissues does not justify the district court’s curtailment of\nattorneys’ fees. But the majority exceeds our role as an\nappellate court by determining in the first instance that the\ngovernment’s position was not substantially justified.\nSupreme Court precedent requires that we allow the district\ncourt to make that determination on remand. See Pierce v.\nUnderwood, 487 U.S. 552, 560 (1988). I also dissent from\nthe majority’s setting aside of the district court’s finding that\nthe defendants did not proceed in bad faith. Applying the\napplicable standard of review, see Rodriguez v. United\nStates, 542 F.3d 704, 709 (9th Cir. 2008), Dr. Ibrahim has\nnot shown that the district court committed clear error.\nAccordingly, I would affirm the district court’s limitation of\nDr. Ibrahim’s attorneys’ fees to the statutory rate of $125 per\nhour set by Equal Access to Justice Act (EAJA), 28 U.S.C.\n§ 2412.\n\n I\n\n Although I agree that substantial justification requires a\nsingle-finding, the majority errs in proceeding to make this\nfactual determination. In Pierce, the Supreme Court held\nthat the language in 28 U.S.C. § 2412(d)(1)(A)—that\nattorneys’ fees shall be awarded “unless the court finds that\nthe position of the United States was substantially\n\n IBRAHIM V. DHS 79\n\njustified”—contemplates that “the determination is for the\ndistrict court to make and suggests some deference to the\ndistrict court.” 487 U.S. at 559. The Court explained why\nthe district court is in a better position than an appellate court\nto make this determination:\n\n To begin with, some of the elements that bear\n upon whether the Government’s position\n “was substantially justified” may be known\n only to the district court. Not infrequently,\n the question will turn upon not merely what\n was the law, but what was the evidence\n regarding the facts. By reason of settlement\n conferences and other pretrial activities, the\n district court may have insights not conveyed\n by the record, into such matters as whether\n particular evidence was worthy of being\n relied upon, or whether critical facts could\n easily have been verified by the Government.\n Moreover, even where the district judge’s full\n knowledge of the factual setting can be\n acquired by the appellate court, that\n acquisition will often come at unusual\n expense, requiring the court to undertake the\n unaccustomed task of reviewing the entire\n record, not just to determine whether there\n existed the usual minimum support for the\n merits determination made by the factfinder\n below, but to determine whether urging of the\n opposite merits determination was\n substantially justified.\n\nId. at 560 (emphasis in original). The EAJA is materially\nindistinguishable from the statute at issue in Pierce, and our\ncase presents just the type of situation alluded to by the\n\n80 IBRAHIM V. DHS\n\nSupreme Court. The district court has managed this\nlitigation for twelve years. It is uniquely positioned to\ndetermine based on the totality of the circumstances whether\nthe government’s position was substantially justified.\n\n Despite its ultimate factual conclusion that “neither the\nagencies’ conduct nor the government’s litigation position\nwas substantially justified” (Maj. Opn. at 46), the majority’s\nown description of the litigation shows why the district court\nshould decide the issue in the first instance. The majority\n“ascribe[s] no nefarious motivations to the government”\n(Maj. Opn. at 43 n.19) and declines to find that “the\ngovernment’s defense of this litigation was unreasonable at\nall points of the litigation.” Maj. Opn. at 45 n.20. Later in\nits opinion, the majority notes that “[t]hough the government\nmay have had a legitimate basis to defend this litigation\ninitially, whether the government’s defense of this litigation\nwas ever in good faith is a different question from whether\nit was always in good faith.” Maj. Opn. at 72. The\nmajority’s recognition of the complexities of this litigation\nillustrates precisely why the issue should be decided in the\nfirst instance by the district court.\n\n As the Supreme Court directed in Pierce, our iteration of\nthe single-finding requirement compels a remand to the\ndistrict court to make that finding in the first place. See\nAdarand Constructors, Inc. v. Pena, 515 U.S. 200, 237\n(1995) (“Because our decision today alters the playing field\nin some important respects, we think it best to remand the\ncase to the lower courts for further consideration in light of\nthe principles we have announced.”). The government\nwould then have the opportunity to explain its reasons for its\npositions and offer evidence in support of its positions, and,\nof course, Dr. Ibrahim would be entitled to respond to the\ngovernment’s arguments and evidence. See Fisher v. Univ.\n\n IBRAHIM V. DHS 81\n\nof Texas at Austin, 570 U.S. 297, 314 (2013) (noting that\n“fairness to the litigants and the courts that heard the case\nrequires that it be remanded so that the admissions process\ncan be considered and judged under a correct analysis”).\nThe district court would then make its independent\ndetermination, which we could then review should either\nside take exception. We are not a fact-finding court, and our\nfeelings concerning the reasonableness of the government’s\noverall litigation strategy do not justify our expropriation of\nthe district court’s responsibility to make such a\ndetermination in the first instance. 1\n\n II\n\n Although the majority correctly notes that a finding of\nbad faith permits a market-rate recovery of attorneys’ fees,\nin reversing the district court’s finding of no bad faith, the\nmajority fails to apply, let alone acknowledge, the proper\nstandard of review. “We review a district court’s finding\nregarding a party’s bad faith for clear error.” Rodriguez,\n542 F.3d at 709. “A finding is clearly erroneous if it is\n(1) illogical, (2) implausible, or (3) without support in\ninferences that may be drawn from the facts in the record.”\nCrittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015)\n(internal quotation marks omitted) (quoting United States v.\nHinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).\nThe Supreme Court has cautioned that pursuant to Federal\nRule of Civil Procedure 52, “[f]indings of fact shall not be\nset aside unless clearly erroneous, and due regard shall be\n 1\n See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573\n(1985) (“The reviewing court oversteps the bounds of its duty under\nRule 52(a) if it undertakes to duplicate the role of the lower court.”); see\nalso S.E.C. v. Rogers, 790 F.2d 1450, 1458 (9th Cir. 1986) (noting that\n“as a court of limited review” the Ninth Circuit “must abide by the\nclearly erroneous rule when reviewing a district court’s findings.”).\n\n82 IBRAHIM V. DHS\n\ngiven to the opportunity of the trial court to judge the\ncredibility of the witnesses.” Anderson, 470 U.S. at 573.\nThe Supreme Court has counseled:\n\n If the district court’s account of the evidence\n is plausible in light of the record viewed in its\n entirety, the court of appeals may not reverse\n it even though convinced that had it been\n sitting as the trier of fact, it would have\n weighed the evidence differently. Where\n there are two permissible views of the\n evidence, the factfinder’s choice between\n them cannot be clearly erroneous.\n\nId. at 573–74.\n\n The majority turns the standard of review on its head by\nanalyzing and emphasizing the pieces of evidence that it\nconcludes “support a bad faith finding.” Maj. Opn. at 71–\n72; see generally Maj. Opn. at 65–75. But to reverse for\nclear error, we should consider whether the district court’s\nfinding was plausible and not simply identify evidence that\narguably supports a conclusion contrary to the district\ncourt’s determination.\n\n None of the arguments proffered by Dr. Ibrahim support\na finding of clear error. She first argues that there is bad faith\nbecause she was wrongly placed on the watchlist, the\ngovernment refused to acknowledge this fact, and the\ngovernment continued to oppose her even after it knew its\nconduct was wrong. But this argument fails to acknowledge\nthe evolution of the law—which has been prompted, at least\nin part, by this litigation. We now know that Dr. Ibrahim\nwas placed on the watchlist by the mistake of a single federal\nemployee. Moreover, at the time Dr. Ibrahim was placed on\nthe government’s watchlist, there was no uniform standard.\n\n IBRAHIM V. DHS 83\n\nAlso, as the three-judge panel observed, “[p]rior to this suit\nno court had held a foreign national such as Ibrahim\npossessed any right to challenge their placement—mistaken\nor not—on the government’s terrorism watchlists.” Ibrahim\nv. U.S. Dep’t. of Homeland Sec., 835 F.3d 1048, 1058 (9th\nCir. 2016) (Ibrahim III), reh’g en banc granted, 878 F.3d\n703 (9th Cir. 2017). Thus, it was not necessarily bad faith\nfor the government to assert that Dr. Ibrahim did not possess\nsuch a right. Id. Furthermore, it appears that the government\nremoved Dr. Ibrahim from the No-Fly List more than a year\nprior to Dr. Ibrahim filing this action in 2016. Id.\n\n Second, Dr. Ibrahim asserts that the government’s\nraising of its standing defense after Ibrahim v. Dep’t. of\nHomeland Security, 669 F.3d 983 (9th Cir. 2012) (Ibrahim\nII), demonstrates bad faith. However, the three-judge panel\nnoted:\n\n Ibrahim fails to point to any evidence\n indicating the government reraised standing\n as a defense at summary judgment and trial\n with vexatious purpose. What’s more, the\n government correctly points out that there\n was at minimum a colorable argument that\n the different procedural phases of the case\n rendered their subsequent standing motions\n nonfrivolous.\n\nIbrahim III, 835 F.3d at 1059. Although we held that Dr.\nIbrahim had standing in Ibrahim II, 669 F.3d at 992–94, this\ndid not preclude the government from seeking to preserve\nthe issue 2 or from challenging her underlying constitutional\n\n 2\n The majority asserts that the government should have sought\nreview of Ibrahim II by the Supreme Court, but as Ibrahim II reversed\n\n84 IBRAHIM V. DHS\n\nclaims. See Ibrahim II, 669 F.3d at 997 (noting that we\nexpressed “no opinion on the validity of the underlying\nconstitutional claims”).\n\n Third, Dr. Ibrahim’s claim that the government’s\nprivilege assertions were made in bad faith is not compelling\nas the government was successful on many of its privilege\nassertions. See Ibrahim III, 835 F.3d at 1059.\n\n Fourth, the three-judge panel noted:\n\n Nor is there any evidence in the record\n demonstrating the government prevented\n Ibrahim from entering the United States to\n offer testimony in this suit, and with respect\n to her daughter, Ibrahim fails to explain why\n there was any error in the district court’s\n determination that the government’s initial\n refusal to allow her into the country was\n anything but a mistake, and a quickly\n corrected one at that.\n\nId. at 1060. The majority, however, asserts that it was\nunreasonable for the district court to conclude that “there\nwas no evidence that the government” obstructed Dr.\nIbrahim’s daughter from appearing at trial. Maj. Opn. at 66.\nBut the question is not whether there is evidence that the\ngovernment interfered with the daughter’s travel to the\nUnited States, but whether it did so in bad faith. The\nmajority notes that as a citizen the daughter “was not subject\n\n\n\n\nand remanded for further proceedings, the government could have\ndecided not to press the issue at that time.\n\n IBRAHIM V. DHS 85\n\nto the INA,” (Maj. Opn. at 67), but the No-Fly List and other\ntravel restrictions are applicable to citizens as well as others.\n\n Finally, I agree with the three-judge panel that:\n\n Ibrahim’s argument that the district court\n erred by making piecemeal bad faith\n determinations is unpersuasive. Her sole\n authority on point is our decision in\n McQuiston v. Marsh, 707 F.2d 1082, 1086\n (9th Cir. 1983), superseded by statute as\n recognized by Melkonyan v. Sullivan,\n 501 U.S. 89, 96, 111 S. Ct. 2157, 115 L. Ed. 2d\n 78 (1991), where we made the unremarkable\n observation that “[b]ad faith may be found\n either in the action that led to the lawsuit or\n in the conduct of the litigation.” She fails,\n however, to point to any case where we have\n elevated that observation to edict. Rather, we\n have consistently required fee awards based\n on bad faith to be “traceable” to the conduct\n in question. See, e.g., Rodriguez, 542 F.3d at\n 713. It was therefore proper for the district\n court to consider each claimed instance of\n bad faith in order to determine whether the\n associated fees should be subject to a market-\n rate increase.\n\nIbrahim III, 835 F.3d at 1060.\n\n Of course, we as an en banc panel are free to disagree\nwith the conclusions drawn by the three-judge panel, but\nwhere, as here, the standard of review is clear error, the fact\nthat several appellate judges agreed with the district court is\nsome evidence that the district court’s decision was not clear\nerror.\n\n86 IBRAHIM V. DHS\n\n Although the majority remanded the issue of bad faith to\nthe district court for its independent re-assessment of the\nissue, as an appellate court we should allow the district\ncourt’s determination of no bad faith to stand unless\nappellant shows clear error. Anderson, 470 U.S. at 572;\nRodriguez, 542 F.3d at 709. Because Dr. Ibrahim has not\nshown clear error, the district court’s finding of no bad faith\nshould be affirmed.\n\n III\n\n The majority, having determined that the test for\nsubstantial justification under the EAJA is an inclusive\none—whether the government’s position as a whole has a\nreasonable basis in fact and law—gets carried away and\narrogates to itself the determination in the first instance that\nthe government’s position was not reasonable. However, the\nSupreme Court has clearly directed that such a determination\nshould be made by the district court, Pierce, 487 U.S. at 560,\nwhere the parties will have an opportunity to present\nargument and evidence applying our substantial justification\ntest to the particularities of this litigation. See Fisher,\n570 U.S. at 314. And while the majority, by remanding the\nbad faith issue to the district court, resisted the temptation to\ndecide itself whether the government has proceeded in bad\nfaith, it should have recognized that there was no need for a\nremand because Dr. Ibrahim failed to show clear error in the\ndistrict court’s holding that the government did not proceed\nin bad faith. See Rodriguez, 542 F.3d at 709. Accordingly,\nI agree with the majority’s test for substantial justification,\nbut I dissent from its factual determination in the first\ninstance that the government’s litigation position was not\njustified and from its disturbance of the district court’s\nfinding that the government did not proceed in bad faith.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355555/", "author_raw": "NGUYEN, Circuit Judges, concurring"}]}	SIDNEY R THOMAS	M MARGARET MCKEOWN	KIM MCLANE WARDLAW	2	WILLIAM A FLETCHER; MARSHA S BERZON; CONSUELO M CALLAHAN; MILAN D SMITH JR; N RANDY SMITH; MORGAN CHRISTEN; JACQUELINE H NGUYEN; PAUL J WATFORD	{}	3	0	2	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578302/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Rahinah Ibrahim v. US Dept. of Homeland Security\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n DR. RAHINAH IBRAHIM, an Nos. 14-16161\n individual, 14-17272\n Plaintiff-Appellant,\n D.C. No.\n v. 3:06-cv-545-\n WHA\n U.S. DEPARTMENT OF HOMELAND\n SECURITY; TERRORIST SCREENING\n CENTER; FEDERAL BUREAU OF OPINION\n INVESTIGATION; CHRISTOPHER A.\n WRAY, * in his official capacity as\n Director of the Federal Bureau of\n Investigation; KIRSTJEN NIELSEN, in\n her official capacity as Secretary of\n the Department of Homeland\n Security; MATTHEW G. WHITAKER,\n in his official capacity as Acting\n Attorney General; CHARLES H.\n KABLE IV, in his official capacity as\n Director of the Terrorist Screening\n Center; JAY S. TABB, JR., in his\n official capacity as Executive\n Assistant Director of the FBI’s\n National Security Branch; NATIONAL\n COUNTERTERRORISM CENTER;\n\n \n Current cabinet members and other federal officials have been\nsubstituted for their predecessors pursuant to Rule 43(c)(2) of the Federal\nRules of Appellate Procedure.\n\n2 IBRAHIM V. DHS\n\n RUSSELL “RUSS” TRAVERS, in his\n official capacity as Director of the\n National Counterterrorism Center;\n DEPARTMENT OF STATE; MICHAEL R.\n POMPEO, in his official capacity as\n Secretary of State; UNITED STATES\n OF AMERICA,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted En Banc March 20, 2018\n San Francisco, California\n\n Filed January 2, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and M. Margaret\n McKeown, Kim McLane Wardlaw, William A. Fletcher,\nMarsha S. Berzon, Consuelo M. Callahan, Milan D. Smith,\n Jr., N. Randy Smith, Morgan Christen, Jacqueline H.\n Nguyen, and Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Wardlaw;\nPartial Concurrence and Partial Dissent by Judge Callahan\n\n IBRAHIM V. DHS 3\n\n SUMMARY \n\n\n Equal Access to Justice Act / Attorneys’ Fees\n\n The en banc court reversed the district court, vacated the\naward of attorneys’ fees under the Equal Access to Justice\nAct (“EAJA”), and remanded with instructions to recalculate\nthe fees for the civil rights law firm that represented\nDr. Rahinah Ibrahim in her successful challenge to her\ninclusion on the Transportation Security Administration’s\n“No Fly” list.\n\n The en banc court held that when a district court awards\ncomplete relief on one claim, rendering it unnecessary to\nreach alternative claims, the alternative claims cannot be\ndeemed unsuccessful for the purpose of calculating a fee\naward. The en banc court rejected the post hoc “mutual\nexclusivity” approach to determining whether\n“unsuccessful” claims were related to successful claims and\nreaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983),\nsets forth the correct standard of “relatedness” for claims\nunder EAJA. The en banc court reaffirmed that in evaluating\nwhether the government’s position is substantially justified,\nthe court looks at whether the government’s and the\nunderlying agency’s positions were justified as a whole and\nnot at each stage of the litigation.\n\n Applying these standards, the en banc court held that the\nvarious stages at issue here were all part of one litigation in\nfederal court where the case was never returned to an agency\nfor further proceedings, and, therefore, Corbin v. Apfel,\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n4 IBRAHIM V. DHS\n\n149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly\ncomplex cases, a court may appropriately determine whether\nthe government was substantially justified at each stage of\nthe litigation and make a fee award apportioned to those\nseparate determinations), did not apply. The en banc court\nheld that the district court erred in its piecemeal approach to\nsubstantial justification, and concluded that neither the\nagency’s conduct nor the government’s litigation position\nwas substantially justified.\n\n The en banc court held that the district court erred in\ndetermining that Dr. Ibrahim was entitled to reasonable fees\nand expenses with respect to only her procedural due process\nclaim and her related substantive due process and\nAdministrative Procedure Act claims, and in disallowing\ncounsel’s reasonable fees and expenses on the unreached,\nand “unrelated,” First Amendment and equal protection\nclaims. The en banc court held that the district court clearly\nerred in holding that Dr. Ibrahim’s unreached claims were\nunsuccessful. The en banc court held that all of\nDr. Ibrahim’s claim arose from a “common course of\nconduct” and were therefore related under Hensley. The en\nbanc court further held that the district court erred in finding\nthat Dr. Ibrahim had only “limited” success, and concluded\nthat Dr. Ibrahim satisfied Hensley’s second prong that the\nplaintiff achieve “a level of success that makes the hours\nreasonably expended a satisfactory basis for making a fee\naward.” Hensley, 461 U.S. at 434. The en banc court found\nthat Dr. Ibrahim achieved excellent results and was entitled\nto reasonable fees consistent with that outcome.\n\n Although generally attorneys’ fees are capped under\nEAJA at $125 per hour, where the government acts in bad\nfaith, a court may assess fees and expenses to the extent a\nparty would be liable under the common law. The en banc\n\n IBRAHIM V. DHS 5\n\ncourt concluded that the district court’s ruling that the\ngovernment did not act in bad faith was in error because it\nwas incomplete where the district court did not consider the\n“totality” of the government’s conduct, including conduct\nprelitigation and during trial.\n\n The en banc court remanded to allow the district court to\nmake a bad faith determination under the correct legal\nstandard in the first instance, and to re-determine the fee\naward.\n\n Judge Callahan, joined by Judges N.R. Smith and\n[END_CASE]", "role": "user" } ]
4,578,372		Dnc v. Michele Reagan	2019-01-02	18-15845	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 2 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nTHE DEMOCRATIC NATIONAL No. 18-15845\nCOMMITTEE; DSCC, AKA Democratic\nSenatorial Campaign Committee; THE D.C. No. 2:16-cv-01065-DLR\nARIZONA DEMOCRATIC PARTY, District of Arizona,\n Phoenix\n Plaintiffs-Appellants,\n ORDER\n v.\n\nMICHELE REAGAN, in her official\ncapacity as Secretary of State of Arizona;\nMARK BRNOVICH, Attorney General, in\nhis official capacity as Arizona Attorney\nGeneral,\n\n Defendants-Appellees,\n\nTHE ARIZONA REPUBLICAN PARTY;\nBILL GATES, Councilman; SUZANNE\nKLAPP, Councilwoman; DEBBIE LESKO,\nSen.; TONY RIVERO, Rep.,\n\n Intervenor-Defendants-\n Appellees.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\fand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n\n Judge McKeown did not participate in the deliberations or vote in this case.\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355625/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578372/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Dnc v. Michele Reagan\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 2 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nTHE DEMOCRATIC NATIONAL No. 18-15845\nCOMMITTEE; DSCC, AKA Democratic\nSenatorial Campaign Committee; THE D.C. No. 2:16-cv-01065-DLR\nARIZONA DEMOCRATIC PARTY, District of Arizona,\n Phoenix\n Plaintiffs-Appellants,\n ORDER\n v.\n\nMICHELE REAGAN, in her official\ncapacity as Secretary of State of Arizona;\nMARK BRNOVICH, Attorney General, in\nhis official capacity as Arizona Attorney\nGeneral,\n\n Defendants-Appellees,\n\nTHE ARIZONA REPUBLICAN PARTY;\nBILL GATES, Councilman; SUZANNE\nKLAPP, Councilwoman; DEBBIE LESKO,\nSen.; TONY RIVERO, Rep.,\n\n Intervenor-Defendants-\n Appellees.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\fand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n\n Judge McKeown did not participate in the deliberations or vote in this case.\n\n\n\n\n 2\n[END_CASE]", "role": "user" } ]
4,579,667		Dnc v. Michele Reagan	2019-01-02	18-15845	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nTHE DEMOCRATIC NATIONAL No. 18-15845\nCOMMITTEE; DSCC, AKA\nDemocratic Senatorial Campaign D.C. No.\nCommittee; THE ARIZONA 2:16-cv-01065-\nDEMOCRATIC PARTY, DLR\n Plaintiffs-Appellants,\n\n v. ORDER\n\nMICHELE REAGAN, in her official\ncapacity as Secretary of State of\nArizona; MARK BRNOVICH, Attorney\nGeneral, in his official capacity as\nArizona Attorney General,\n Defendants-Appellees,\n\nTHE ARIZONA REPUBLICAN PARTY;\nBILL GATES, Councilman; SUZANNE\nKLAPP, Councilwoman; DEBBIE\nLESKO, Sen.; TONY RIVERO, Rep.,\n Intervenor-Defendants-Appellees.\n\n\n\n Filed January 2, 2019\n\f2 DNC V. REAGAN\n\n ORDER\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges,\nit is ordered that this case be reheard en banc pursuant to\nFederal Rule of Appellate Procedure 35(a) and Circuit\nRule 35-3. The three-judge panel disposition in this case\nshall not be cited as precedent by or to any court of the Ninth\nCircuit.\n\n Judge McKeown did not participate in the deliberations\nor vote in this case.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356920/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579667/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Dnc v. Michele Reagan\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nTHE DEMOCRATIC NATIONAL No. 18-15845\nCOMMITTEE; DSCC, AKA\nDemocratic Senatorial Campaign D.C. No.\nCommittee; THE ARIZONA 2:16-cv-01065-\nDEMOCRATIC PARTY, DLR\n Plaintiffs-Appellants,\n\n v. ORDER\n\nMICHELE REAGAN, in her official\ncapacity as Secretary of State of\nArizona; MARK BRNOVICH, Attorney\nGeneral, in his official capacity as\nArizona Attorney General,\n Defendants-Appellees,\n\nTHE ARIZONA REPUBLICAN PARTY;\nBILL GATES, Councilman; SUZANNE\nKLAPP, Councilwoman; DEBBIE\nLESKO, Sen.; TONY RIVERO, Rep.,\n Intervenor-Defendants-Appellees.\n\n\n\n Filed January 2, 2019\n\f2 DNC V. REAGAN\n\n ORDER\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges,\nit is ordered that this case be reheard en banc pursuant to\nFederal Rule of Appellate Procedure 35(a) and Circuit\nRule 35-3. The three-judge panel disposition in this case\nshall not be cited as precedent by or to any court of the Ninth\nCircuit.\n\n Judge McKeown did not participate in the deliberations\nor vote in this case.\n[END_CASE]", "role": "user" } ]
4,579,666		United States v. Victor Torres	2019-01-08	15-10492	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas,* Chief Judge, N. Randy Smith, Circuit Judge, and Sharon L. Gleason,** District Judge.", "parties": "", "opinions": [{"author": "N.R. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n UNITED STATES OF AMERICA, No. 15-10492\n Plaintiff-Appellee,\n D.C. No.\n v. 5:14-cr-00255-EJD-1\n\n VICTOR MANUEL TORRES,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Edward J. Davila, District Judge, Presiding\n\n Argued and Submitted December 12, 2016\n San Francisco, California\n\n Filed January 8, 2019\n\nBefore: Sidney R. Thomas,* Chief Judge, N. Randy Smith,\n Circuit Judge, and Sharon L. Gleason,** District Judge.\n\n Opinion by Judge N.R. Smith\n\n\n \n Following the retirement of Judge Kozinski, Chief Judge Sidney R.\nThomas was randomly drawn to replace him. Ninth Cir. Gen. Order 3.2.h.\nChief Judge Thomas has read the briefs, reviewed the record, and watched\na video recording of oral argument.\n \n The Honorable Sharon L. Gleason, United States District Judge for\nthe District of Alaska, sitting by designation.\n\f2 UNITED STATES V. TORRES\n\n SUMMARY\n\n\n Criminal Law\n\n The panel affirmed a conviction for possessing a firearm\nwhile being an alien unlawfully in the United States in\nviolation of 18 U.S.C. § 922(g)(5)(A).\n\n Assuming without deciding that unlawful aliens in this\ncountry hold some degree of rights under the Second\nAmendment, the panel held that § 922(g)(5) is constitutional\nunder intermediate scrutiny.\n\n\n COUNSEL\n\nAdam G. Gasner (argued), Law Office of Adam G. Gasner,\nSan Francisco, California, for Defendant-Appellant.\n\nWilliam James Gullotta (argued), Special Assistant United\nStates Attorney; Barbara J. Valliere, Chief, Appellate\nDivision; United States Attorney’s Office, Oakland,\nCalifornia; for Plaintiff-Appellee.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. TORRES 3\n\n OPINION\n\nN.R. SMITH, Circuit Judge:\n\n Assuming that unlawful aliens in this country hold some\ndegree of rights under the Second Amendment, a statute\nprohibiting the possession of firearms by an alien unlawfully\npresent in the United States withstands constitutional scrutiny\nand is a valid exercise of Congress’s authority.\n\n I. BACKGROUND\n\n Defendant Victor Manuel Torres appeals his conviction\nfor possessing a firearm while “being an alien . . . illegally or\nunlawfully in the United States,” in violation of 18 U.S.C.\n§ 922(g)(5)(A).1 Torres was born in Mexico in 1985.\nApproximately four years later, he, his younger sister, and his\nmother moved to San Jose, California, to join Torres’s father,\nwho had entered the United States a year earlier. Nothing in\nthe record suggests that either of Torres’s parents ever had an\nimmigration status through which Torres could qualify for\nlegal status in the United States. Torres was enrolled in the\nschool system in San Jose from 1991 until he was expelled in\n2000. This expulsion resulted from Torres’s affiliation with\nthe Sur Santos Pride gang, which he joined at age fourteen.\nBecause of his gang involvement and attendant trouble at\nschool, Torres’s parents sent him back to live in Mexico in\n\n\n 1\n The discourse relevant to our discussion uses a variety of terms,\nsuch as “unlawful alien,” “illegal alien,” and “undocumented immigrant”\n(among several others) to refer to a person who is not a citizen of the\nUnited States and whose presence in the United States is not lawful.\nThroughout this opinion, we use the term “unlawful alien” to refer to a\nperson with this immigration status.\n\f4 UNITED STATES V. TORRES\n\n2002, when he was sixteen years old. After he reached\nadulthood, Torres attempted to unlawfully enter the United\nStates three times in June 2005. During each of his first two\nattempts, Torres was apprehended and permitted to\nvoluntarily return to Mexico. However, he successfully\nentered the United States unlawfully on the third attempt.\nUpon this reentry, Torres joined his family in San Jose and\nbegan working with his father in landscaping. In 2012, Torres\nmarried a United States citizen in San Jose. However, Torres\nnever applied for legal status.\n\n In March 2014, a citizen reported to the Los Gatos Police\nDepartment that there was a suspicious pickup truck in a\nnearby parking lot and that its driver might be attempting to\nsell a stolen bicycle. When officers arrived, the driver’s side\ndoor of the suspicious pickup was open. The officers found\nTorres working on something on the bed of the vehicle.\nThrough the open driver’s side door, officers saw a backpack\nand what appeared to be counterfeit license plates. The bed of\nthe pickup contained “a newer looking Trek road bike.”\nTorres told the officers that he owned the bicycle and that he\nhad received it as a gift in December 2013. However, by\nreporting the bicycle’s serial number to dispatch, officers\nconfirmed that it had been reported stolen two days earlier.\nWhen later confronted with this information, Torres admitted\nhe knew the bicycle was stolen. Officers requested that Torres\nprovide identification. Torres responded that it was in his\nvehicle. When Torres began to reach into the pickup to\nallegedly retrieve his identification, the officers stopped him\nout of concern for safety. An officer then looked into the\nvehicle and did not see any identification, but the officer\nasked if he could look inside Torres’s backpack. Torres\nconsented. Inside the backpack, the officer found a loaded .22\n\f UNITED STATES V. TORRES 5\n\ncaliber revolver, bolt cutters, and what appeared to be two\nhomemade silencers for the firearm.\n\n Upon this discovery, officers placed Torres under arrest.\nIn addition to the contents of Torres’s backpack, the\nsubsequent search of his vehicle revealed a small amount of\nmethamphetamine and a glass pipe. Officers transported\nTorres to a holding facility where they explained his Miranda\nrights to him before conducting an interview. In response to\nquestions about two of his tattoos that indicated a gang\naffiliation, Torres admitted to being an active member of Sur\nSantos Pride. According to Torres, the stolen bicycle and the\nbackpack containing the firearm had been placed in his\nvehicle by a friend (a fellow gang member), whose identity\nTorres refused to reveal.\n\n Subsequently, Torres was federally indicted in the\nNorthern District of California for one count of being an\nunlawful alien in possession of a firearm, in violation of\n18 U.S.C. § 922(g)(5)(A).2 Torres moved to dismiss the\nindictment, arguing that Second Amendment protections\napply to unlawful aliens and that § 922(g)(5) violates the\nSecond Amendment. The district court denied the motion,\nand the case proceeded to trial, resulting in Torres’s\nconviction. The district court imposed a sentence of twenty-\nseven months of incarceration followed by three years of\nsupervised release.\n\n On appeal, Torres admits that he is an alien unlawfully\npresent in the United States and that he possessed the firearm\nfound in his vehicle. However, he contests his conviction by\n\n 2\n Torres was also charged with several offenses in California state\ncourt, which are not at issue in this case.\n\f6 UNITED STATES V. TORRES\n\nchallenging on constitutional grounds the federal statute\nunder which he was convicted.\n\n II. STANDARD OF REVIEW\n\n We consider challenges to the constitutionality of a\nstatute de novo. United States v. Garcia, 768 F.3d 822, 827\n(9th Cir. 2014).\n\n III. DISCUSSION\n\n The Second Amendment to the United States Constitution\nguarantees that “the right of the people to keep and bear\nArms, shall not be infringed.” U.S. Const. amend. II. We\nmust answer, as an issue of first impression in our circuit,\nwhether this right is violated by a federal criminal statute\nprohibiting the possession of a firearm by an alien unlawfully\nin this country. The Second Amendment’s application to\nunlawful aliens has been widely debated among courts and\nscholars in recent years, with analytical divisions even among\nthose agreeing in result. We proceed to address this issue,\nfirst, by outlining the general framework to analyze\nchallenges under the Second Amendment. We then review\nthe approach of other circuits to Second Amendment\nchallenges to the specific statute at issue. Finally turning to\nthe parties’ arguments, we assume (without deciding) that the\nSecond Amendment extends to unlawful aliens, and we\nconclude that § 922(g)(5) is constitutional under intermediate\nscrutiny.\n\n Central to the rights guaranteed by the Second\nAmendment is “the inherent right of self-defense.” District of\nColumbia v. Heller, 554 U.S. 570, 628 (2008). However,\nwhile the Second Amendment “guarantee[s] the individual\n\f UNITED STATES V. TORRES 7\n\nright to possess and carry weapons in case of confrontation,”\nthe right “is not unlimited.” Id. at 592, 626. Congress may\nplace certain limits on where the right is exercised, how the\nright is exercised, and who may exercise the right. See id. at\n626–27; United States v. Carpio-Leon, 701 F.3d 974, 977 (4th\nCir. 2012) (“[T]he Second Amendment does not guarantee\nthe right to possess for every purpose, to possess every type\nof weapon, to possess at every place, or to possess by every\nperson.”); United States v. Huitron-Guizar, 678 F.3d 1164,\n1166 (10th Cir. 2012) (“The right to bear arms, however\nvenerable, is qualified by what one might call the ‘who,’\n‘what,’ ‘where,’ ‘when,’ and ‘why.’”). In fact, Congress has\ndetermined that certain groups should be prohibited\naltogether from possessing firearms. See 18 U.S.C. § 922(g).\nThis case concerns such a limitation. Under § 922(g)(5), it is\nunlawful for an alien “illegally or unlawfully in the United\nStates . . . to . . . possess in or affecting commerce, any\nfirearm.” Torres challenges this prohibition.3 According to\nTorres, § 922(g)(5) violates the Second Amendment, because\nit completely destroys (rather than limits) Second\nAmendment protections as to an entire class of people. See\nHeller, 554 U.S. at 628–29.\n\n In United States v. Chovan, we adopted a two-step inquiry\nto analyze claims that a law violates the Second Amendment.\n\n\n 3\n Torres claims to make facial and as-applied challenges to this\nstatute. However, we agree with the government that Torres fails to\nexplain his theory of how § 922(g)(5) is unconstitutional as applied to\nhim. Therefore, we consider only the facial challenge. See Entm’t\nResearch Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217\n(9th Cir. 1997) (“We review only issues which are argued specifically and\ndistinctly in a party’s opening brief. We will not manufacture arguments\nfor an appellant, and a bare assertion does not preserve a claim . . . .”\n(citation omitted)).\n\f8 UNITED STATES V. TORRES\n\n735 F.3d 1127, 1136 (9th Cir. 2013). This test “(1) asks\nwhether the challenged law burdens conduct protected by the\nSecond Amendment and (2) if so, directs courts to apply an\nappropriate level of scrutiny.” Id. Accordingly, we turn to the\nfirst question.\n\nA. Does § 922(g)(5) burden conduct protected by the\n Second Amendment?\n\n Under the first Chovan step, we cannot “apply the Second\nAmendment to protect a right that does not exist under the\nAmendment.” Peruta v. Cty. of San Diego, 824 F.3d 919, 942\n(9th Cir. 2016) (en banc), cert. denied sub nom. Peruta v.\nCalifornia, 137 S. Ct. 1995 (2017). Therefore, the first step\nof our analysis requires us to explore the amendment’s reach\n“based on a ‘historical understanding of the scope of the\n[Second Amendment] right.’” Jackson v. City & Cty. of San\nFrancisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller,\n554 U.S. at 625). A law does not burden Second Amendment\nrights, if it either falls within “one of the ‘presumptively\nlawful regulatory measures’ identified in Heller” or regulates\nconduct that historically has fallen outside the scope of the\nSecond Amendment. Id.\n\n The non-exhaustive examples of presumptively lawful\nregulations include “longstanding prohibitions on the\npossession of firearms by felons and the mentally ill, or laws\nforbidding the carrying of firearms in sensitive places such as\nschools and government buildings, or laws imposing\nconditions and qualifications on the commercial sale of\narms.” Heller, 554 U.S. at 626–27 & n.26; see also United\nStates v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).\n“These measures comport with the Second Amendment\nbecause they affect individuals or conduct unprotected by the\n\f UNITED STATES V. TORRES 9\n\nright to keep and bear arms.” Binderup v. Attorney Gen. U.S.,\n836 F.3d 336, 343 (3d Cir. 2016) (en banc), cert. denied sub\nnom. Sessions v. Binderup, 137 S. Ct. 2323 (2017), and cert.\ndenied sub nom. Binderup v. Sessions, 137 S. Ct. 2323\n(2017). However, the government does not argue that\n§ 922(g)(5) is a presumptively lawful regulation, so that\nquestion is not before us. Therefore, we focus our inquiry on\nwhether possession of firearms by unlawful aliens falls within\nthe “historical understanding of the scope of the [Second\nAmendment] right.” Heller, 554 U.S. at 625; see also id. at\n626–28 (outlining some of the historical limits on the scope\nof the Second Amendment right).\n\n In this case, the question of whether possession of\nfirearms by unlawful aliens has historically fallen outside the\nSecond Amendment requires an examination of whether\nunlawful aliens are included within the term “the people.”\nThe text of the Second Amendment plainly states that the\nright “to keep and bear Arms” is reserved only to “the\npeople.” Far from plain, however, is the scope of those who\nfall within “the people.” On this question, there are two\nSupreme Court cases that provide some guidance: United\nStates v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Heller.\n\n In Verdugo-Urquidez, the Supreme Court held that a\nperson who “was a citizen and resident of Mexico with no\nvoluntary attachment to the United States, and the place\nsearched was located in Mexico,” was not within “the people”\nprotected by the Fourth Amendment. 494 U.S. at 274–75. The\nCourt explained, “the people” is “a term of art employed in\nselect parts of the Constitution.” Id. at 265. After examining\nthe text of several amendments, the Court concluded:\n\f10 UNITED STATES V. TORRES\n\n While this textual exegesis is by no means\n conclusive, it suggests that “the people”\n protected by the Fourth Amendment, and by\n the First and Second Amendments, and to\n whom rights and powers are reserved in the\n Ninth and Tenth Amendments, refers to a\n class of persons [(1)] who are part of a\n national community or [(2)] who have\n otherwise developed sufficient connection\n with this country to be considered part of that\n community.\n\nId. (citing United States ex rel. Turner v. Williams, 194 U.S.\n279, 292 (1904)).\n\n In Heller, the Supreme Court conducted its “first in-depth\nexamination of the Second Amendment.” 554 U.S. at 635.\nHeller addressed a Second Amendment challenge to “a\nDistrict of Columbia prohibition on the possession of usable\nhandguns in the home.” Id. at 573. The Court engaged in\ntextual and historical analyses, holding that the Second\nAmendment protects an “individual right,” unrelated to\nservice in a militia, and that the District of Columbia’s\nprohibition of usable handguns in the home was\nunconstitutional. Id. at 592–94, 635. Throughout its opinion,\nthe Court described the Second Amendment as “protect[ing]\nthe right of citizens” and “belong[ing] to all Americans.” Id.\nat 581, 595 (emphasis added). The Court also wrote that the\namendment “surely elevates above all other interests the right\nof law-abiding, responsible citizens to use arms in defense of\nhearth and home.” Id. at 635 (emphasis added).\n\n However, the Heller decision did not resolve who had the\nSecond Amendment right; Heller resolved if there were an\n\f UNITED STATES V. TORRES 11\n\nindividual right per se under the Second Amendment. Id. at\n595 (“There seems to us no doubt, on the basis of both text\nand history, that the Second Amendment conferred an\nindividual right to keep and bear arms.”); see also Kachalsky\nv. Cty. of Westchester, 701 F.3d 81, 88–89 (2d Cir. 2012)\n(explaining that, after the Court concluded the Second\nAmendment was meant to protect individual rights, “[t]here\nwas no need in Heller to further define [its] scope . . . .”).\nAnd, the Heller Court also stated that “the people,” as a term,\n“unambiguously refers to all members of the political\ncommunity, not an unspecified subset” and block-quoted the\ndefinition of “the people” as quoted supra from Verdugo-\nUrquidez. Heller, 554 U.S. at 580.\n\n Using these two guiding cases, five of our sister circuits\nhave addressed the question of § 922(g)(5)’s constitutionality;\nhowever, the inconsistency in reasoning among these\ncourts—though unanimous in ultimate outcome—\ndemonstrates that Heller and Verdugo-Urquidez do not\nprovide us a definitive outcome.\n\n In 2011, the Fifth Circuit addressed this question in\nUnited States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.\n2011). The defendant in Portillo-Munoz, an unlawful alien,\nargued that under Verdugo-Urquidez’s construction of “the\npeople,” he should be considered as within the scope of the\nphrase because he had “developed sufficient connection[s]”\nto the United States. Id. at 440. The Fifth Circuit concluded\nthat, “[w]hatever else the term means or includes, the phrase\n‘the people’ in the Second Amendment of the Constitution\ndoes not include aliens illegally in the United States.” Id. at\n442. To reach its holding, the Portillo-Munoz court relied\nheavily on the Supreme Court’s language from Heller that\ndescribed those persons who held a Second Amendment right\n\f12 UNITED STATES V. TORRES\n\nas “members of the political community,” “Americans,” and\n“law-abiding, responsible citizens.” Id. at 440. The court\nconcluded that “aliens who enter or remain in this country\nillegally and without authorization” are not included within\nthe common usage of those terms. Id. Further, the court\nexplicitly rejected the defendant’s Verdugo-Urquidez\nargument, stating that “neither this court nor the Supreme\nCourt has held that the Fourth Amendment extends to a native\nand citizen of another nation who entered and remained in the\nUnited States illegally.” Id. It explained that, even though\n“the people” may be in both amendments, that fact does not\n“mandate[] a holding that the two amendments cover exactly\nthe same groups of people.” Id.4\n\n Similarly, the Fourth Circuit in Carpio-Leon held that\n“illegal aliens do not belong to the class of law-abiding\nmembers of the political community to whom the protection\nof the Second Amendment is given.” 701 F.3d at 981. To\nreach this conclusion, the court acknowledged that Heller\nheld “the people” is a “term of art” and cited to Verdugo-\nUrquidez to define who is included in that term. Id. at 978.\nHowever, the Fourth Circuit concluded that Heller’s specific\nuse of the phrases “law-abiding,” “Americans,” and\n“citizenship” meant the “Supreme Court’s precedent is\ntherefore not clear on whether ‘the people’ includes illegal\naliens.” Id. at 978–81. It then reasoned that the Heller Court’s\nholding that the “core” of the Second Amendment right “is\nthe right of self-defense by ‘law-abiding, responsible\n\n\n 4\n Shortly after the Portillo-Munoz decision, the Eighth Circuit,\nwithout significant discussion, agreed with the Fifth Circuit and held that\n“the protections of the Second Amendment do not extend to aliens\nillegally present in this country.” United States v. Flores, 663 F.3d 1022,\n1023 (8th Cir. 2011) (per curiam).\n\f UNITED STATES V. TORRES 13\n\ncitizens’” was a “distinct analysis.” Id. at 978–79 (emphasis\nin original) (quoting Heller, 554 U.S. at 635). The Fourth\nCircuit then concluded that “[t]he Heller court reached the\nSecond Amendment’s connection to law-abiding citizens\nthrough a historical analysis, independent of its discussion\nabout who constitutes ‘the people.’” Id. at 979. It then\nconducted a historical inquiry as to whether or not unlawful\naliens were included in the definition of “law-abiding,” and\nconcluded that “Carpio-Leon’s historical evidence does not\ncontrovert the historical evidence supporting the notion that\nthe government could disarm individuals who are not law-\nabiding members of the political community.” Id. at 979–81.\n\n Unlike the Fourth, Fifth, and Eighth Circuits, when\nconfronted with the instant question, the Seventh Circuit held,\nin United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.\n2015), that Heller’s notation that the Second, First, and\nFourth Amendments all use the phrase “the people,” and its\ncitation to Verdugo-Urquidez was sufficient to overcome the\nSupreme Court’s “passing references” to “law-abiding\ncitizens” and “members of the political community,” which\ndid not define “people.” Id. at 669–70. The Seventh Circuit\nreasoned that “[a]n interpretation of the Second Amendment\nas consistent with the other amendments passed as part of the\nBill of Rights has the advantage of treating identical phrasing\nin the same way and respecting the fact that the first ten\namendments were adopted as a package.” Id. at 670.\nAccordingly, the Meza-Rodriguez court found the Verdugo-\nUrquidez test was the appropriate mechanism to determine if\nan unlawful alien fell within the scope of the Second\nAmendment right. Id. (“At a minimum, Verdugo-Urquidez\ngoverns the applicability of the Fourth Amendment to\nnoncitizens.”). Ultimately, the court held the unlawful alien\nhad sufficient connections to the United States because he\n\f14 UNITED STATES V. TORRES\n\nhad “lived continuously in the United States for nearly all his\nlife,” but upheld the statute under intermediate scrutiny as an\nappropriate exercise of Congressional authority. Id. at\n670–73.\n\n Finally, in Huitron-Guizar, the Tenth Circuit, like the\nSeventh Circuit, refused to find that Heller’s use of “citizen”\nwas a conclusive determination that unlawful aliens are not\nwithin the scope of the Second Amendment right, but,\ninstead, assumed for the purposes of the analysis that (at least\nsome) unlawful aliens fall within the scope and concluded the\nstatute passed intermediate scrutiny. 678 F.3d at 1168–70.\nThe Tenth Circuit’s conclusion was grounded in the fact that\nthe Heller decision did not purport to decide the scope of the\nphrase “the people” in the Second Amendment, but, rather,\n“the question in Heller was the amendment’s raison\nd’être—does it protect an individual or collective right?—and\naliens were not part of that calculus.” Id. at 1168. Further, the\nTenth Circuit was concerned with finding that Heller’s\ndecision excluded unlawful aliens because it could not\nconclude “the word ‘citizen’ was used deliberately to settle\nthe question, not least because doing so would conflict with\nVerdugo-Urquidez, a case Heller relied on.” Id. As such,\nbecause of the “large and complicated” question of whether\nunlawful aliens were included in the scope of the Second\nAmendment, the Tenth Circuit concluded the prudent course\nof action was to assume so and, ultimately, concluded\n§ 922(g)(5) passed intermediate scrutiny. Id. at 1169–70.\n\n Here, the Government primarily focuses its argument on\nthe approaches of the Fourth, Fifth, and Eighth Circuits by\narguing that unlawful aliens are not included in “the people.”\nFirst, the government, relying on language from Heller,\nargues that historical evidence supports the conclusion that\n\f UNITED STATES V. TORRES 15\n\nunlawful aliens “are not law-abiding, responsible citizens,”\nbecause “the government traditionally had the authority to\ndisarm people who were not part of the political community,\nas well as people who were perceived as potentially disloyal\nor dangerous.” Second, the Government argues that post-\nHeller, the Second Amendment right is “connected to\ncitizenship or membership in the national political\ncommunity,” and unlawful aliens are not in those categories.\n\n However, we agree with the Tenth Circuit’s approach,\nbecause we believe the state of the law precludes us from\nreaching a definite answer on whether unlawful aliens are\nincluded in the scope of the Second Amendment right. The\nTenth Circuit correctly held that this question is “large and\ncomplicated.” Id. at 1169. Therefore, on this record, we find\nit imprudent to examine whether Torres (as an unlawful alien)\nfalls within the scope of the Second Amendment right. As\nsuch, we assume (without deciding) that unlawful aliens, such\nas Torres, fall within the scope of the Second Amendment\nright as articulated under Heller and Vergudo-Urquidez and\nproceed to the appropriate scrutiny we should give to\n§ 922(g)(5). Silvester v. Harris, 843 F.3d 816, 826–27 (9th\nCir. 2016) (“We assume, without deciding, that the regulation\n[imposing a waiting period between purchase and delivery of\na firearm] is within the scope of the Amendment and is not\nthe type of regulation that must be considered presumptively\nvalid.”); Chovan, 735 F.3d at 1137 (assuming existence of\nSecond Amendment rights where record was insufficient to\nshow domestic violence misdemeanants were historically\nexcluded from the scope of the Second Amendment); United\nStates v. Chester, 628 F.3d 673, 681–82 (4th Cir. 2010)\n(assuming that Second Amendment rights were intact, where\nthe evidence was inconclusive on that question); cf. Mahoney\nv. Sessions, 871 F.3d 873, 879 (9th Cir. 2017) (“[B]ecause of\n\f16 UNITED STATES V. TORRES\n\nthe lack of historical evidence in the record before us, we\nassume, without deciding, that the UF Policy burdens conduct\nfalling within the scope of the Second Amendment right.”\n(citations omitted)).\n\nB. Does § 922(g)(5) impose a permissible restriction on\n the Second Amendment right of an unlawful alien?\n\n Before we can conclude whether § 922(g)(5) imposes a\npermissible restriction on the Second Amendment rights of\naliens unlawfully present in the United States, we must first\ndetermine the appropriate level of scrutiny to apply.\n\n 1. Level of scrutiny\n\n Although Torres argues that we should apply strict\nscrutiny, he acknowledges that the relevant case law has not\nmade clear what standard is appropriate.5 We have previously\nconcluded that laws burdening Second Amendment rights\nmust withstand more searching scrutiny than rational basis\n\n\n 5\n Cases from other circuits considering § 922(g)(5) do not\nconclusively show the appropriate level of scrutiny. See Meza-Rodriguez,\n798 F.3d at 672–73 (applying review akin to intermediate scrutiny);\nCarpio-Leon, 701 F.3d at 982–83 (not reaching the issue of the\nappropriate scrutiny under the Second Amendment but applying rational\nbasis review to Fifth Amendment challenge, reasoning that unlawful aliens\ndo not have a fundamental right to bear arms); Huitron-Guizar, 678 F.3d\nat 1169 (assuming intermediate scrutiny applies to Second Amendment\nclaim, based on comparison to challenge made under § 922(g)(8)’s\nprohibition for one who is subject to a domestic violence protection order;\nbut applying rational basis review to equal protection claim, because that\nis the appropriate standard under which to scrutinize “[f]ederal statutes\nthat classify based on alienage”); see generally Flores, 663 F.3d 1022 (not\nreaching the question of the appropriate level of scrutiny); Portillo-Munoz,\n643 F.3d 437 (same).\n\f UNITED STATES V. TORRES 17\n\nreview. Chovan, 735 F.3d at 1137. The level of scrutiny we\napply “depend[s] on (1) ‘how close the law comes to the core\nof the Second Amendment right,’ and (2) ‘the severity of the\nlaw’s burden on the right.’” Id. at 1138 (quoting Ezell v. City\nof Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). “A law that\nimplicates the core of the Second Amendment right and\nseverely burdens that right warrants strict scrutiny.” Silvester,\n843 F.3d at 821. However, intermediate scrutiny is\nappropriate “if a challenged law does not implicate a core\nSecond Amendment right, or does not place a substantial\nburden on the Second Amendment right.” Jackson, 746 F.3d\nat 961. Although not dispositive of the question, we note that\nthere has been “near unanimity in the post-Heller case law\nthat, when considering regulations that fall within the scope\nof the Second Amendment, intermediate scrutiny is\nappropriate.” Silvester, 843 F.3d at 823.\n\n In considering the first question to determine the\nappropriate level of scrutiny—the proximity of the challenged\nlaw to “the core of the Second Amendment right”—“Heller\ntells us that the core of the Second Amendment is ‘the right\nof law-abiding, responsible citizens to use arms in defense of\nhearth and home.’” Chovan, 735 F.3d at 1138 (emphasis\nadded) (quoting Heller, 554 U.S. at 635). Under a different\nsubdivision of § 922(g), which prohibits firearm possession\nfor domestic violence misdemeanants, we held in Chovan that\n“Section 922(g)(9) does not implicate this core Second\nAmendment right because it regulates firearm possession for\nindividuals with criminal convictions.” Id. The defendant’s\nasserted right to possess a firearm for self-defense was not\nwithin the core of the Second Amendment (as identified in\nHeller), because he was not a “law-abiding, responsible\ncitizen.” Id. (quoting Chester, 628 F.3d at 682–83). Likewise,\n§ 922(g)(5) does not burden this core right, because the\n\f18 UNITED STATES V. TORRES\n\nprohibition applies only to those who are present in the\nUnited States “illegally or unlawfully.” 18 U.S.C.\n§ 922(g)(5)(A) (emphasis added).\n\n Under the second question for determining the level of\nscrutiny to apply—“the severity of the law’s burden on the\nright” at issue—we found in Chovan a “quite substantial”\nburden on Second Amendment rights from a statute imposing\na lifelong “‘total prohibition’ on firearm possession for a\nclass of individuals.” Chovan, 735 F.3d at 1138 (analyzing\n§ 922(g)(9)). We found this burden tempered, however, by\nexemptions from the lifetime ban for persons whose\nconviction “has been expunged or set aside” or who have\n“been pardoned or . . . had [their] civil rights restored.” Id. at\n1130, 1138; 18 U.S.C. § 921(a)(33)(B)(ii). Thus, “we applied\n‘intermediate’ rather than ‘strict’ judicial scrutiny in part\nbecause section 922(g)(9)’s ‘burden’ on Second Amendment\nrights was ‘lightened’ by those mechanisms.” Fisher v.\nKealoha, 855 F.3d 1067, 1071 n.2 (9th Cir. 2017) (citing\nChovan, 735 F.3d at 1138). The burden found in § 922(g)(5)\nis similarly tempered, because there is nothing indicating that\nthe prohibition on firearm possession extends beyond the time\nthat an alien’s presence in the United States is unlawful.\nThe factual condition triggering the prohibition in\n§ 922(g)(9)—that a person “has been convicted” of a\ndomestic violence misdemeanor—is phrased in the past tense,\nindicating that (once that event occurs) the ban continues for\nlife, unless one of the enumerated exceptions applies.\nConversely, the factual condition triggering the prohibition in\n§ 922(g)(5)—that a person “is illegally or unlawfully in the\nUnited States”—is phrased in the present tense, indicating\nthat the person affected by that provision may remove himself\nfrom the prohibition by acquiring lawful immigration status.\nThe burden imposed by § 922(g)(5) is, therefore, tempered.\n\f UNITED STATES V. TORRES 19\n\n Because § 922(g)(5) does not implicate the core Second\nAmendment right, and because its burden is tempered, we\nproceed to apply intermediate scrutiny. See Fyock v.\nSunnyvale, 779 F.3d 991, 998–99 (9th Cir. 2015)\n(“Intermediate scrutiny is appropriate if the regulation at\nissue does not implicate the core Second Amendment right or\ndoes not place a substantial burden on that right.”); Chovan,\n735 F.3d at 1138.\n\n 2. Application of intermediate scrutiny\n\n For a challenged statute to survive intermediate scrutiny,\nit must have (1) a “significant, substantial, or important”\ngovernment objective; and (2) a reasonable fit between that\nobjective and the conduct regulated. Chovan, 735 F.3d at\n1139. A statute need not utilize “the least restrictive means of\nachieving its interest” in order to withstand intermediate\nscrutiny. Fyock, 779 F.3d at 1000. Instead, the statute simply\nneeds to “promote[] a ‘substantial government interest that\nwould be achieved less effectively absent the regulation.’” Id.\n(quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th\nCir. 1998)).\n\n The government argues that it has important “interests in\ncrime control and public safety.” We agree. “The\n[government] has the important government interest of\nensuring the safety of both the public and its police officers.”\nMahoney, 871 F.3d at 882 (citing United States v. Salerno,\n481 U.S. 739, 748 (1987); Jackson, 746 F.3d at 965); see also\nBinderup, 836 F.3d at 390 (“The stated purpose of the 1968\nrevision was to curb crime by keeping firearms out of the\nhands of those not legally entitled to possess them because of\nage, criminal background, or incompetency.” (Fuentes, J.,\nconcurring in part and dissenting in part) (internal citations\n\f20 UNITED STATES V. TORRES\n\nomitted)); Meza-Rodriguez, 798 F.3d at 673 (“Congress’s\nobjective in passing § 922(g) was ‘to keep guns out of the\nhands of presumptively risky people’ and to ‘suppress[]\narmed violence.’” (alteration in original) (quoting United\nStates v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010))).\nThese government interests are particularly applicable to\nthose subject to removal. “[T]hose who show a willingness to\ndefy our law are . . . a group that ought not be armed when\nauthorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If\narmed, unlawful aliens could pose a threat to immigration\nofficers or other law enforcement who attempt to apprehend\nand remove them.\n\n Further,“[unlawful aliens] often live ‘largely outside the\nformal system of registration, employment, and identification,\n[and] are harder to trace and more likely to assume a false\nidentity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting\nHuitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on\nthe possession of firearms by [unlawful aliens] is\nsubstantially related to the statute’s general objectives\nbecause such persons are able purposefully to evade detection\nby law enforcement.” Id.\n\n Finally, “the government has a[] strong interest in\npreventing people who already have disrespected the law\n(including, in addition to aliens unlawfully in the country,\nfelons, § 922(g)(1), fugitives, § 922(g)(2), and those\nconvicted of misdemeanor crimes of domestic violence,\n§ 922(g)(9)) from possessing guns.” Id. Section 922(g)(5) and\nother concurrent additions to § 922(g) “reflect[] Congress’s\njudgment that persons within these categories ‘may not be\ntrusted to possess a firearm without becoming a threat to\nsociety.’” Binderup, 836 F.3d at 390 & n.98 (Fuentes, J.,\nconcurring in part and dissenting in part) (quoting\n\f UNITED STATES V. TORRES 21\n\nScarborough v. United States, 431 U.S. 563, 572 (1977)).\n“[T]hese restrictions . . . disarm groups whose members\nCongress believes are unable or unwilling to conduct\nthemselves in conformity with the responsibilities of\ncitizenship.” Id. at 390–91.\n\n In sum, the government’s interests in controlling crime\nand ensuring public safety are promoted by keeping firearms\nout of the hands of unlawful aliens—who are subject to\nremoval, are difficult to monitor due to an inherent incentive\nto falsify information and evade law enforcement, and have\nalready shown they are unable or unwilling to conform their\nconduct to the laws of this country. These important\ngovernment interests “would be achieved less effectively”\nwere it not for § 922(g)(5). Fyock, 779 F.3d at 1000.6\nAccordingly, § 922(g)(5) survives intermediate scrutiny.\n\n IV. CONCLUSION\n\n The present state of the law leaves us unable to conclude\nwith certainty whether aliens unlawfully present in the United\nStates are part of “the people” to whom Second Amendment\nprotections extend. Nonetheless, assuming that unlawful\naliens do hold some degree of Second Amendment rights,\n\n\n\n\n 6\n Although a prohibition applying to all unlawful aliens may be over-\ninclusive, a statute need not utilize “the least restrictive means of\nachieving its interest” in order to withstand intermediate scrutiny. Fyock,\n779 F.3d at 1000; see also Huitron-Guizar, 678 F.3d at 1170 (recognizing\nthat § 922(g)(1)’s prohibition on firearm possession by all those convicted\nof felonies is a valid restriction, despite the reality that “[t]he class of\nconvicted felons, too, includes non-violent offenders”).\n\f22 UNITED STATES V. TORRES\n\nthose rights are not unlimited, and the restriction in\n§ 922(g)(5) is a valid exercise of Congress’s authority.7\n\n AFFIRMED.\n\n\n\n\n 7\n This conclusion also necessarily disposes of Torres’s derivative\nequal protection and due process claims. Teixeira v. Cty. of Alameda, 822\nF.3d 1047, 1052 (9th Cir.), reh’g en banc granted, 854 F.3d 1046 (9th Cir.\n2016); see also Portillo-Munoz, 643 F.3d at 442 n.4 (explaining that,\nbecause the statute at issue (§ 922(g)(5)) was a federal law to which the\nBill of Rights directly applied (without incorporation), the alien could\npursue the right only under the Second Amendment and could not “look\nto the due process clause as an additional source of protection for a right\nto keep and bear arms” (citing Graham v. Connor, 490 U.S. 386, 394–95\n(1989))).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356919/", "author_raw": "N.R. SMITH, Circuit Judge:"}]}	SIDNEY R THOMAS	N RANDY SMITH	SHARON L GLEASON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579666/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Victor Torres\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n UNITED STATES OF AMERICA, No. 15-10492\n Plaintiff-Appellee,\n D.C. No.\n v. 5:14-cr-00255-EJD-1\n\n VICTOR MANUEL TORRES,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Edward J. Davila, District Judge, Presiding\n\n Argued and Submitted December 12, 2016\n San Francisco, California\n\n Filed January 8, 2019\n\nBefore: Sidney R. Thomas,* Chief Judge, N. Randy Smith,\n Circuit Judge, and Sharon L. Gleason,** District Judge.\n\n Opinion by Judge N.R. Smith\n\n\n \n Following the retirement of Judge Kozinski, Chief Judge Sidney R.\nThomas was randomly drawn to replace him. Ninth Cir. Gen. Order 3.2.h.\nChief Judge Thomas has read the briefs, reviewed the record, and watched\na video recording of oral argument.\n \n The Honorable Sharon L. Gleason, United States District Judge for\nthe District of Alaska, sitting by designation.\n\f2 UNITED STATES V. TORRES\n\n SUMMARY\n\n\n Criminal Law\n\n The panel affirmed a conviction for possessing a firearm\nwhile being an alien unlawfully in the United States in\nviolation of 18 U.S.C. § 922(g)(5)(A).\n\n Assuming without deciding that unlawful aliens in this\ncountry hold some degree of rights under the Second\nAmendment, the panel held that § 922(g)(5) is constitutional\nunder intermediate scrutiny.\n\n\n COUNSEL\n\nAdam G. Gasner (argued), Law Office of Adam G. Gasner,\nSan Francisco, California, for Defendant-Appellant.\n\nWilliam James Gullotta (argued), Special Assistant United\nStates Attorney; Barbara J. Valliere, Chief, Appellate\nDivision; United States Attorney’s Office, Oakland,\nCalifornia; for Plaintiff-Appellee.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. TORRES 3\n\n OPINION\n\nN.R. SMITH, Circuit Judge:\n\n Assuming that unlawful aliens in this country hold some\ndegree of rights under the Second Amendment, a statute\nprohibiting the possession of firearms by an alien unlawfully\npresent in the United States withstands constitutional scrutiny\nand is a valid exercise of Congress’s authority.\n\n I. BACKGROUND\n\n Defendant Victor Manuel Torres appeals his conviction\nfor possessing a firearm while “being an alien . . . illegally or\nunlawfully in the United States,” in violation of 18 U.S.C.\n§ 922(g)(5)(A).1 Torres was born in Mexico in 1985.\nApproximately four years later, he, his younger sister, and his\nmother moved to San Jose, California, to join Torres’s father,\nwho had entered the United States a year earlier. Nothing in\nthe record suggests that either of Torres’s parents ever had an\nimmigration status through which Torres could qualify for\nlegal status in the United States. Torres was enrolled in the\nschool system in San Jose from 1991 until he was expelled in\n2000. This expulsion resulted from Torres’s affiliation with\nthe Sur Santos Pride gang, which he joined at age fourteen.\nBecause of his gang involvement and attendant trouble at\nschool, Torres’s parents sent him back to live in Mexico in\n\n\n 1\n The discourse relevant to our discussion uses a variety of terms,\nsuch as “unlawful alien,” “illegal alien,” and “undocumented immigrant”\n(among several others) to refer to a person who is not a citizen of the\nUnited States and whose presence in the United States is not lawful.\nThroughout this opinion, we use the term “unlawful alien” to refer to a\nperson with this immigration status.\n\f4 UNITED STATES V. TORRES\n\n2002, when he was sixteen years old. After he reached\nadulthood, Torres attempted to unlawfully enter the United\nStates three times in June 2005. During each of his first two\nattempts, Torres was apprehended and permitted to\nvoluntarily return to Mexico. However, he successfully\nentered the United States unlawfully on the third attempt.\nUpon this reentry, Torres joined his family in San Jose and\nbegan working with his father in landscaping. In 2012, Torres\nmarried a United States citizen in San Jose. However, Torres\nnever applied for legal status.\n\n In March 2014, a citizen reported to the Los Gatos Police\nDepartment that there was a suspicious pickup truck in a\nnearby parking lot and that its driver might be attempting to\nsell a stolen bicycle. When officers arrived, the driver’s side\ndoor of the suspicious pickup was open. The officers found\nTorres working on something on the bed of the vehicle.\nThrough the open driver’s side door, officers saw a backpack\nand what appeared to be counterfeit license plates. The bed of\nthe pickup contained “a newer looking Trek road bike.”\nTorres told the officers that he owned the bicycle and that he\nhad received it as a gift in December 2013. However, by\nreporting the bicycle’s serial number to dispatch, officers\nconfirmed that it had been reported stolen two days earlier.\nWhen later confronted with this information, Torres admitted\nhe knew the bicycle was stolen. Officers requested that Torres\nprovide identification. Torres responded that it was in his\nvehicle. When Torres began to reach into the pickup to\nallegedly retrieve his identification, the officers stopped him\nout of concern for safety. An officer then looked into the\nvehicle and did not see any identification, but the officer\nasked if he could look inside Torres’s backpack. Torres\nconsented. Inside the backpack, the officer found a loaded .22\n\f UNITED STATES V. TORRES 5\n\ncaliber revolver, bolt cutters, and what appeared to be two\nhomemade silencers for the firearm.\n\n Upon this discovery, officers placed Torres under arrest.\nIn addition to the contents of Torres’s backpack, the\nsubsequent search of his vehicle revealed a small amount of\nmethamphetamine and a glass pipe. Officers transported\nTorres to a holding facility where they explained his Miranda\nrights to him before conducting an interview. In response to\nquestions about two of his tattoos that indicated a gang\naffiliation, Torres admitted to being an active member of Sur\nSantos Pride. According to Torres, the stolen bicycle and the\nbackpack containing the firearm had been placed in his\nvehicle by a friend (a fellow gang member), whose identity\nTorres refused to reveal.\n\n Subsequently, Torres was federally indicted in the\nNorthern District of California for one count of being an\nunlawful alien in possession of a firearm, in violation of\n18 U.S.C. § 922(g)(5)(A).2 Torres moved to dismiss the\nindictment, arguing that Second Amendment protections\napply to unlawful aliens and that § 922(g)(5) violates the\nSecond Amendment. The district court denied the motion,\nand the case proceeded to trial, resulting in Torres’s\nconviction. The district court imposed a sentence of twenty-\nseven months of incarceration followed by three years of\nsupervised release.\n\n On appeal, Torres admits that he is an alien unlawfully\npresent in the United States and that he possessed the firearm\nfound in his vehicle. However, he contests his conviction by\n\n 2\n Torres was also charged with several offenses in California state\ncourt, which are not at issue in this case.\n\f6 UNITED STATES V. TORRES\n\nchallenging on constitutional grounds the federal statute\nunder which he was convicted.\n\n II. STANDARD OF REVIEW\n\n We consider challenges to the constitutionality of a\nstatute de novo. United States v. Garcia, 768 F.3d 822, 827\n(9th Cir. 2014).\n\n III. DISCUSSION\n\n The Second Amendment to the United States Constitution\nguarantees that “the right of the people to keep and bear\nArms, shall not be infringed.” U.S. Const. amend. II. We\nmust answer, as an issue of first impression in our circuit,\nwhether this right is violated by a federal criminal statute\nprohibiting the possession of a firearm by an alien unlawfully\nin this country. The Second Amendment’s application to\nunlawful aliens has been widely debated among courts and\nscholars in recent years, with analytical divisions even among\nthose agreeing in result. We proceed to address this issue,\nfirst, by outlining the general framework to analyze\nchallenges under the Second Amendment. We then review\nthe approach of other circuits to Second Amendment\nchallenges to the specific statute at issue. Finally turning to\nthe parties’ arguments, we assume (without deciding) that the\nSecond Amendment extends to unlawful aliens, and we\nconclude that § 922(g)(5) is constitutional under intermediate\nscrutiny.\n\n Central to the rights guaranteed by the Second\nAmendment is “the inherent right of self-defense.” District of\nColumbia v. Heller, 554 U.S. 570, 628 (2008). However,\nwhile the Second Amendment “guarantee[s] the individual\n\f UNITED STATES V. TORRES 7\n\nright to possess and carry weapons in case of confrontation,”\nthe right “is not unlimited.” Id. at 592, 626. Congress may\nplace certain limits on where the right is exercised, how the\nright is exercised, and who may exercise the right. See id. at\n626–27; United States v. Carpio-Leon, 701 F.3d 974, 977 (4th\nCir. 2012) (“[T]he Second Amendment does not guarantee\nthe right to possess for every purpose, to possess every type\nof weapon, to possess at every place, or to possess by every\nperson.”); United States v. Huitron-Guizar, 678 F.3d 1164,\n1166 (10th Cir. 2012) (“The right to bear arms, however\nvenerable, is qualified by what one might call the ‘who,’\n‘what,’ ‘where,’ ‘when,’ and ‘why.’”). In fact, Congress has\ndetermined that certain groups should be prohibited\naltogether from possessing firearms. See 18 U.S.C. § 922(g).\nThis case concerns such a limitation. Under § 922(g)(5), it is\nunlawful for an alien “illegally or unlawfully in the United\nStates . . . to . . . possess in or affecting commerce, any\nfirearm.” Torres challenges this prohibition.3 According to\nTorres, § 922(g)(5) violates the Second Amendment, because\nit completely destroys (rather than limits) Second\nAmendment protections as to an entire class of people. See\nHeller, 554 U.S. at 628–29.\n\n In United States v. Chovan, we adopted a two-step inquiry\nto analyze claims that a law violates the Second Amendment.\n\n\n 3\n Torres claims to make facial and as-applied challenges to this\nstatute. However, we agree with the government that Torres fails to\nexplain his theory of how § 922(g)(5) is unconstitutional as applied to\nhim. Therefore, we consider only the facial challenge. See Entm’t\nResearch Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217\n(9th Cir. 1997) (“We review only issues which are argued specifically and\ndistinctly in a party’s opening brief. We will not manufacture arguments\nfor an appellant, and a bare assertion does not preserve a claim . . . .”\n(citation omitted)).\n\f8 UNITED STATES V. TORRES\n\n735 F.3d 1127, 1136 (9th Cir. 2013). This test “(1) asks\nwhether the challenged law burdens conduct protected by the\nSecond Amendment and (2) if so, directs courts to apply an\nappropriate level of scrutiny.” Id. Accordingly, we turn to the\nfirst question.\n\nA. Does § 922(g)(5) burden conduct protected by the\n Second Amendment?\n\n Under the first Chovan step, we cannot “apply the Second\nAmendment to protect a right that does not exist under the\nAmendment.” Peruta v. Cty. of San Diego, 824 F.3d 919, 942\n(9th Cir. 2016) (en banc), cert. denied sub nom. Peruta v.\nCalifornia, 137 S. Ct. 1995 (2017). Therefore, the first step\nof our analysis requires us to explore the amendment’s reach\n“based on a ‘historical understanding of the scope of the\n[Second Amendment] right.’” Jackson v. City & Cty. of San\nFrancisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Heller,\n554 U.S. at 625). A law does not burden Second Amendment\nrights, if it either falls within “one of the ‘presumptively\nlawful regulatory measures’ identified in Heller” or regulates\nconduct that historically has fallen outside the scope of the\nSecond Amendment. Id.\n\n The non-exhaustive examples of presumptively lawful\nregulations include “longstanding prohibitions on the\npossession of firearms by felons and the mentally ill, or laws\nforbidding the carrying of firearms in sensitive places such as\nschools and government buildings, or laws imposing\nconditions and qualifications on the commercial sale of\narms.” Heller, 554 U.S. at 626–27 & n.26; see also United\nStates v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).\n“These measures comport with the Second Amendment\nbecause they affect individuals or conduct unprotected by the\n\f UNITED STATES V. TORRES 9\n\nright to keep and bear arms.” Binderup v. Attorney Gen. U.S.,\n836 F.3d 336, 343 (3d Cir. 2016) (en banc), cert. denied sub\nnom. Sessions v. Binderup, 137 S. Ct. 2323 (2017), and cert.\ndenied sub nom. Binderup v. Sessions, 137 S. Ct. 2323\n(2017). However, the government does not argue that\n§ 922(g)(5) is a presumptively lawful regulation, so that\nquestion is not before us. Therefore, we focus our inquiry on\nwhether possession of firearms by unlawful aliens falls within\nthe “historical understanding of the scope of the [Second\nAmendment] right.” Heller, 554 U.S. at 625; see also id. at\n626–28 (outlining some of the historical limits on the scope\nof the Second Amendment right).\n\n In this case, the question of whether possession of\nfirearms by unlawful aliens has historically fallen outside the\nSecond Amendment requires an examination of whether\nunlawful aliens are included within the term “the people.”\nThe text of the Second Amendment plainly states that the\nright “to keep and bear Arms” is reserved only to “the\npeople.” Far from plain, however, is the scope of those who\nfall within “the people.” On this question, there are two\nSupreme Court cases that provide some guidance: United\nStates v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Heller.\n\n In Verdugo-Urquidez, the Supreme Court held that a\nperson who “was a citizen and resident of Mexico with no\nvoluntary attachment to the United States, and the place\nsearched was located in Mexico,” was not within “the people”\nprotected by the Fourth Amendment. 494 U.S. at 274–75. The\nCourt explained, “the people” is “a term of art employed in\nselect parts of the Constitution.” Id. at 265. After examining\nthe text of several amendments, the Court concluded:\n\f10 UNITED STATES V. TORRES\n\n While this textual exegesis is by no means\n conclusive, it suggests that “the people”\n protected by the Fourth Amendment, and by\n the First and Second Amendments, and to\n whom rights and powers are reserved in the\n Ninth and Tenth Amendments, refers to a\n class of persons [(1)] who are part of a\n national community or [(2)] who have\n otherwise developed sufficient connection\n with this country to be considered part of that\n community.\n\nId. (citing United States ex rel. Turner v. Williams, 194 U.S.\n279, 292 (1904)).\n\n In Heller, the Supreme Court conducted its “first in-depth\nexamination of the Second Amendment.” 554 U.S. at 635.\nHeller addressed a Second Amendment challenge to “a\nDistrict of Columbia prohibition on the possession of usable\nhandguns in the home.” Id. at 573. The Court engaged in\ntextual and historical analyses, holding that the Second\nAmendment protects an “individual right,” unrelated to\nservice in a militia, and that the District of Columbia’s\nprohibition of usable handguns in the home was\nunconstitutional. Id. at 592–94, 635. Throughout its opinion,\nthe Court described the Second Amendment as “protect[ing]\nthe right of citizens” and “belong[ing] to all Americans.” Id.\nat 581, 595 (emphasis added). The Court also wrote that the\namendment “surely elevates above all other interests the right\nof law-abiding, responsible citizens to use arms in defense of\nhearth and home.” Id. at 635 (emphasis added).\n\n However, the Heller decision did not resolve who had the\nSecond Amendment right; Heller resolved if there were an\n\f UNITED STATES V. TORRES 11\n\nindividual right per se under the Second Amendment. Id. at\n595 (“There seems to us no doubt, on the basis of both text\nand history, that the Second Amendment conferred an\nindividual right to keep and bear arms.”); see also Kachalsky\nv. Cty. of Westchester, 701 F.3d 81, 88–89 (2d Cir. 2012)\n(explaining that, after the Court concluded the Second\nAmendment was meant to protect individual rights, “[t]here\nwas no need in Heller to further define [its] scope . . . .”).\nAnd, the Heller Court also stated that “the people,” as a term,\n“unambiguously refers to all members of the political\ncommunity, not an unspecified subset” and block-quoted the\ndefinition of “the people” as quoted supra from Verdugo-\nUrquidez. Heller, 554 U.S. at 580.\n\n Using these two guiding cases, five of our sister circuits\nhave addressed the question of § 922(g)(5)’s constitutionality;\nhowever, the inconsistency in reasoning among these\ncourts—though unanimous in ultimate outcome—\ndemonstrates that Heller and Verdugo-Urquidez do not\nprovide us a definitive outcome.\n\n In 2011, the Fifth Circuit addressed this question in\nUnited States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.\n2011). The defendant in Portillo-Munoz, an unlawful alien,\nargued that under Verdugo-Urquidez’s construction of “the\npeople,” he should be considered as within the scope of the\nphrase because he had “developed sufficient connection[s]”\nto the United States. Id. at 440. The Fifth Circuit concluded\nthat, “[w]hatever else the term means or includes, the phrase\n‘the people’ in the Second Amendment of the Constitution\ndoes not include aliens illegally in the United States.” Id. at\n442. To reach its holding, the Portillo-Munoz court relied\nheavily on the Supreme Court’s language from Heller that\ndescribed those persons who held a Second Amendment right\n\f12 UNITED STATES V. TORRES\n\nas “members of the political community,” “Americans,” and\n“law-abiding, responsible citizens.” Id. at 440. The court\nconcluded that “aliens who enter or remain in this country\nillegally and without authorization” are not included within\nthe common usage of those terms. Id. Further, the court\nexplicitly rejected the defendant’s Verdugo-Urquidez\nargument, stating that “neither this court nor the Supreme\nCourt has held that the Fourth Amendment extends to a native\nand citizen of another nation who entered and remained in the\nUnited States illegally.” Id. It explained that, even though\n“the people” may be in both amendments, that fact does not\n“mandate[] a holding that the two amendments cover exactly\nthe same groups of people.” Id.4\n\n Similarly, the Fourth Circuit in Carpio-Leon held that\n“illegal aliens do not belong to the class of law-abiding\nmembers of the political community to whom the protection\nof the Second Amendment is given.” 701 F.3d at 981. To\nreach this conclusion, the court acknowledged that Heller\nheld “the people” is a “term of art” and cited to Verdugo-\nUrquidez to define who is included in that term. Id. at 978.\nHowever, the Fourth Circuit concluded that Heller’s specific\nuse of the phrases “law-abiding,” “Americans,” and\n“citizenship” meant the “Supreme Court’s precedent is\ntherefore not clear on whether ‘the people’ includes illegal\naliens.” Id. at 978–81. It then reasoned that the Heller Court’s\nholding that the “core” of the Second Amendment right “is\nthe right of self-defense by ‘law-abiding, responsible\n\n\n 4\n Shortly after the Portillo-Munoz decision, the Eighth Circuit,\nwithout significant discussion, agreed with the Fifth Circuit and held that\n“the protections of the Second Amendment do not extend to aliens\nillegally present in this country.” United States v. Flores, 663 F.3d 1022,\n1023 (8th Cir. 2011) (per curiam).\n\f UNITED STATES V. TORRES 13\n\ncitizens’” was a “distinct analysis.” Id. at 978–79 (emphasis\nin original) (quoting Heller, 554 U.S. at 635). The Fourth\nCircuit then concluded that “[t]he Heller court reached the\nSecond Amendment’s connection to law-abiding citizens\nthrough a historical analysis, independent of its discussion\nabout who constitutes ‘the people.’” Id. at 979. It then\nconducted a historical inquiry as to whether or not unlawful\naliens were included in the definition of “law-abiding,” and\nconcluded that “Carpio-Leon’s historical evidence does not\ncontrovert the historical evidence supporting the notion that\nthe government could disarm individuals who are not law-\nabiding members of the political community.” Id. at 979–81.\n\n Unlike the Fourth, Fifth, and Eighth Circuits, when\nconfronted with the instant question, the Seventh Circuit held,\nin United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.\n2015), that Heller’s notation that the Second, First, and\nFourth Amendments all use the phrase “the people,” and its\ncitation to Verdugo-Urquidez was sufficient to overcome the\nSupreme Court’s “passing references” to “law-abiding\ncitizens” and “members of the political community,” which\ndid not define “people.” Id. at 669–70. The Seventh Circuit\nreasoned that “[a]n interpretation of the Second Amendment\nas consistent with the other amendments passed as part of the\nBill of Rights has the advantage of treating identical phrasing\nin the same way and respecting the fact that the first ten\namendments were adopted as a package.” Id. at 670.\nAccordingly, the Meza-Rodriguez court found the Verdugo-\nUrquidez test was the appropriate mechanism to determine if\nan unlawful alien fell within the scope of the Second\nAmendment right. Id. (“At a minimum, Verdugo-Urquidez\ngoverns the applicability of the Fourth Amendment to\nnoncitizens.”). Ultimately, the court held the unlawful alien\nhad sufficient connections to the United States because he\n\f14 UNITED STATES V. TORRES\n\nhad “lived continuously in the United States for nearly all his\nlife,” but upheld the statute under intermediate scrutiny as an\nappropriate exercise of Congressional authority. Id. at\n670–73.\n\n Finally, in Huitron-Guizar, the Tenth Circuit, like the\nSeventh Circuit, refused to find that Heller’s use of “citizen”\nwas a conclusive determination that unlawful aliens are not\nwithin the scope of the Second Amendment right, but,\ninstead, assumed for the purposes of the analysis that (at least\nsome) unlawful aliens fall within the scope and concluded the\nstatute passed intermediate scrutiny. 678 F.3d at 1168–70.\nThe Tenth Circuit’s conclusion was grounded in the fact that\nthe Heller decision did not purport to decide the scope of the\nphrase “the people” in the Second Amendment, but, rather,\n“the question in Heller was the amendment’s raison\nd’être—does it protect an individual or collective right?—and\naliens were not part of that calculus.” Id. at 1168. Further, the\nTenth Circuit was concerned with finding that Heller’s\ndecision excluded unlawful aliens because it could not\nconclude “the word ‘citizen’ was used deliberately to settle\nthe question, not least because doing so would conflict with\nVerdugo-Urquidez, a case Heller relied on.” Id. As such,\nbecause of the “large and complicated” question of whether\nunlawful aliens were included in the scope of the Second\nAmendment, the Tenth Circuit concluded the prudent course\nof action was to assume so and, ultimately, concluded\n§ 922(g)(5) passed intermediate scrutiny. Id. at 1169–70.\n\n Here, the Government primarily focuses its argument on\nthe approaches of the Fourth, Fifth, and Eighth Circuits by\narguing that unlawful aliens are not included in “the people.”\nFirst, the government, relying on language from Heller,\nargues that historical evidence supports the conclusion that\n\f UNITED STATES V. TORRES 15\n\nunlawful aliens “are not law-abiding, responsible citizens,”\nbecause “the government traditionally had the authority to\ndisarm people who were not part of the political community,\nas well as people who were perceived as potentially disloyal\nor dangerous.” Second, the Government argues that post-\nHeller, the Second Amendment right is “connected to\ncitizenship or membership in the national political\ncommunity,” and unlawful aliens are not in those categories.\n\n However, we agree with the Tenth Circuit’s approach,\nbecause we believe the state of the law precludes us from\nreaching a definite answer on whether unlawful aliens are\nincluded in the scope of the Second Amendment right. The\nTenth Circuit correctly held that this question is “large and\ncomplicated.” Id. at 1169. Therefore, on this record, we find\nit imprudent to examine whether Torres (as an unlawful alien)\nfalls within the scope of the Second Amendment right. As\nsuch, we assume (without deciding) that unlawful aliens, such\nas Torres, fall within the scope of the Second Amendment\nright as articulated under Heller and Vergudo-Urquidez and\nproceed to the appropriate scrutiny we should give to\n§ 922(g)(5). Silvester v. Harris, 843 F.3d 816, 826–27 (9th\nCir. 2016) (“We assume, without deciding, that the regulation\n[imposing a waiting period between purchase and delivery of\na firearm] is within the scope of the Amendment and is not\nthe type of regulation that must be considered presumptively\nvalid.”); Chovan, 735 F.3d at 1137 (assuming existence of\nSecond Amendment rights where record was insufficient to\nshow domestic violence misdemeanants were historically\nexcluded from the scope of the Second Amendment); United\nStates v. Chester, 628 F.3d 673, 681–82 (4th Cir. 2010)\n(assuming that Second Amendment rights were intact, where\nthe evidence was inconclusive on that question); cf. Mahoney\nv. Sessions, 871 F.3d 873, 879 (9th Cir. 2017) (“[B]ecause of\n\f16 UNITED STATES V. TORRES\n\nthe lack of historical evidence in the record before us, we\nassume, without deciding, that the UF Policy burdens conduct\nfalling within the scope of the Second Amendment right.”\n(citations omitted)).\n\nB. Does § 922(g)(5) impose a permissible restriction on\n the Second Amendment right of an unlawful alien?\n\n Before we can conclude whether § 922(g)(5) imposes a\npermissible restriction on the Second Amendment rights of\naliens unlawfully present in the United States, we must first\ndetermine the appropriate level of scrutiny to apply.\n\n 1. Level of scrutiny\n\n Although Torres argues that we should apply strict\nscrutiny, he acknowledges that the relevant case law has not\nmade clear what standard is appropriate.5 We have previously\nconcluded that laws burdening Second Amendment rights\nmust withstand more searching scrutiny than rational basis\n\n\n 5\n Cases from other circuits considering § 922(g)(5) do not\nconclusively show the appropriate level of scrutiny. See Meza-Rodriguez,\n798 F.3d at 672–73 (applying review akin to intermediate scrutiny);\nCarpio-Leon, 701 F.3d at 982–83 (not reaching the issue of the\nappropriate scrutiny under the Second Amendment but applying rational\nbasis review to Fifth Amendment challenge, reasoning that unlawful aliens\ndo not have a fundamental right to bear arms); Huitron-Guizar, 678 F.3d\nat 1169 (assuming intermediate scrutiny applies to Second Amendment\nclaim, based on comparison to challenge made under § 922(g)(8)’s\nprohibition for one who is subject to a domestic violence protection order;\nbut applying rational basis review to equal protection claim, because that\nis the appropriate standard under which to scrutinize “[f]ederal statutes\nthat classify based on alienage”); see generally Flores, 663 F.3d 1022 (not\nreaching the question of the appropriate level of scrutiny); Portillo-Munoz,\n643 F.3d 437 (same).\n\f UNITED STATES V. TORRES 17\n\nreview. Chovan, 735 F.3d at 1137. The level of scrutiny we\napply “depend[s] on (1) ‘how close the law comes to the core\nof the Second Amendment right,’ and (2) ‘the severity of the\nlaw’s burden on the right.’” Id. at 1138 (quoting Ezell v. City\nof Chicago, 651 F.3d 684, 703 (7th Cir. 2011)). “A law that\nimplicates the core of the Second Amendment right and\nseverely burdens that right warrants strict scrutiny.” Silvester,\n843 F.3d at 821. However, intermediate scrutiny is\nappropriate “if a challenged law does not implicate a core\nSecond Amendment right, or does not place a substantial\nburden on the Second Amendment right.” Jackson, 746 F.3d\nat 961. Although not dispositive of the question, we note that\nthere has been “near unanimity in the post-Heller case law\nthat, when considering regulations that fall within the scope\nof the Second Amendment, intermediate scrutiny is\nappropriate.” Silvester, 843 F.3d at 823.\n\n In considering the first question to determine the\nappropriate level of scrutiny—the proximity of the challenged\nlaw to “the core of the Second Amendment right”—“Heller\ntells us that the core of the Second Amendment is ‘the right\nof law-abiding, responsible citizens to use arms in defense of\nhearth and home.’” Chovan, 735 F.3d at 1138 (emphasis\nadded) (quoting Heller, 554 U.S. at 635). Under a different\nsubdivision of § 922(g), which prohibits firearm possession\nfor domestic violence misdemeanants, we held in Chovan that\n“Section 922(g)(9) does not implicate this core Second\nAmendment right because it regulates firearm possession for\nindividuals with criminal convictions.” Id. The defendant’s\nasserted right to possess a firearm for self-defense was not\nwithin the core of the Second Amendment (as identified in\nHeller), because he was not a “law-abiding, responsible\ncitizen.” Id. (quoting Chester, 628 F.3d at 682–83). Likewise,\n§ 922(g)(5) does not burden this core right, because the\n\f18 UNITED STATES V. TORRES\n\nprohibition applies only to those who are present in the\nUnited States “illegally or unlawfully.” 18 U.S.C.\n§ 922(g)(5)(A) (emphasis added).\n\n Under the second question for determining the level of\nscrutiny to apply—“the severity of the law’s burden on the\nright” at issue—we found in Chovan a “quite substantial”\nburden on Second Amendment rights from a statute imposing\na lifelong “‘total prohibition’ on firearm possession for a\nclass of individuals.” Chovan, 735 F.3d at 1138 (analyzing\n§ 922(g)(9)). We found this burden tempered, however, by\nexemptions from the lifetime ban for persons whose\nconviction “has been expunged or set aside” or who have\n“been pardoned or . . . had [their] civil rights restored.” Id. at\n1130, 1138; 18 U.S.C. § 921(a)(33)(B)(ii). Thus, “we applied\n‘intermediate’ rather than ‘strict’ judicial scrutiny in part\nbecause section 922(g)(9)’s ‘burden’ on Second Amendment\nrights was ‘lightened’ by those mechanisms.” Fisher v.\nKealoha, 855 F.3d 1067, 1071 n.2 (9th Cir. 2017) (citing\nChovan, 735 F.3d at 1138). The burden found in § 922(g)(5)\nis similarly tempered, because there is nothing indicating that\nthe prohibition on firearm possession extends beyond the time\nthat an alien’s presence in the United States is unlawful.\nThe factual condition triggering the prohibition in\n§ 922(g)(9)—that a person “has been convicted” of a\ndomestic violence misdemeanor—is phrased in the past tense,\nindicating that (once that event occurs) the ban continues for\nlife, unless one of the enumerated exceptions applies.\nConversely, the factual condition triggering the prohibition in\n§ 922(g)(5)—that a person “is illegally or unlawfully in the\nUnited States”—is phrased in the present tense, indicating\nthat the person affected by that provision may remove himself\nfrom the prohibition by acquiring lawful immigration status.\nThe burden imposed by § 922(g)(5) is, therefore, tempered.\n\f UNITED STATES V. TORRES 19\n\n Because § 922(g)(5) does not implicate the core Second\nAmendment right, and because its burden is tempered, we\nproceed to apply intermediate scrutiny. See Fyock v.\nSunnyvale, 779 F.3d 991, 998–99 (9th Cir. 2015)\n(“Intermediate scrutiny is appropriate if the regulation at\nissue does not implicate the core Second Amendment right or\ndoes not place a substantial burden on that right.”); Chovan,\n735 F.3d at 1138.\n\n 2. Application of intermediate scrutiny\n\n For a challenged statute to survive intermediate scrutiny,\nit must have (1) a “significant, substantial, or important”\ngovernment objective; and (2) a reasonable fit between that\nobjective and the conduct regulated. Chovan, 735 F.3d at\n1139. A statute need not utilize “the least restrictive means of\nachieving its interest” in order to withstand intermediate\nscrutiny. Fyock, 779 F.3d at 1000. Instead, the statute simply\nneeds to “promote[] a ‘substantial government interest that\nwould be achieved less effectively absent the regulation.’” Id.\n(quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th\nCir. 1998)).\n\n The government argues that it has important “interests in\ncrime control and public safety.” We agree. “The\n[government] has the important government interest of\nensuring the safety of both the public and its police officers.”\nMahoney, 871 F.3d at 882 (citing United States v. Salerno,\n481 U.S. 739, 748 (1987); Jackson, 746 F.3d at 965); see also\nBinderup, 836 F.3d at 390 (“The stated purpose of the 1968\nrevision was to curb crime by keeping firearms out of the\nhands of those not legally entitled to possess them because of\nage, criminal background, or incompetency.” (Fuentes, J.,\nconcurring in part and dissenting in part) (internal citations\n\f20 UNITED STATES V. TORRES\n\nomitted)); Meza-Rodriguez, 798 F.3d at 673 (“Congress’s\nobjective in passing § 922(g) was ‘to keep guns out of the\nhands of presumptively risky people’ and to ‘suppress[]\narmed violence.’” (alteration in original) (quoting United\nStates v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010))).\nThese government interests are particularly applicable to\nthose subject to removal. “[T]hose who show a willingness to\ndefy our law are . . . a group that ought not be armed when\nauthorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If\narmed, unlawful aliens could pose a threat to immigration\nofficers or other law enforcement who attempt to apprehend\nand remove them.\n\n Further,“[unlawful aliens] often live ‘largely outside the\nformal system of registration, employment, and identification,\n[and] are harder to trace and more likely to assume a false\nidentity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting\nHuitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on\nthe possession of firearms by [unlawful aliens] is\nsubstantially related to the statute’s general objectives\nbecause such persons are able purposefully to evade detection\nby law enforcement.” Id.\n\n Finally, “the government has a[] strong interest in\npreventing people who already have disrespected the law\n(including, in addition to aliens unlawfully in the country,\nfelons, § 922(g)(1), fugitives, § 922(g)(2), and those\nconvicted of misdemeanor crimes of domestic violence,\n§ 922(g)(9)) from possessing guns.” Id. Section 922(g)(5) and\nother concurrent additions to § 922(g) “reflect[] Congress’s\njudgment that persons within these categories ‘may not be\ntrusted to possess a firearm without becoming a threat to\nsociety.’” Binderup, 836 F.3d at 390 & n.98 (Fuentes, J.,\nconcurring in part and dissenting in part) (quoting\n\f UNITED STATES V. TORRES 21\n\nScarborough v. United States, 431 U.S. 563, 572 (1977)).\n“[T]hese restrictions . . . disarm groups whose members\nCongress believes are unable or unwilling to conduct\nthemselves in conformity with the responsibilities of\ncitizenship.” Id. at 390–91.\n\n In sum, the government’s interests in controlling crime\nand ensuring public safety are promoted by keeping firearms\nout of the hands of unlawful aliens—who are subject to\nremoval, are difficult to monitor due to an inherent incentive\nto falsify information and evade law enforcement, and have\nalready shown they are unable or unwilling to conform their\nconduct to the laws of this country. These important\ngovernment interests “would be achieved less effectively”\nwere it not for § 922(g)(5). Fyock, 779 F.3d at 1000.6\nAccordingly, § 922(g)(5) survives intermediate scrutiny.\n\n IV. CONCLUSION\n\n The present state of the law leaves us unable to conclude\nwith certainty whether aliens unlawfully present in the United\nStates are part of “the people” to whom Second Amendment\nprotections extend. Nonetheless, assuming that unlawful\naliens do hold some degree of Second Amendment rights,\n\n\n\n\n 6\n Although a prohibition applying to all unlawful aliens may be over-\ninclusive, a statute need not utilize “the least restrictive means of\nachieving its interest” in order to withstand intermediate scrutiny. Fyock,\n779 F.3d at 1000; see also Huitron-Guizar, 678 F.3d at 1170 (recognizing\nthat § 922(g)(1)’s prohibition on firearm possession by all those convicted\nof felonies is a valid restriction, despite the reality that “[t]he class of\nconvicted felons, too, includes non-violent offenders”).\n\f22 UNITED STATES V. TORRES\n\nthose rights are not unlimited, and the restriction in\n§ 922(g)(5) is a valid exercise of Congress’s authority.7\n\n AFFIRMED.\n\n\n\n\n 7\n This conclusion also necessarily disposes of Torres’s derivative\nequal protection and due process claims. Teixeira v. Cty. of Alameda, 822\nF.3d 1047, 1052 (9th Cir.), reh’g en banc granted, 854 F.3d 1046 (9th Cir.\n2016); see also Portillo-Munoz, 643 F.3d at 442 n.4 (explaining that,\nbecause the statute at issue (§ 922(g)(5)) was a federal law to which the\nBill of Rights directly applied (without incorporation), the alien could\npursue the right only under the Second Amendment and could not “look\nto the due process clause as an additional source of protection for a right\nto keep and bear arms” (citing Graham v. Connor, 490 U.S. 386, 394–95\n(1989))).\n[END_CASE]", "role": "user" } ]
4,580,004		United States v. Lamar Johnson	2019-01-09	17-10252	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "WALLACE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-10252\n Plaintiff-Appellee,\n D.C. No.\n v. 3:16-cr-00251-WHA-1\n\nLAMAR JOHNSON,\n Defendant-Appellant. OPINION\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted September 11, 2018\n San Francisco, California\n\n Filed January 9, 2019\n\n Before: J. Clifford Wallace, Johnnie B. Rawlinson, and\n Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Wallace;\n Concurrence by Judge Watford\n\n2 UNITED STATES V. JOHNSON\n\n SUMMARY \n\n\n Criminal Law\n\n The panel affirmed a conviction and sentence for\nmultiple crimes in a case in which the district court denied\nthe defendant’s motion to suppress evidence recovered from\nthe warrantless searches of his person and car and the\nwarrant search of his house.\n\n The panel held that the search of the defendant’s person\nwas constitutional. The panel addressed whether two well-\nestablished principles—(1) that a search incident to a lawful\narrest does not necessarily need to follow the arrest to\ncomport with the Fourth Amendment and (2) that an\nofficer’s subjective reasons for making the arrest need not be\nthe criminal offense as to which the known facts provide\nprobable cause—may coincide without violating the Fourth\nAmendment. The panel explained that the justifications for\nthe search incident to lawful arrest exception do not lose any\nof their force in the context of a search performed by an\nofficer who has probable cause to arrest and shortly\nthereafter does arrest; and that so long as the search was\nincident to and preceding a lawful arrest—which is to say\nthat probable cause to arrest existed and the search and arrest\nare roughly contemporaneous—the arresting officer’s\nsubjective crime of arrest need not have been the crime for\nwhich probable cause existed. The panel held that Knowles\nv. Iowa, 525 U.S. 113 (1998), does not prevent a search\nincident to a lawful arrest from occurring before the arrest\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n UNITED STATES V. JOHNSON 3\n\nitself, even if the crime of arrest is different from the crime\nfor which probable cause existed. As for the defendant’s\nargument that this standard invites pretextual and\ndiscriminatory searches, the panel did not think that this case\nis materially different from cases where the search precedes\nthe arrest and the arresting officer’s subjective crime of\narrest is the same as the crime for which probable cause\nexisted. The panel rejected the defendant’s argument that,\neven applying this standard, the search of his person was\nunconstitutional because the officer did not have probable\ncause to arrest him. The panel wrote that the smell of fresh\nand burnt marijuana in the defendant’s car, along with plastic\nbaggies in the glove compartment, and the defendant’s\nunusual search of the glove compartment, indicated a fair\nprobability that the defendant had committed, or was about\nto commit, the offense of marijuana transportation.\n\n The panel held that the search of the defendant’s vehicle\nwas justified under the automobile exception to the warrant\nrequirement because when the officer approached the car, he\nimmediately smelled a combination of burnt and fresh\nmarijuana.\n\n The panel rejected the defendant’s challenges to the\nvalidity of the magistrate’s warrant to search his house. The\npanel held that an officer’s affidavit provided the substantial\nbasis for the magistrate to determine that probable cause\nexisted, that the confidential informant’s reliability is largely\nbeside the point, and that any omission from the affidavit\nwas immaterial.\n\n The panel rejected the defendant’s argument that the\ndistrict court erred in increasing his offense level under\nU.S.S.G. § 3B1.5 for using body armor during the\ncommission of the offense because “use” does not mean\n\n4 UNITED STATES V. JOHNSON\n\nsimply wearing body armor. The panel wrote that there is\nno reasonable way to construe the guidelines commentary\nthat would exclude wearing body armor from the definition\nof “use.” The panel concluded that the district court did not\nabuse its discretion by determining that the enhancement\nshould apply to the defendant.\n\n Concurring, Judge Watford joined the court’s opinion\nbecause it faithfully applies the rule adopted in United States\nv. Smith, 389 F.3d 944 (9th Cir. 2004) (per curiam), which\nheld that a warrantless search that precedes an arrest may\nnonetheless fall within the search-incident-to-arrest\nexception if “the search is conducted roughly\ncontemporaneously with the arrest” and probable cause to\narrest existed at the time of the search. Observing that many\ncourts have adopted the rule, but some have rejected it in\nfavor of a more circumscribed approach, Judge Watford\nwrote that Smith falls on the wrong side of this divide and\nshould be overruled.\n\n\n COUNSEL\n\nRobin Packel (argued), Research and Writing Attorney;\nGabriela Bischof, Assistant Federal Public Defender; Steven\nG. Kalar, Federal Public Defender; Office of the Federal\nPublic Offender, San Francisco, California; for Defendant-\nAppellant.\n\nPhilip Kopczynski (argued), Assistant United States\nAttorney; J. Douglas Wilson, Chief, Appellate Division;\nAlex G. Tse, Acting United States Attorney; United States\nAttorney’s Office, San Francisco, California; for Plaintiff-\nAppellee.\n\n UNITED STATES V. JOHNSON 5\n\n OPINION\n\nWALLACE, Circuit Judge:\n\n Lamar Johnson was stopped while driving and subjected\nto a warrantless search of his person and car. One year later,\npolice conducted a warrant search of his home. The fruits of\nthese searches led to Johnson’s indictment and conviction\nfor multiple crimes. Johnson appeals, challenging his\nconviction and sentence. We have jurisdiction under 28\nU.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.\n\n I.\n\n On August 7, 2015, Lamar Johnson was stopped while\ndriving by Sergeant Clint Simmont of the East Palo Alto\nPolice Department. As Simmont spoke with Johnson, he\nsmelled a combination of burnt and fresh marijuana, which\nhe recognized through his work patrolling East Palo Alto and\non the San Mateo County Narcotics Task Force. Simmont\nasked Johnson for his registration and proof of insurance, to\nwhich Johnson responded that he was borrowing the car and\ndid not have registration or insurance information. Simmont\nasked if Johnson was sure, and Johnson opened the glove\nbox as if to check. Simmont observed empty plastic bags and\npill bottles in the glove box and noticed that Johnson “moved\nhis hand around on the few items that were in there, but he\ndidn’t actually manipulate any items.” This manner was\n“inconsistent with the way someone would genuinely search\nfor paperwork.” Simmont then learned from a police\ndispatch agent that Johnson had been arrested for parole\nviolations, which indicated to Simmont that Johnson had\nbeen convicted of a felony.\n\n Simmont asked Johnson to step out of the vehicle and\nsearched his person. Simmont discovered that Johnson was\n\n6 UNITED STATES V. JOHNSON\n\nwearing a bulletproof vest and arrested him for being a felon\nin possession of body armor. After backup police units\narrived, Simmont and the other officers searched Johnson’s\ncar and discovered a loaded handgun, a pill bottle containing\nacetaminophen/hydrocodone pills, plastic bags, scales, and\nconcentrated cannabis. Johnson was transported to a police\nstation, where a second search of his person revealed\nadditional controlled substances.\n\n The following year, a separate investigation in San\nMateo County linked Johnson to controlled substance\ndistribution. On March 16, 2016, a judge in San Mateo\nSuperior Court issued a warrant to search Johnson, a vehicle\nallegedly belonging to him, and a residence in east Palo Alto\nallegedly belonging to him. Detective Christopher Sample\nsubscribed and swore to an affidavit in support of the\nwarrant.\n\n According to his affidavit, Sample met with a\nconfidential informant (CI) who purportedly could call a\nman named “Lamar” at a specific phone number and arrange\na sale of cocaine base. The CI called the number and a male\nvoice answered the phone and gave a location to meet. Police\nobserved the CI meet Johnson at that location and exchange\nitems. Sample then tested the substance the CI received from\nJohnson and identified it as cocaine. Sample followed\nJohnson from the exchange and stopped him in front of a\nhouse for a minor traffic violation. Johnson’s driver license\nstated he lived at the house where they had stopped, and\nJohnson told Sample that it was his house. Sample then\nobserved Johnson entering the house before he drove away.\n\n Sample then arranged a second buy through the same CI.\nAgain, the CI called the phone number, the man provided a\nlocation to meet, and the CI exchanged items with Johnson\nafter they met at that location. Sample tested the substance\n\n UNITED STATES V. JOHNSON 7\n\nthe CI received from Johnson and it again tested positive as\ncocaine. Again, police followed Johnson and observed him\nreturn to the same home. The first buy occurred within the\n20 days preceding the affidavit, and the second buy within\n10 days.\n\n Sample’s affidavit also provided information about his\ntraining and experience. Sample averred that drug traffickers\nwho sold cocaine base often purchased it in bulk quantities\nand stored it in their cars and homes. Based on the factual\ninformation recited above and Sample’s description of his\ntraining and experience, the superior court issued a search\nwarrant. The search of Johnson’s home recovered a firearm,\nammunition, scales, plastic bags, pills in bottles, and cocaine\nbase.\n\n Johnson was indicted on nine counts of drug and firearm\noffenses. Before trial, Johnson moved to suppress all\nevidence recovered from the warrantless search of his person\nand car and the warrant search of his house. The district court\ndenied the motion in two separate orders. Johnson then\nstipulated to certain facts and the district court held a bench\ntrial. The government dismissed two counts and the district\ncourt convicted Johnson on the remaining seven. At\nsentencing, the district court increased Johnson’s offense\nlevel by four levels because he had used body armor during\nthe commission of a drug trafficking crime.\n\n Johnson appeals, arguing that the district court erred in\ndenying his motion to suppress and by applying the body\narmor enhancement to his sentence.\n\n II.\n\n “We review de novo the district court’s denial of a\nmotion to suppress. We review the district court’s\n\n8 UNITED STATES V. JOHNSON\n\nunderlying factual findings for clear error.” United States v.\nCamou, 773 F.3d 932, 937 (9th Cir. 2014) (citations\nomitted).\n\n “We review a district court’s construction and\ninterpretation of the Guidelines de novo and its application\nof the Guidelines to the facts for abuse of discretion.” United\nStates v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017) (en\nbanc) (alteration in original removed) (quoting United States\nv. Popov, 742 F.3d 911, 914 (9th Cir. 2014)).\n\n III.\n\n Johnson argues that the warrantless search of his person,\nthe warrantless search of his car, and the warrant search of\nhis home all violated the Fourth Amendment. We address\neach argument in turn.\n\n A.\n\n The search incident to a lawful arrest exception to the\nwarrant requirement allows a police officer to search an\narrestee’s person and the area within the arrestee’s\nimmediate control. Arizona v. Gant, 556 U.S. 332, 339\n(2009). It is well-established in this circuit that a search,\nincident to a lawful arrest, does not necessarily need to\nfollow the arrest to comport with the Fourth Amendment.\nUnited States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004)\n(citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)).\nInstead, probable cause to arrest must exist at the time of the\nsearch, and the arrest must follow “during a continuous\nsequence of events.” Id. If these conditions are satisfied, the\nfact that the arrest occurred shortly after the search does not\naffect the search’s legality.\n\n UNITED STATES V. JOHNSON 9\n\n It is also well-established that the mindset of an arresting\nofficer is usually irrelevant to a seizure’s legality. See\nDevenpeck v. Alford, 543 U.S. 146, 153 (2004); Arkansas v.\nSullivan, 532 U.S. 769, 771 (2001) (per curiam); Atwater v.\nCity of Lago Vista, 532 U.S. 318, 354 (2001); Whren v.\nUnited States, 517 U.S. 806, 813 (1996). Instead, the\nofficer’s state of mind matters only to the extent that\nprobable cause must be based on “the facts known to the\narresting officer at the time of the arrest.” Devenpeck, 543\nU.S. at 152. Thus, when the officer’s known facts provide\nprobable cause to arrest for an offense, the officer’s\n“subjective reason for making the arrest need not be the\ncriminal offense as to which the known facts provide\nprobable cause.” Id. at 153.\n\n The question presented in this case is whether these two\nwell-established principles may coincide without violating\nthe Fourth Amendment. Johnson contends that to do so\nwould create a “search incident to probable cause” rule,\nallowing officers to search a person whenever probable\ncause to arrest exists. Johnson argues that the existence of\nsuch a rule will cause widespread fishing expeditions that are\npre-textual and discriminatory.\n\n We conclude that the search of Johnson’s person was\nconstitutional. The search incident to a lawful arrest\nexception is “based upon the need to disarm and to discover\nevidence,” but it “does not depend on what a court may later\ndecide was the probability in a particular arrest situation that\nweapons or evidence would in fact be found upon the person\nof the suspect.” United States v. Robinson, 414 U.S. 218, 235\n(1973). Thus, we do not balance Johnson’s interests in not\nbeing searched against Sergeant Simmont’s interest in\nsearching him. Instead we evaluate whether, as a general\nmatter, the justifications for the search incident to lawful\n\n10 UNITED STATES V. JOHNSON\n\narrest exception retain force in the context of a search\nperformed by an officer who has probable cause to arrest and\nshortly thereafter does arrest. See Knowles v. Iowa, 525 U.S.\n113, 117–19 (1998) (evaluating whether the historical\njustifications for searches incident to arrest applied to decide\nwhether to recognize a “search incident to citation”\nexception).\n\n The justifications for the exception do not lose any of\ntheir force in this context. As explained in Robinson, and\nreaffirmed in Knowles, when an officer begins an encounter\nwith another person, and probable cause to arrest exists,\ndanger to the police officer “flows from the fact of the arrest,\nand its attendant proximity, stress, and uncertainty, and not\nfrom the grounds for arrest.” Robinson, 414 U.S. at 234 n.5\n(emphasis added); see also Knowles, 525 U.S. at 117\n(quoting same). As in other contexts then, the precise crime\nfor which an officer has probable cause is irrelevant. Cf.\nDevenpeck, 543 U.S. at 153 (“[An officer’s] subjective\nreason for making the arrest need not be the criminal offense\nas to which the known facts provide probable cause”). So\nlong as the search was incident to and preceding a lawful\narrest—which is to say that probable cause to arrest existed\nand the search and arrest are roughly contemporaneous,\nSmith, 389 F.3d at 951—the arresting officer’s subjective\ncrime of arrest need not have been the crime for which\nprobable cause existed.\n\n Johnson argues that this result is inconsistent with\nKnowles, in which the Supreme Court held that warrantless\nsearches preceding an arrest but following a citation are\nunconstitutional. See 525 U.S. at 118. Knowles is\ndistinguishable. In that case, the issuance of the traffic\ncitation for speeding resolved the encounter’s danger, and\n“the possibility that an officer would stumble onto evidence\n\n UNITED STATES V. JOHNSON 11\n\nwholly unrelated to the speeding offense” was too remote to\njustify the intrusion. Id. In cases such as the one before us,\nthe danger attendant to the custodial arrest remains until the\nofficer decides to arrest, cite, or warn, and probable cause\nprovides a basis for the officer to search for evidence of that\ncrime. We therefore join our sister circuits in holding that\nKnowles does not prevent a search incident to a lawful arrest\nfrom occurring before the arrest itself, even if the crime of\narrest is different from the crime for which probable cause\nexisted. See United States v. Diaz, 854 F.3d 197, 206–07 (2d\nCir. 2017); United States v. Coleman, 458 F.3d 453, 458 (6th\nCir. 2006); United States v. Sanchez, 555 F.3d 910, 921–22\n(10th Cir. 2009).\n\n As for Johnson’s argument that this standard invites\npretextual and discriminatory searches, we do not think that\nthis case is meaningfully different from cases where the\nsearch precedes the arrest and the arresting officer’s\nsubjective crime of arrest is the same as the crime for which\nprobable cause existed. The safeguards of probable cause\nand an actual custodial arrest, here as there, are what protect\nindividuals’ Fourth Amendment rights. To the extent\nJohnson argues that those safeguards are insufficient, his\nargument is properly directed at the search-preceding-arrest\ndoctrine more generally, and this panel has no power to\noverrule circuit precedent, let alone that of the Supreme\nCourt. See Rawlings, 448 U.S. at 111 (“Where the formal\narrest followed quickly on the heels of the challenged search\nof petitioner’s person, we do not believe it particularly\nimportant that the search preceded the arrest rather than vice\nversa”).\n\n Johnson’s alternative argument is that, even applying\nthis standard, the search of his person was unconstitutional\nbecause Simmont did not have probable cause to arrest. We\n\n12 UNITED STATES V. JOHNSON\n\ndisagree. “‘[P]robable cause’ to justify an arrest means facts\nand circumstances within the officer’s knowledge that are\nsufficient to warrant a prudent person, or one of reasonable\ncaution, in believing, in the circumstances shown, that the\nsuspect has committed, is committing, or is about to commit\nan offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).\nThis standard is met when there is a “fair probability” that a\ncrime has been committed. United States v. Smith, 790 F.2d\n789, 792 (9th Cir. 1986). The smell of fresh and burnt\nmarijuana in Johnson’s car, along with the plastic baggies in\nthe glove compartment, and Johnson’s unusual search of the\nglove compartment, indicated a “fair probability” that\nJohnson had committed, was committing, or was about to\ncommit the offense of marijuana transportation. See CAL.\nHEALTH & SAFETY CODE § 11360. The search prior to\nJohnson’s arrest was therefore supported by probable cause.\n\n B.\n\n When an arrestee is the recent occupant of a vehicle, the\narresting officer may search that vehicle if the arrestee is\nunsecured and within reaching distance of the passenger\ncompartment, or if it is “reasonable to believe evidence\nrelevant to the crime of arrest might be found in the vehicle.”\nGant, 556 U.S. at 343 (quoting Thornton v. United States,\n541 U.S. 615, 632 (2004) (Scalia, J., concurring in the\njudgment)). Additionally, under the automobile exception, a\npolice officer may conduct a warrantless search of a vehicle\nif there is probable cause to believe the vehicle contains\nevidence of a crime. United States v. Faagai, 869 F.3d 1145,\n1150 (9th Cir. 2017). The district court relied on both the\nsearch incident-to-lawful-arrest exception and the\nautomobile exception to uphold the warrantless search of\nJohnson’s car.\n\n UNITED STATES V. JOHNSON 13\n\n We conclude that the search was justified under the\nautomobile exception, and therefore do not reach whether\nthe search was also justified as incident to Johnson’s arrest.\nWhen Simmont approached Johnson’s car, he immediately\nsmelled a combination of burnt and fresh marijuana. This\nprovided probable cause for Simmont to search the vehicle.\nSee United States v. Barron, 472 F.2d 1215, 1217 (9th Cir.\n1973) (“Further, the fact that an agent familiar with the odor\nof marijuana, smelled such an odor emanating from the\nautomobile when he jumped in to stop it, alone was\nsufficient to constitute probable cause for a subsequent\nsearch for marijuana”). Johnson argues that the search of his\ncar was nonetheless illegal because it was the fruit of the\nillegal search of his person. But, as we have already\nexplained, that search comported with the Fourth\nAmendment. There being no poisonous tree, the search of\nJohnson’s car cannot have been the fruit of an illegal search.\n\n C.\n\n When reviewing the validity of a search warrant issued\nby a magistrate, we give “great deference” to the\nmagistrate’s probable cause determination, and will uphold\nthe warrant’s validity if the magistrate was supplied “with a\nsubstantial basis for determining the existence of probable\ncause.” United States v. Leon, 468 U.S. 897, 914–15 (1984)\n(first quoting Spinelli v. United States, 393 U.S. 410, 419\n(1969), then quoting Illinois v. Gates, 462 U.S. 213, 239\n(1983)). “In borderline cases, preference will be accorded to\nwarrants and to the decision of the magistrate issuing it.”\nUnited States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990)\n(quoting United States v. Martinez, 588 F.2d 1227, 1234 (9th\nCir. 1987)).\n\n Johnson attacks the warrant on three grounds. First, he\nargues that Sample’s affidavit did not establish probable\n\n14 UNITED STATES V. JOHNSON\n\ncause that contraband would be found in his home. Second,\nhe argues that the affidavit did not establish the CI’s\nreliability. Third, he argues that the affidavit omitted the\nquantity of cocaine involved in the controlled buys,\nmisleading the magistrate into issuing the warrant. We\ndisagree with these arguments.\n\n As to probable cause, this case is controlled by United\nStates v. Terry. In that case, we held that an officer’s “first\nhand knowledge” of the defendant’s possession of controlled\nsubstances, combined with the officer’s “experience with\nother drug dealers,” provided the “substantial basis” for the\nmagistrate to determine that probable cause existed. Id. at\n276. The same holds true here. Sample averred that he had\ntwice observed Johnson distribute cocaine in the 20 days\npreceding the warrant, including once within 10 days. He\nalso averred that, after the buys, he observed Johnson return\nto the address listed on the warrant application, which\nJohnson entered and told police was “his house.” These\nfacts—combined with Sample’s description of how drug\ntraffickers buy cocaine in bulk, sell in small amounts, and\nuse their homes as store caches for the remainder—provided\na substantial basis for the San Mateo Superior Court to issue\nthe warrant. See id. at 275–76.\n\n As to the CI’s reliability, this argument is largely beside\nthe point. As we have just explained, the basis for probable\ncause in the affidavit was Sample’s “first hand knowledge”\nof Johnson’s drug dealing and his “experience with other\ndrug dealers” in how and where a confirmed drug dealer\nmight store contraband. See id. at 276. The warrant was not\nissued, unlike in other cases where informant credibility is\ncrucial, based on the CI’s tip that drugs would be found in\nJohnson’s home, but on Sample’s observations of the\ncontrolled buys and Johnson’s actions thereafter. The CI’s\n\n UNITED STATES V. JOHNSON 15\n\nonly role in establishing probable cause was therefore to\neffectuate the controlled buys, and the CI did establish\nreliability in this regard because police observed the buys,\ncorroborating the CI’s information.\n\n Finally, as to the omission of the size of the cocaine rocks\nsold, we conclude that any omission was immaterial to the\nmagistrate’s decision. A defendant challenging omissions\nfrom a warrant must make a substantial showing that “the\naffiant intentionally or recklessly omitted facts required to\nprevent technically true statements in the affidavit from\nbeing misleading.” United States v. Stanert, 762 F.2d 775,\n781 (9th Cir. 1985). Johnson has not met that standard here.\nAssuming arguendo that Sample’s omission of the precise\nsizes of the cocaine rocks was intentional or reckless, it was\nclear from the affidavit that the controlled buys involved\nsmall amounts of cocaine. Therefore, inclusion of those facts\nwould not have changed the meaning of any statement in the\naffidavit.\n\n IV.\n\n U.S.S.G. § 3B1.5 provides: “If … the defendant was\nconvicted of a drug trafficking crime or a crime of violence;\nand … the defendant used body armor during the\ncommission of the offense, in preparation for the offense, or\nin an attempt to avoid apprehension for the offense, increase\nby 4 levels.” U.S.S.G. § 3B1.5(1), (2)(B). The district court\nincreased Johnson’s offense level by four levels under this\nprovision because Johnson was wearing a bulletproof vest\nduring the 2015 traffic stop. Johnson argues that the district\ncourt erred in doing so because “use” does not mean simply\nwearing body armor.\n\n First interpreting the meaning of the guidelines de novo,\nwe reject Johnson’s construction argument. The\n\n16 UNITED STATES V. JOHNSON\n\ncommentary to the guidelines states that “‘[u]se’ means (A)\nactive employment in a manner to protect the person from\ngunfire; or (B) use as a means of bartering. ‘Use’ does not\nmean mere possession (e.g., ‘use’ does not mean that the\nbody armor was found in the trunk of the car but not used\nactively as protection).” Id. § 3B1.5, cmt. (n.1). There is no\nreasonable way to construe this language that would exclude\nwearing body armor from the definition of “use.” Wearing\nbody armor is the precise means by which a person\n“employ[s] [the body armor] in a manner to protect the\nperson from gunfire.” Accordingly, Johnson “used” the body\narmor within the meaning of the guidelines simply by\nwearing it. Accord United States v. Juarez, 866 F.3d 622,\n633 (5th Cir. 2017) (stating “this Court and others have only\napplied the body-armor enhancement where the defendant\ncommitted a crime wearing body armor” and collecting\ncases (emphasis in original)); United States v. Barrett, 552\nF.3d 724, 727–28 (8th Cir. 2009) (upholding enhancement\nwhere defendant wore body armor at party).\n\n Next reviewing the district court’s application of the\nguidelines to the facts of this case, there was no abuse of\ndiscretion. Johnson argues that he had an alternative\nexplanation for why he wore the body armor. But Johnson\nalso had cocaine base, heroin, marijuana, and oxycodone on\nhis person while he wore the body armor, as well as a loaded\nhandgun, hydrocodone, plastic bags, scales, and\nconcentrated cannabis in his car. On these facts, the district\ncourt did not abuse its discretion by determining that the\nenhancement should apply because Johnson wore body\narmor during a drug trafficking offense.\n\n AFFIRMED.\n\n UNITED STATES V. JOHNSON 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357257/", "author_raw": "WALLACE, Circuit Judge:"}, {"author": "WATFORD, Circuit Judge, concurring", "type": "concurrence", "text": "WATFORD, Circuit Judge, concurring:\n\n I join the court’s opinion because it faithfully applies the\nrule we adopted in United States v. Smith, 389 F.3d 944 (9th\nCir. 2004) (per curiam). There, we held that a warrantless\nsearch that precedes an arrest may nonetheless fall within the\nsearch-incident-to-arrest exception if “the search is\nconducted roughly contemporaneously with the arrest” and\nprobable cause to arrest existed at the time of the search. Id.\nat 952. This rule has not been universally embraced. Many\ncourts have adopted it, but some have rejected it in favor of\na more circumscribed approach. See Joshua Deahl,\nDebunking Pre-Arrest Incident Searches, 106 Cal. L. Rev.\n1061, 1086–87 (2018) (cataloguing the split in authority). In\nmy view, Smith falls on the wrong side of this divide and\nshould be overruled.\n\n Generally speaking, the police must obtain a warrant\nbefore conducting a search of the “persons, houses, papers,\nand effects” protected by the Fourth Amendment. The\nSupreme Court has recognized exceptions to that\nrequirement when circumstances justifying the need to take\nimmediate action are present, such that obtaining a warrant\nwould be impracticable. In the case of searches incident to\narrest, the justification for dispensing with the warrant\nrequirement stems from “the fact of custodial arrest.” United\nStates v. Robinson, 414 U.S. 218, 236 (1973). An arrest\ntriggers two important government interests that create the\nneed for an immediate search: protecting officer safety and\npreventing the destruction of evidence. Id. at 235. The\nCourt described those interests in Chimel v. California, 395\nU.S. 752 (1969):\n\n When an arrest is made, it is reasonable for\n the arresting officer to search the person\n arrested in order to remove any weapons that\n\n18 UNITED STATES V. JOHNSON\n\n the latter might seek to use in order to resist\n arrest or effect his escape. Otherwise, the\n officer’s safety might well be endangered,\n and the arrest itself frustrated. In addition, it\n is entirely reasonable for the arresting officer\n to search for and seize any evidence on the\n arrestee’s person in order to prevent its\n concealment or destruction.\n\nId. at 762–63. A lawful arrest also results in a reduction in\nthe arrestee’s Fourth Amendment privacy interests. Riley v.\nCalifornia, 134 S. Ct. 2473, 2488 (2014). Together, the need\nto conduct an immediate search and the suspect’s diminished\nexpectation of privacy render warrantless searches incident\nto a lawful arrest categorically reasonable under the Fourth\nAmendment. Robinson, 414 U.S. at 234–35.\n\n As the doctrinal underpinnings of the search-incident-to-\narrest exception suggest, the authority to conduct such a\nsearch does not arise until an arrest is actually made. If\nconfirmation of that fact were needed, though, the Supreme\nCourt’s decisions in Cupp v. Murphy, 412 U.S. 291 (1973),\nand Knowles v. Iowa, 525 U.S. 113 (1998), provide it.\n\n In Cupp, the suspect in a murder case came to the police\nstation voluntarily. Although the police had probable cause\nto arrest him, they did not place him under arrest. 414 U.S.\nat 293–94. Officers instead temporarily detained the suspect\njust long enough to allow them to take fingernail scrapings,\nwhich he was attempting to destroy in their presence. Given\nthese exigent circumstances, the Court held that a search of\nthis limited scope was reasonable. Id. at 295–96. But the\nCourt made clear that, because the suspect had not been\narrested, a more intrusive search of the type permitted\nincident to arrest likely would have been prohibited. The\n\n UNITED STATES V. JOHNSON 19\n\ngovernment interests that justify such a search, the Court\nexplained, were not fully implicated by a seizure that falls\nshort of an arrest:\n\n Where there is no formal arrest, as in the case\n before us, a person might well be less hostile\n to the police and less likely to take\n conspicuous, immediate steps to destroy\n incriminating evidence on his person. Since\n he knows he is going to be released, he might\n be likely instead to be concerned with\n diverting attention away from himself.\n Accordingly, we do not hold that a full\n [search incident to arrest] would have been\n justified in this case without a formal arrest\n and without a warrant.\n\nId. at 296.\n\n In Knowles, the officer had probable cause to arrest the\ndefendant for speeding but chose to issue a citation instead.\nThe officer nonetheless conducted a warrantless search of\nthe defendant’s car, which turned up illegal drugs. The\nofficer then arrested the defendant on drug-related charges.\n525 U.S. at 114. The state courts upheld the validity of the\nsearch, “reasoning that so long as the arresting officer had\nprobable cause to make a custodial arrest, there need not in\nfact have been a custodial arrest.” Id. at 115–16. The\nSupreme Court unanimously rejected that reasoning. The\nCourt held that issuance of a citation does not trigger either\nof the government interests that justify a warrantless search\nincident to arrest. The threat to officer safety is not as\npronounced when an officer issues a citation, in part because\nthe officer will not have the extended exposure to the suspect\nthat follows taking him into custody and transporting him to\n\n20 UNITED STATES V. JOHNSON\n\na police facility for booking. Id. at 117. Nor does the need\nto preserve evidence arise, for once the officer issues the\ntraffic citation “all the evidence necessary to prosecute that\noffense” will already have been obtained. Id. at 118. The\nCourt therefore refused to extend the search-incident-to-\narrest exception “to a situation where the concern for officer\nsafety is not present to the same extent and the concern for\nthe destruction or loss of evidence is not present at all.” Id.\nat 119. 1\n\n I do not think our decision in Smith is consistent with\nthese precedents. We have allowed warrantless searches to\nbe conducted before an arrest is made, provided that the\nofficer has probable cause to arrest “independent of the fruits\nof the search” and the arrest occurs shortly after the search\nis conducted. 389 F.3d at 951. Under that rule, however,\nthe search in Knowles would have been permissible, because\nthe officer had probable cause to arrest the defendant for\nspeeding and he arrested the defendant shortly after the\nsearch uncovered illegal drugs. It’s true that in Knowles the\nofficer had already issued a citation by the time the search\ntook place, which some courts have interpreted to mean that\na search incident to arrest is permitted so long as the officer\nhas not yet decided whether to arrest or cite the suspect. See,\ne.g., United States v. Diaz, 854 F.3d 197, 206–08 (2d Cir.\n2017); United States v. Pratt, 355 F.3d 1119, 1124–25 n.4\n(8th Cir. 2004). What those courts have overlooked is that\nthe critical fact in Knowles was not the officer’s issuance of\nthe citation, but rather the absence of an arrest. That absence\nis key because, as discussed above, the exigency that\n\n 1\n Officers are not without recourse to protect themselves when\ninteracting with suspects prior to arrest. An officer may still perform a\nprotective “patdown” if the officer has reasonable suspicion to believe\nthat the suspect may be armed and dangerous. Knowles, 525 U.S. at 118\n(citing Terry v. Ohio, 392 U.S. 1 (1968)).\n\n UNITED STATES V. JOHNSON 21\n\njustifies a warrantless search in this context arises from the\nfact of arrest, Robinson, 414 U.S. at 236, not from the\nexistence of probable cause to arrest.\n\n The rule we adopted in Smith is doctrinally unsound for\nanother reason: It makes the legality of the search dependent\nupon events that occur after the search has taken place.\nUnder our rule, the same search conducted on the basis of\nthe same showing of probable cause is valid if the officer\narrests the suspect afterward, but becomes illegal if the\nofficer subsequently decides not to make an arrest (say,\nbecause the search turns up nothing). See Menotti v. City of\nSeattle, 409 F.3d 1113, 1153 (9th Cir. 2005). That approach\nis at odds with the background principle that the\nreasonableness of a search turns on “whether the officer’s\naction was justified at its inception, and whether it was\nreasonably related in scope to the circumstances which\njustified the interference in the first place.” Terry v. Ohio,\n392 U.S. 1, 19–20 (1968). Beyond that, we should be\nskeptical of any rule that provides officers with an incentive\nto make an arrest they would not otherwise have made,\nsolely to insulate themselves from civil liability for violating\nan individual’s Fourth Amendment rights.\n\n The firmest support for the rule we adopted in Smith\ncomes from Rawlings v. Kentucky, 448 U.S. 98 (1980), but\neven that support is flimsy. The Supreme Court in Rawlings\ndid state that “[w]here the formal arrest followed quickly on\nthe heels of the challenged search of petitioner’s person, we\ndo not believe it particularly important that the search\npreceded the arrest rather than vice versa.” Id. at 111. But\nthat language cannot fairly be read as having jettisoned the\nrequirement that an arrest occur before an officer may\nconduct a search incident to arrest. At the time he was\nsearched, the defendant in Rawlings had plainly been\n\n22 UNITED STATES V. JOHNSON\n\nsubjected to a Fourth Amendment seizure amounting to an\narrest, based on probable cause that existed beforehand. See\nUnited States v. Powell, 483 F.3d 836, 846 (D.C. Cir. 2007)\n(en banc) (Rogers, J., dissenting). As I read Rawlings, the\nCourt merely held that the search was not invalidated by the\nfact that the “formal arrest” (handcuffing, etc.) occurred\nshortly after the search took place, rather than before.\n\n Moreover, interpreting Rawlings to permit a pre-arrest\nsearch, so long as an officer has probable cause to arrest,\nseems to conflict with the Court’s recent decision in\nRodriguez v. United States, 135 S. Ct. 1609 (2015). That\ncase held that a traffic stop may not be “prolonged beyond\nthe time reasonably required to complete the mission of\nissuing a ticket for the violation.” Id. at 1612 (internal\nquotation marks and alteration omitted). As part of a traffic\nstop’s mission, an officer may make traffic-code-related\ninquiries, such as checking the driver’s license and\nregistration, see id. at 1615, and may take steps to ensure\nofficer safety, such as asking the driver and any passengers\nto exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 414–\n15 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110–11\n(1977) (per curiam). But the Court has indicated that\nconducting a search of the driver’s person ordinarily falls\noutside the scope of what a routine traffic stop authorizes.\nKnowles, 525 U.S. at 117.\n\n It’s not clear how that limitation can be squared with the\nbroad reading of Rawlings we adopted in Smith. In most\ninstances, an officer conducting a valid traffic stop will have\nprobable cause to believe that the driver has committed some\ntraffic infraction, which carries with it the latent authority to\narrest even if the infraction is a minor one that could not\nresult in jail time. See Atwater v. City of Lago Vista, 532\nU.S. 318, 354 (2001). Thus, as long as the officer has not\n\n UNITED STATES V. JOHNSON 23\n\nyet issued a citation, there remains the possibility, however\nremote, that the driver could be arrested for the infraction.\nUnder our holding in Smith, an officer in these circumstances\ncould presumably conduct a search “incident” to an arrest\nfor the traffic violation, knowing that if incriminating\nevidence is found he can opt at that point to arrest the driver\nand thereby validate the search. That regime would\nauthorize full-blown investigatory searches of the driver’s\nperson (and in some instances of the vehicle’s passenger\ncompartment as well) as a normal incident of any traffic\nstop. Permitting such searches seems to me in obvious\ntension with Rodriguez’s holding.\n\n Requiring that a custodial arrest occur before an officer\nmay conduct a search incident to arrest admittedly raises\ndifficult legal issues, since it’s not always clear when an\nofficer’s interference with a suspect’s Fourth Amendment\nliberty interests ripens into an arrest. But we have a well-\ndeveloped body of Fourth Amendment case law to guide that\ninquiry, see, e.g., Florida v. Royer, 460 U.S. 491, 503 (1983)\n(plurality opinion); Dunaway v. New York, 442 U.S. 200,\n212–13 (1979), which focuses on how a reasonable person\nin the suspect’s shoes would view the nature of the intrusion,\nMichigan v. Chesternut, 486 U.S. 567, 573–74 (1988);\nOchana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003). That\nfocus makes sense in this context because the arrestee’s\nperception that he has been placed under arrest is what\ntriggers the need for an immediate search, to ensure that the\narrestee cannot use any weapons to resist or escape and\ncannot conceal or destroy any evidence on his person. The\nofficer’s subjective intent is of course irrelevant to the\nexistence of a custodial arrest, unless “that intent has been\nconveyed to the person confronted.” Chesternut, 486 U.S.\nat 575 n.7.\n\n24 UNITED STATES V. JOHNSON\n\n If it turns out that an officer conducts a search\nprematurely—i.e., before the suspect was in fact arrested for\nFourth Amendment purposes—that will not invariably result\nin suppression of any evidence discovered during the search.\nThe government can still attempt to prove, under the\ninevitable discovery doctrine, that the officer would have\narrested the suspect anyway, without regard to what was\nfound as a result of the search. See, e.g., United States v.\nCotnam, 88 F.3d 487, 495–96 (7th Cir. 1996). Suppression\nwould occur only in cases in which “but for the search there\nwould have been no arrest at all.” People v. Reid, 26 N.E.3d\n237, 239 (N.Y. 2014). Those are precisely the cases in which\nsuppression should occur in order to combat the serious\npotential for abuse that otherwise exists when officers\npossess unfettered discretion as to whom to target for\nsearches. See Deahl, supra, at 1120–22. As has been noted,\n“it is no secret that people of color are disproportionate\nvictims of this type of scrutiny.” Utah v. Strieff, 136 S. Ct.\n2056, 2070 (2016) (Sotomayor, J., dissenting). So long as\nSmith remains the law of our circuit, it will only exacerbate\nthis problem.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357257/", "author_raw": "WATFORD, Circuit Judge, concurring"}]}	J CLIFFORD WALLACE	JOHNNIE B RAWLINSON	PAUL J WATFORD	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580004/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Lamar Johnson\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-10252\n Plaintiff-Appellee,\n D.C. No.\n v. 3:16-cr-00251-WHA-1\n\nLAMAR JOHNSON,\n Defendant-Appellant. OPINION\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted September 11, 2018\n San Francisco, California\n\n Filed January 9, 2019\n\n Before: J. Clifford Wallace, Johnnie B. Rawlinson, and\n Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Wallace;\n Concurrence by Judge Watford\n\n2 UNITED STATES V. JOHNSON\n\n SUMMARY \n\n\n Criminal Law\n\n The panel affirmed a conviction and sentence for\nmultiple crimes in a case in which the district court denied\nthe defendant’s motion to suppress evidence recovered from\nthe warrantless searches of his person and car and the\nwarrant search of his house.\n\n The panel held that the search of the defendant’s person\nwas constitutional. The panel addressed whether two well-\nestablished principles—(1) that a search incident to a lawful\narrest does not necessarily need to follow the arrest to\ncomport with the Fourth Amendment and (2) that an\nofficer’s subjective reasons for making the arrest need not be\nthe criminal offense as to which the known facts provide\nprobable cause—may coincide without violating the Fourth\nAmendment. The panel explained that the justifications for\nthe search incident to lawful arrest exception do not lose any\nof their force in the context of a search performed by an\nofficer who has probable cause to arrest and shortly\nthereafter does arrest; and that so long as the search was\nincident to and preceding a lawful arrest—which is to say\nthat probable cause to arrest existed and the search and arrest\nare roughly contemporaneous—the arresting officer’s\nsubjective crime of arrest need not have been the crime for\nwhich probable cause existed. The panel held that Knowles\nv. Iowa, 525 U.S. 113 (1998), does not prevent a search\nincident to a lawful arrest from occurring before the arrest\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n UNITED STATES V. JOHNSON 3\n\nitself, even if the crime of arrest is different from the crime\nfor which probable cause existed. As for the defendant’s\nargument that this standard invites pretextual and\ndiscriminatory searches, the panel did not think that this case\nis materially different from cases where the search precedes\nthe arrest and the arresting officer’s subjective crime of\narrest is the same as the crime for which probable cause\nexisted. The panel rejected the defendant’s argument that,\neven applying this standard, the search of his person was\nunconstitutional because the officer did not have probable\ncause to arrest him. The panel wrote that the smell of fresh\nand burnt marijuana in the defendant’s car, along with plastic\nbaggies in the glove compartment, and the defendant’s\nunusual search of the glove compartment, indicated a fair\nprobability that the defendant had committed, or was about\nto commit, the offense of marijuana transportation.\n\n The panel held that the search of the defendant’s vehicle\nwas justified under the automobile exception to the warrant\nrequirement because when the officer approached the car, he\nimmediately smelled a combination of burnt and fresh\nmarijuana.\n\n The panel rejected the defendant’s challenges to the\nvalidity of the magistrate’s warrant to search his house. The\npanel held that an officer’s affidavit provided the substantial\nbasis for the magistrate to determine that probable cause\nexisted, that the confidential informant’s reliability is largely\nbeside the point, and that any omission from the affidavit\nwas immaterial.\n\n The panel rejected the defendant’s argument that the\ndistrict court erred in increasing his offense level under\nU.S.S.G. § 3B1.5 for using body armor during the\ncommission of the offense because “use” does not mean\n\n4 UNITED STATES V. JOHNSON\n\nsimply wearing body armor. The panel wrote that there is\nno reasonable way to construe the guidelines commentary\nthat would exclude wearing body armor from the definition\nof “use.” The panel concluded that the district court did not\nabuse its discretion by determining that the enhancement\nshould apply to the defendant.\n\n Concurring, Judge Watford joined the court’s opinion\nbecause it faithfully applies the rule adopted in United States\nv. Smith, 389 F.3d 944 (9th Cir. 2004) (per curiam), which\nheld that a warrantless search that precedes an arrest may\nnonetheless fall within the search-incident-to-arrest\nexception if “the search is conducted roughly\ncontemporaneously with the arrest” and probable cause to\narrest existed at the time of the search. Observing that many\ncourts have adopted the rule, but some have rejected it in\nfavor of a more circumscribed approach, Judge Watford\nwrote that Smith falls on the wrong side of this divide and\nshould be overruled.\n\n\n COUNSEL\n\nRobin Packel (argued), Research and Writing Attorney;\nGabriela Bischof, Assistant Federal Public Defender; Steven\nG. Kalar, Federal Public Defender; Office of the Federal\nPublic Offender, San Francisco, California; for Defendant-\nAppellant.\n\nPhilip Kopczynski (argued), Assistant United States\nAttorney; J. Douglas Wilson, Chief, Appellate Division;\nAlex G. Tse, Acting United States Attorney; United States\nAttorney’s Office, San Francisco, California; for Plaintiff-\nAppellee.\n\n UNITED STATES V. JOHNSON 5\n\n OPINION\n\nWALLACE, Circuit Judge:\n\n Lamar Johnson was stopped while driving and subjected\nto a warrantless search of his person and car. One year later,\npolice conducted a warrant search of his home. The fruits of\nthese searches led to Johnson’s indictment and conviction\nfor multiple crimes. Johnson appeals, challenging his\nconviction and sentence. We have jurisdiction under 28\nU.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.\n\n I.\n\n On August 7, 2015, Lamar Johnson was stopped while\ndriving by Sergeant Clint Simmont of the East Palo Alto\nPolice Department. As Simmont spoke with Johnson, he\nsmelled a combination of burnt and fresh marijuana, which\nhe recognized through his work patrolling East Palo Alto and\non the San Mateo County Narcotics Task Force. Simmont\nasked Johnson for his registration and proof of insurance, to\nwhich Johnson responded that he was borrowing the car and\ndid not have registration or insurance information. Simmont\nasked if Johnson was sure, and Johnson opened the glove\nbox as if to check. Simmont observed empty plastic bags and\npill bottles in the glove box and noticed that Johnson “moved\nhis hand around on the few items that were in there, but he\ndidn’t actually manipulate any items.” This manner was\n“inconsistent with the way someone would genuinely search\nfor paperwork.” Simmont then learned from a police\ndispatch agent that Johnson had been arrested for parole\nviolations, which indicated to Simmont that Johnson had\nbeen convicted of a felony.\n\n Simmont asked Johnson to step out of the vehicle and\nsearched his person. Simmont discovered that Johnson was\n\n6 UNITED STATES V. JOHNSON\n\nwearing a bulletproof vest and arrested him for being a felon\nin possession of body armor. After backup police units\narrived, Simmont and the other officers searched Johnson’s\ncar and discovered a loaded handgun, a pill bottle containing\nacetaminophen/hydrocodone pills, plastic bags, scales, and\nconcentrated cannabis. Johnson was transported to a police\nstation, where a second search of his person revealed\nadditional controlled substances.\n\n The following year, a separate investigation in San\nMateo County linked Johnson to controlled substance\ndistribution. On March 16, 2016, a judge in San Mateo\nSuperior Court issued a warrant to search Johnson, a vehicle\nallegedly belonging to him, and a residence in east Palo Alto\nallegedly belonging to him. Detective Christopher Sample\nsubscribed and swore to an affidavit in support of the\nwarrant.\n\n According to his affidavit, Sample met with a\nconfidential informant (CI) who purportedly could call a\nman named “Lamar” at a specific phone number and arrange\na sale of cocaine base. The CI called the number and a male\nvoice answered the phone and gave a location to meet. Police\nobserved the CI meet Johnson at that location and exchange\nitems. Sample then tested the substance the CI received from\nJohnson and identified it as cocaine. Sample followed\nJohnson from the exchange and stopped him in front of a\nhouse for a minor traffic violation. Johnson’s driver license\nstated he lived at the house where they had stopped, and\nJohnson told Sample that it was his house. Sample then\nobserved Johnson entering the house before he drove away.\n\n Sample then arranged a second buy through the same CI.\nAgain, the CI called the phone number, the man provided a\nlocation to meet, and the CI exchanged items with Johnson\nafter they met at that location. Sample tested the substance\n\n UNITED STATES V. JOHNSON 7\n\nthe CI received from Johnson and it again tested positive as\ncocaine. Again, police followed Johnson and observed him\nreturn to the same home. The first buy occurred within the\n20 days preceding the affidavit, and the second buy within\n10 days.\n\n Sample’s affidavit also provided information about his\ntraining and experience. Sample averred that drug traffickers\nwho sold cocaine base often purchased it in bulk quantities\nand stored it in their cars and homes. Based on the factual\ninformation recited above and Sample’s description of his\ntraining and experience, the superior court issued a search\nwarrant. The search of Johnson’s home recovered a firearm,\nammunition, scales, plastic bags, pills in bottles, and cocaine\nbase.\n\n Johnson was indicted on nine counts of drug and firearm\noffenses. Before trial, Johnson moved to suppress all\nevidence recovered from the warrantless search of his person\nand car and the warrant search of his house. The district court\ndenied the motion in two separate orders. Johnson then\nstipulated to certain facts and the district court held a bench\ntrial. The government dismissed two counts and the district\ncourt convicted Johnson on the remaining seven. At\nsentencing, the district court increased Johnson’s offense\nlevel by four levels because he had used body armor during\nthe commission of a drug trafficking crime.\n\n Johnson appeals, arguing that the district court erred in\ndenying his motion to suppress and by applying the body\narmor enhancement to his sentence.\n\n II.\n\n “We review de novo the district court’s denial of a\nmotion to suppress. We review the district court’s\n\n8 UNITED STATES V. JOHNSON\n\nunderlying factual findings for clear error.” United States v.\nCamou, 773 F.3d 932, 937 (9th Cir. 2014) (citations\nomitted).\n\n “We review a district court’s construction and\ninterpretation of the Guidelines de novo and its application\nof the Guidelines to the facts for abuse of discretion.” United\nStates v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017) (en\nbanc) (alteration in original removed) (quoting United States\nv. Popov, 742 F.3d 911, 914 (9th Cir. 2014)).\n\n III.\n\n Johnson argues that the warrantless search of his person,\nthe warrantless search of his car, and the warrant search of\nhis home all violated the Fourth Amendment. We address\neach argument in turn.\n\n A.\n\n The search incident to a lawful arrest exception to the\nwarrant requirement allows a police officer to search an\narrestee’s person and the area within the arrestee’s\nimmediate control. Arizona v. Gant, 556 U.S. 332, 339\n(2009). It is well-established in this circuit that a search,\nincident to a lawful arrest, does not necessarily need to\nfollow the arrest to comport with the Fourth Amendment.\nUnited States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004)\n(citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)).\nInstead, probable cause to arrest must exist at the time of the\nsearch, and the arrest must follow “during a continuous\nsequence of events.” Id. If these conditions are satisfied, the\nfact that the arrest occurred shortly after the search does not\naffect the search’s legality.\n\n UNITED STATES V. JOHNSON 9\n\n It is also well-established that the mindset of an arresting\nofficer is usually irrelevant to a seizure’s legality. See\nDevenpeck v. Alford, 543 U.S. 146, 153 (2004); Arkansas v.\nSullivan, 532 U.S. 769, 771 (2001) (per curiam); Atwater v.\nCity of Lago Vista, 532 U.S. 318, 354 (2001); Whren v.\nUnited States, 517 U.S. 806, 813 (1996). Instead, the\nofficer’s state of mind matters only to the extent that\nprobable cause must be based on “the facts known to the\narresting officer at the time of the arrest.” Devenpeck, 543\nU.S. at 152. Thus, when the officer’s known facts provide\nprobable cause to arrest for an offense, the officer’s\n“subjective reason for making the arrest need not be the\ncriminal offense as to which the known facts provide\nprobable cause.” Id. at 153.\n\n The question presented in this case is whether these two\nwell-established principles may coincide without violating\nthe Fourth Amendment. Johnson contends that to do so\nwould create a “search incident to probable cause” rule,\nallowing officers to search a person whenever probable\ncause to arrest exists. Johnson argues that the existence of\nsuch a rule will cause widespread fishing expeditions that are\npre-textual and discriminatory.\n\n We conclude that the search of Johnson’s person was\nconstitutional. The search incident to a lawful arrest\nexception is “based upon the need to disarm and to discover\nevidence,” but it “does not depend on what a court may later\ndecide was the probability in a particular arrest situation that\nweapons or evidence would in fact be found upon the person\nof the suspect.” United States v. Robinson, 414 U.S. 218, 235\n(1973). Thus, we do not balance Johnson’s interests in not\nbeing searched against Sergeant Simmont’s interest in\nsearching him. Instead we evaluate whether, as a general\nmatter, the justifications for the search incident to lawful\n\n10 UNITED STATES V. JOHNSON\n\narrest exception retain force in the context of a search\nperformed by an officer who has probable cause to arrest and\nshortly thereafter does arrest. See Knowles v. Iowa, 525 U.S.\n113, 117–19 (1998) (evaluating whether the historical\njustifications for searches incident to arrest applied to decide\nwhether to recognize a “search incident to citation”\nexception).\n\n The justifications for the exception do not lose any of\ntheir force in this context. As explained in Robinson, and\nreaffirmed in Knowles, when an officer begins an encounter\nwith another person, and probable cause to arrest exists,\ndanger to the police officer “flows from the fact of the arrest,\nand its attendant proximity, stress, and uncertainty, and not\nfrom the grounds for arrest.” Robinson, 414 U.S. at 234 n.5\n(emphasis added); see also Knowles, 525 U.S. at 117\n(quoting same). As in other contexts then, the precise crime\nfor which an officer has probable cause is irrelevant. Cf.\nDevenpeck, 543 U.S. at 153 (“[An officer’s] subjective\nreason for making the arrest need not be the criminal offense\nas to which the known facts provide probable cause”). So\nlong as the search was incident to and preceding a lawful\narrest—which is to say that probable cause to arrest existed\nand the search and arrest are roughly contemporaneous,\nSmith, 389 F.3d at 951—the arresting officer’s subjective\ncrime of arrest need not have been the crime for which\nprobable cause existed.\n\n Johnson argues that this result is inconsistent with\nKnowles, in which the Supreme Court held that warrantless\nsearches preceding an arrest but following a citation are\nunconstitutional. See 525 U.S. at 118. Knowles is\ndistinguishable. In that case, the issuance of the traffic\ncitation for speeding resolved the encounter’s danger, and\n“the possibility that an officer would stumble onto evidence\n\n UNITED STATES V. JOHNSON 11\n\nwholly unrelated to the speeding offense” was too remote to\njustify the intrusion. Id. In cases such as the one before us,\nthe danger attendant to the custodial arrest remains until the\nofficer decides to arrest, cite, or warn, and probable cause\nprovides a basis for the officer to search for evidence of that\ncrime. We therefore join our sister circuits in holding that\nKnowles does not prevent a search incident to a lawful arrest\nfrom occurring before the arrest itself, even if the crime of\narrest is different from the crime for which probable cause\nexisted. See United States v. Diaz, 854 F.3d 197, 206–07 (2d\nCir. 2017); United States v. Coleman, 458 F.3d 453, 458 (6th\nCir. 2006); United States v. Sanchez, 555 F.3d 910, 921–22\n(10th Cir. 2009).\n\n As for Johnson’s argument that this standard invites\npretextual and discriminatory searches, we do not think that\nthis case is meaningfully different from cases where the\nsearch precedes the arrest and the arresting officer’s\nsubjective crime of arrest is the same as the crime for which\nprobable cause existed. The safeguards of probable cause\nand an actual custodial arrest, here as there, are what protect\nindividuals’ Fourth Amendment rights. To the extent\nJohnson argues that those safeguards are insufficient, his\nargument is properly directed at the search-preceding-arrest\ndoctrine more generally, and this panel has no power to\noverrule circuit precedent, let alone that of the Supreme\nCourt. See Rawlings, 448 U.S. at 111 (“Where the formal\narrest followed quickly on the heels of the challenged search\nof petitioner’s person, we do not believe it particularly\nimportant that the search preceded the arrest rather than vice\nversa”).\n\n Johnson’s alternative argument is that, even applying\nthis standard, the search of his person was unconstitutional\nbecause Simmont did not have probable cause to arrest. We\n\n12 UNITED STATES V. JOHNSON\n\ndisagree. “‘[P]robable cause’ to justify an arrest means facts\nand circumstances within the officer’s knowledge that are\nsufficient to warrant a prudent person, or one of reasonable\ncaution, in believing, in the circumstances shown, that the\nsuspect has committed, is committing, or is about to commit\nan offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).\nThis standard is met when there is a “fair probability” that a\ncrime has been committed. United States v. Smith, 790 F.2d\n789, 792 (9th Cir. 1986). The smell of fresh and burnt\nmarijuana in Johnson’s car, along with the plastic baggies in\nthe glove compartment, and Johnson’s unusual search of the\nglove compartment, indicated a “fair probability” that\nJohnson had committed, was committing, or was about to\ncommit the offense of marijuana transportation. See CAL.\nHEALTH & SAFETY CODE § 11360. The search prior to\nJohnson’s arrest was therefore supported by probable cause.\n\n B.\n\n When an arrestee is the recent occupant of a vehicle, the\narresting officer may search that vehicle if the arrestee is\nunsecured and within reaching distance of the passenger\ncompartment, or if it is “reasonable to believe evidence\nrelevant to the crime of arrest might be found in the vehicle.”\nGant, 556 U.S. at 343 (quoting Thornton v. United States,\n541 U.S. 615, 632 (2004) (Scalia, J., concurring in the\njudgment)). Additionally, under the automobile exception, a\npolice officer may conduct a warrantless search of a vehicle\nif there is probable cause to believe the vehicle contains\nevidence of a crime. United States v. Faagai, 869 F.3d 1145,\n1150 (9th Cir. 2017). The district court relied on both the\nsearch incident-to-lawful-arrest exception and the\nautomobile exception to uphold the warrantless search of\nJohnson’s car.\n\n UNITED STATES V. JOHNSON 13\n\n We conclude that the search was justified under the\nautomobile exception, and therefore do not reach whether\nthe search was also justified as incident to Johnson’s arrest.\nWhen Simmont approached Johnson’s car, he immediately\nsmelled a combination of burnt and fresh marijuana. This\nprovided probable cause for Simmont to search the vehicle.\nSee United States v. Barron, 472 F.2d 1215, 1217 (9th Cir.\n1973) (“Further, the fact that an agent familiar with the odor\nof marijuana, smelled such an odor emanating from the\nautomobile when he jumped in to stop it, alone was\nsufficient to constitute probable cause for a subsequent\nsearch for marijuana”). Johnson argues that the search of his\ncar was nonetheless illegal because it was the fruit of the\nillegal search of his person. But, as we have already\nexplained, that search comported with the Fourth\nAmendment. There being no poisonous tree, the search of\nJohnson’s car cannot have been the fruit of an illegal search.\n\n C.\n\n When reviewing the validity of a search warrant issued\nby a magistrate, we give “great deference” to the\nmagistrate’s probable cause determination, and will uphold\nthe warrant’s validity if the magistrate was supplied “with a\nsubstantial basis for determining the existence of probable\ncause.” United States v. Leon, 468 U.S. 897, 914–15 (1984)\n(first quoting Spinelli v. United States, 393 U.S. 410, 419\n(1969), then quoting Illinois v. Gates, 462 U.S. 213, 239\n(1983)). “In borderline cases, preference will be accorded to\nwarrants and to the decision of the magistrate issuing it.”\nUnited States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990)\n(quoting United States v. Martinez, 588 F.2d 1227, 1234 (9th\nCir. 1987)).\n\n Johnson attacks the warrant on three grounds. First, he\nargues that Sample’s affidavit did not establish probable\n\n14 UNITED STATES V. JOHNSON\n\ncause that contraband would be found in his home. Second,\nhe argues that the affidavit did not establish the CI’s\nreliability. Third, he argues that the affidavit omitted the\nquantity of cocaine involved in the controlled buys,\nmisleading the magistrate into issuing the warrant. We\ndisagree with these arguments.\n\n As to probable cause, this case is controlled by United\nStates v. Terry. In that case, we held that an officer’s “first\nhand knowledge” of the defendant’s possession of controlled\nsubstances, combined with the officer’s “experience with\nother drug dealers,” provided the “substantial basis” for the\nmagistrate to determine that probable cause existed. Id. at\n276. The same holds true here. Sample averred that he had\ntwice observed Johnson distribute cocaine in the 20 days\npreceding the warrant, including once within 10 days. He\nalso averred that, after the buys, he observed Johnson return\nto the address listed on the warrant application, which\nJohnson entered and told police was “his house.” These\nfacts—combined with Sample’s description of how drug\ntraffickers buy cocaine in bulk, sell in small amounts, and\nuse their homes as store caches for the remainder—provided\na substantial basis for the San Mateo Superior Court to issue\nthe warrant. See id. at 275–76.\n\n As to the CI’s reliability, this argument is largely beside\nthe point. As we have just explained, the basis for probable\ncause in the affidavit was Sample’s “first hand knowledge”\nof Johnson’s drug dealing and his “experience with other\ndrug dealers” in how and where a confirmed drug dealer\nmight store contraband. See id. at 276. The warrant was not\nissued, unlike in other cases where informant credibility is\ncrucial, based on the CI’s tip that drugs would be found in\nJohnson’s home, but on Sample’s observations of the\ncontrolled buys and Johnson’s actions thereafter. The CI’s\n\n UNITED STATES V. JOHNSON 15\n\nonly role in establishing probable cause was therefore to\neffectuate the controlled buys, and the CI did establish\nreliability in this regard because police observed the buys,\ncorroborating the CI’s information.\n\n Finally, as to the omission of the size of the cocaine rocks\nsold, we conclude that any omission was immaterial to the\nmagistrate’s decision. A defendant challenging omissions\nfrom a warrant must make a substantial showing that “the\naffiant intentionally or recklessly omitted facts required to\nprevent technically true statements in the affidavit from\nbeing misleading.” United States v. Stanert, 762 F.2d 775,\n781 (9th Cir. 1985). Johnson has not met that standard here.\nAssuming arguendo that Sample’s omission of the precise\nsizes of the cocaine rocks was intentional or reckless, it was\nclear from the affidavit that the controlled buys involved\nsmall amounts of cocaine. Therefore, inclusion of those facts\nwould not have changed the meaning of any statement in the\naffidavit.\n\n IV.\n\n U.S.S.G. § 3B1.5 provides: “If … the defendant was\nconvicted of a drug trafficking crime or a crime of violence;\nand … the defendant used body armor during the\ncommission of the offense, in preparation for the offense, or\nin an attempt to avoid apprehension for the offense, increase\nby 4 levels.” U.S.S.G. § 3B1.5(1), (2)(B). The district court\nincreased Johnson’s offense level by four levels under this\nprovision because Johnson was wearing a bulletproof vest\nduring the 2015 traffic stop. Johnson argues that the district\ncourt erred in doing so because “use” does not mean simply\nwearing body armor.\n\n First interpreting the meaning of the guidelines de novo,\nwe reject Johnson’s construction argument. The\n\n16 UNITED STATES V. JOHNSON\n\ncommentary to the guidelines states that “‘[u]se’ means (A)\nactive employment in a manner to protect the person from\ngunfire; or (B) use as a means of bartering. ‘Use’ does not\nmean mere possession (e.g., ‘use’ does not mean that the\nbody armor was found in the trunk of the car but not used\nactively as protection).” Id. § 3B1.5, cmt. (n.1). There is no\nreasonable way to construe this language that would exclude\nwearing body armor from the definition of “use.” Wearing\nbody armor is the precise means by which a person\n“employ[s] [the body armor] in a manner to protect the\nperson from gunfire.” Accordingly, Johnson “used” the body\narmor within the meaning of the guidelines simply by\nwearing it. Accord United States v. Juarez, 866 F.3d 622,\n633 (5th Cir. 2017) (stating “this Court and others have only\napplied the body-armor enhancement where the defendant\ncommitted a crime wearing body armor” and collecting\ncases (emphasis in original)); United States v. Barrett, 552\nF.3d 724, 727–28 (8th Cir. 2009) (upholding enhancement\nwhere defendant wore body armor at party).\n\n Next reviewing the district court’s application of the\nguidelines to the facts of this case, there was no abuse of\ndiscretion. Johnson argues that he had an alternative\nexplanation for why he wore the body armor. But Johnson\nalso had cocaine base, heroin, marijuana, and oxycodone on\nhis person while he wore the body armor, as well as a loaded\nhandgun, hydrocodone, plastic bags, scales, and\nconcentrated cannabis in his car. On these facts, the district\ncourt did not abuse its discretion by determining that the\nenhancement should apply because Johnson wore body\narmor during a drug trafficking offense.\n\n AFFIRMED.\n\n UNITED STATES V. JOHNSON 17\n[END_CASE]", "role": "user" } ]
4,580,005		United States v. Josue Martinez-Hernandez	2019-01-09	16-50423	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Michael J. Melloy, * and Andrew D. Hurwitz, Circuit Judges.", "parties": "", "opinions": [{"author": "HURWITZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 16-50423\n Plaintiff-Appellee,\n D.C. No.\n v. 3:15-cr-02876-JAH-1\n\nJOSUE MARTINEZ-HERNANDEZ,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Southern District of California\n John A. Houston, District Judge, Presiding\n\n\nUNITED STATES OF AMERICA, No. 17-50295\n Plaintiff-Appellee,\n D.C. No.\n v. 3:16-cr-02253-H-1\n\nOSCAR CARCAMO-SOTO,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the Southern District of California\n Marilyn L. Huff, District Judge, Presiding\n\f2 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n Argued and Submitted November 8, 2018\n Pasadena, California\n\n Filed January 9, 2019\n\n Before: Johnnie B. Rawlinson, Michael J. Melloy, * and\n Andrew D. Hurwitz, Circuit Judges.\n\n Opinion by Judge Hurwitz\n\n\n SUMMARY *\n\n\n Criminal Law\n\n The panel affirmed two defendants’ convictions for\nillegal reentry in violation of 8 U.S.C. § 1326 in cases in\nwhich the defendants had been deported after immigration\nofficers determined that their prior convictions for robbery\nin violation of California Penal Code § 211 were for “crimes\nof violence” and thus constituted aggravated felonies under\n8 U.S.C. § 1101(a)(43)(F).\n\n In the district court, the defendants collaterally attacked\ntheir underlying removal orders, claiming that their removal\norders were invalid because § 211 robbery was no longer\ntreated as a crime of violence under recent Ninth Circuit\n\n\n \n The Honorable Michael J. Melloy, United States Circuit Judge for\nthe U.S. Court of Appeals for the Eighth Circuit, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 3\n\ndecisions. The district court denied the motions, reasoning\nthat even if § 211 robbery were not a “crime of violence”\naggravated felony under § 1101(a)(43)(F), it still was a theft\noffense under 8 U.S.C. § 1101(a)(43)(G).\n\n On appeal, the government conceded, and the panel held,\nthat in light of subsequent case law, the defendants’ robbery\nconvictions do not today qualify as “crimes of violence”\nunder § 1101(a)(43)(F), and that the current state of Circuit\nlaw governs the defendants’ collateral attacks of their\nremoval orders. The panel nevertheless affirmed the\nconvictions because the district courts in both cases correctly\nheld that § 211 robbery qualifies as a generic theft offense\nunder § 1101(a)(43)(G), and thus is an aggravated felony\nunder 8 U.S.C. § 1227(a)(2)(A)(iii).\n\n\n COUNSEL\n\nDoug Keller (argued), Federal Defenders of San Diego, Inc.,\nSan Diego, California, for Defendants-Appellants.\n\nDaniel Earl Zipp (argued), Assistant United States Attorney;\nHelen H. Hong, Assistant United States Attorney, Chief,\nAppellate Section, Criminal Division; Adam L. Braverman,\nUnited States Attorney; United States Attorney’s Office, San\nDiego, California; for Plaintiff-Appellee.\n\f4 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n OPINION\n\nHURWITZ, Circuit Judge:\n\n Josue Martinez-Hernandez and Oscar Carcamo-Soto\n(the “Defendants”) are Mexican citizens; each entered the\nUnited States without inspection while young. Years later,\neach Defendant was convicted of robbery in violation of\nCalifornia Penal Code (“CPC”) § 211. Upon completion of\ntheir prison terms, both Defendants were deported to Mexico\nafter immigration officers determined that their robbery\nconvictions were for “crimes of violence”—and thus\nconstituted aggravated felonies under 8 U.S.C.\n§ 1101(a)(43)(F).\n\n After returning to the United States, both defendants\nwere convicted of illegal reentry in violation of 8 U.S.C.\n§ 1326. In these consolidated appeals, they collaterally\nattack their removal orders, arguing that a conviction under\nCPC § 211 no longer qualifies under § 1101(a)(43)(F) as a\ncrime of violence. We agree with that argument. But that\nagreement avails the Defendants little, because the district\ncourts in both cases correctly held that § 211 robbery\nqualifies as a generic theft offense under 8 U.S.C.\n§ 1101(a)(43)(G), and thus is an aggravated felony under 18\nU.S.C. § 1227(a)(2)(A)(iii). We therefore affirm the\nDefendants’ convictions.\n\n I.\n\n Martinez pleaded guilty to robbery in violation of CPC\n§ 211 in 2004 and was sentenced to five years imprisonment.\nCarcamo pleaded guilty to CPC § 211 robbery in 2009 and\nreceived a three-year sentence. After release from prison,\neach Defendant was served with a Notice of Intent to Issue a\nFinal Administrative Removal Order (“Notice”) and placed\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 5\n\nin expedited removal proceedings pursuant to 8 U.S.C.\n§ 1228. The materially identical Notices alleged that each\nDefendant had (1) entered the United States “without\ninspection, admission, or parole by an immigration officer,”\nand (2) been later convicted of robbery in violation of CPC\n§ 211. The Notices stated that the named Defendant was\ndeportable under 8 U.S.C. § 1227(a)(2)(A)(iii) “because you\nhave been convicted of an aggravated felony as defined\nin . . . 8 U.S.C. § 1101(a)(43)(F).” After hearings before\nimmigration officers, both Defendants were ordered to be\ndeported to Mexico.\n\n Both Defendants later reentered the country, and were\nindividually charged with violating 8 U.S.C. § 1326. They\neach filed motions to dismiss pursuant to 8 U.S.C. § 1326(d),\nclaiming that their removal orders were invalid because CPC\n§ 211 robbery was no longer treated as a crime of violence\nunder recent Ninth Circuit decisions. The district courts\ndenied the motions, reasoning that even if CPC § 211\nrobbery were not a “crime of violence” aggravated felony\nunder § 1101(a)(43)(F), it still was a “theft offense”\naggravated felony under § 1101(a)(43)(G). Carcamo\nentered into a conditional plea agreement allowing him to\nappeal the denial of his § 1326(d) motion. Martinez initially\nentered a guilty plea, but later withdrew it, and appealed the\ndenial of his § 1326(d) motion. We have jurisdiction over\nthe Defendants’ consolidated appeals under 28 U.S.C.\n§1291, and review the denial of a motion to dismiss under\n8 U.S.C. § 1326(d) de novo. United States v. Cisneros-\nRodriguez, 813 F.3d 748, 755 (9th Cir. 2015).\n\n II.\n\n A defendant charged with illegal reentry in violation of\n8 U.S.C. § 1326 may “bring a collateral attack challenging\n\f6 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nthe validity of his underlying removal order, because that\norder serves as a predicate element of his conviction.”\nUnited States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).\nA successful collateral attack requires proof not only of a\ndeficiency in the original removal process, but also that “the\nentry of the order was fundamentally unfair.” 8 U.S.C.\n§ 1326(d)(2)–(3). “An underlying removal order is\n‘fundamentally unfair’ if: (1) a defendant’s due process\nrights were violated by defects in his underlying deportation\nproceeding, and (2) he suffered prejudice as a result of the\ndefects.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,\n1048 (9th Cir. 2004) (internal alteration omitted).\n\n A.\n\n The Defendants were removed under 8 U.S.C.\n§ 1227(a)(2)(A)(iii), which applies to an “alien who is\nconvicted of an aggravated felony at any time after\nadmission.” Under § 1101(a)(43)(F) an “aggravated felony”\nis a “crime of violence” as defined in 18 U.S.C. § 16, for\nwhich the term of imprisonment is at least one year. A crime\nof violence under 18 U.S.C. § 16 includes, as relevant in this\ncase, “an offense that has as an element the use, attempted\nuse, or threatened use of physical force against the person or\nproperty of another.” 18 U.S.C. § 16(a). 1\n\n When the Defendants were removed, we treated a\nrobbery conviction under CPC § 211 as a crime of violence\n\n\n 1\n The so-called “residual clause” in 18 U.S.C. § 16(b) also defines a\n“crime of violence” as “any other offense that is a felony and that, by its\nnature, involves a substantial risk that physical force against the person\nor property of another may be used in the course of committing the\noffense.” Section 16(b) was held unconstitutionally vague in Sessions v.\nDimaya, 138 S. Ct. 1204 (2018), and is not at issue in this case.\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 7\n\nunder § 1101(a)(43)(F). See Nieves-Medrano v. Holder, 590\nF.3d 1057, 1057–58 (9th Cir. 2010). But, in 2011, the\nCalifornia Supreme Court clarified that CPC § 211 can be\nviolated by the accidental use of force. See People v.\nAnderson, 252 P.3d 968, 972 (Cal. 2011). We therefore\nsubsequently held that a CPC § 211 conviction is not\ncategorically a violent felony as defined in the Armed Career\nCriminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United\nStates v. Dixon, 805 F.3d 1193, 1197–98 (9th Cir. 2015).\n\n The ACCA defines a “violent felony” as one that “has as\nan element the use, attempted use, or threatened use of\nphysical force against the person of another.” 18 U.S.C.\n§ 924(e)(2)(B)(i). The definition of a crime of violence in 18\nU.S.C. § 16(a) is materially indistinguishable, and the\ngovernment has therefore wisely conceded that the\ndefendants’ robbery convictions do not today qualify as\n“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F). The\ngovernment has also correctly conceded that the current state\nof Circuit law governs the Defendants’ collateral attacks of\ntheir removal orders. See United States v. Aguilera-Rios,\n769 F.3d 626, 633 (9th Cir. 2014) (noting in this context that\n“statutory interpretation opinions are fully retroactive.”).\n\n B.\n\n But, the government’s concessions, while helpful,\nmerely start our inquiry. A successful collateral attack\nrequires proof that “entry of the order was fundamentally\nunfair.” 8 U.S.C. § 1326(d)(3). Thus, the Defendants must\ntherefore “demonstrate that prejudice resulted” from a defect\nin the administrative process. United States v. Garcia-\nMartinez, 228 F.3d 956, 963 (9th Cir. 2000).\n\f8 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n 1.\n\n The Notices characterized the Defendants’ CPC § 211\nconvictions as aggravated felonies because they constituted\n“crimes of violence” as defined in 8 U.S.C. 1101(a)(43)(F).\nThe district courts in these cases instead found the § 211\nconvictions to be aggravated felonies because they were\ntheft offenses, as defined in 8 U.S.C. § 1101(a)(43)(G). The\nDefendants first argue that we may not consider whether\ntheir CPC § 211 convictions qualify as aggravated felonies\nfor a reason other than the one specified in their Notices.\n\n The Defendants rely on the settled premise that, when\nconsidering a petition for review of a decision of the Bureau\nof Immigration Appeals, we “have no power to affirm the\nBIA on a ground never charged by the [government] or\nfound by the IJ.” Al Mutarreb v. Holder, 561 F.3d 1023,\n1029 (9th Cir. 2009). But, this case arrives in a quite\ndifferent procedural posture than our direct review of BIA\ndecisions. In addressing petitions for review, our inquiry is\nlimited to determining whether the agency decision is\nsupported by substantial evidence or the BIA made an error\nof law. See Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th\nCir. 2008). If the agency erred, we lack the power to tell it\nto reach the same result for a different reason, as we would\nbe substituting our judgment for that of the executive with\nrespect to the discretionary decision to afford relief from\nremoval. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884\n(9th Cir. 2005) (Judicial review is precluded “with respect to\ndecisions that constitute an exercise of the Attorney\nGeneral’s discretion.”); Regents of the Univ. of Cal. v. U.S.\nDep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018)\n(“[T]he APA also forecloses judicial review under its\nprocedures to the extent that agency action is committed to\nagency discretion by law.”) (internal quotation omitted).\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 9\n\n Here, however, we do not directly review executive\nagency action. Rather, we consider appeals from district\ncourt orders rejecting collateral attacks on prior executive\norders. In this context, the central issue for decision is\nwhether a defendant “was removed when he should not have\nbeen.” Aguilera-Rios, 769 F.3d at 630 (quoting United\nStates v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.\n2006)). If a violation of CPC § 211 is categorically a theft\noffense under 8 U.S.C. § 1101(a)(43)(G), the Defendants\nshould have been removed, albeit perhaps on different\nstatutory bases than those cited in their Notices.\n\n The determination of whether CPC § 211 robbery is a\ntheft offense under § 1101(a)(43)(G) is purely a question of\nlaw. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir.\n2018). Even if the Defendants did not have occasion to\naddress that legal question at the time of their removals, they\nhave thoroughly done so today. If CPC § 211 robbery is an\naggravated felony under § 1101(a)(43)(G), the Defendants\nwill have suffered no real prejudice from any inability to\naddress the issue in their original removal proceedings. We\ntherefore turn to whether a § 211 conviction qualifies as a\n“theft offense” under §1101(a)(43)(G).\n\n 2.\n\n To determine whether a CPC § 211 conviction qualifies\nas a “theft offense” under § 1101(a)(43)(G) and thus is an\naggravated felony under 8 U.S.C.§ 1227(a)(2)(A)(iii), we\napply the “categorical” approach, under which we “compare\nthe elements of the statute forming the basis of the\ndefendant’s conviction with the elements of the generic\ncrime.” See United States v. Alvarado-Pineda, 774 F.3d\n1198, 1202 (9th Cir. 2014) (internal quotation omitted).\n“We have defined generic ‘theft’ as a taking of property or\n\f10 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nan exercise of control over property without consent with the\ncriminal intent to deprive the owner of the rights and benefits\nof ownership.” Id. (internal quotations and citations\nomitted). “Generic theft, in other words, requires (1) the\ntaking of (2) property (3) without consent (4) with the intent\nto deprive the owner of rights and benefits of ownership.”\nId. (internal quotations and citations omitted).\n\n CPC § 211 in turn defines robbery as “the felonious\ntaking of personal property in the possession of another,\nfrom his person or immediate presence, and against his will,\naccomplished by means of force or fear.” We have not\naddressed in a published opinion whether CPC § 211\nrobbery is categorically a generic theft offense under\n8 U.S.C. § 1101(a)(43)(G). 2 But, in Alvarado-Pineda, we\nheld that a virtually identical Washington statute, which\nprohibited the “tak[ing of] personal property from the person\nof another or in his or her presence against his or her will,”\nwas a categorical theft offense. 774 F.3d at 1202–03\n(alteration in original) (citing Wash. Rev. Code\n§ 9A.56.190). We stressed that although “the statute does\nnot explicitly provide that specific intent to steal is an\nelement of the crime, the state courts have so held.” Id. at\n1202. And, we noted the accepted rule that robbery is\n“larceny . . . plus two additional requirements: that the\nproperty be taken from the victim’s presence, and that the\ntaking be accomplished by means of force or fear.” Id. at\n\n 2\n A recent memorandum disposition held that CPC § 211 robbery is\ncategorically a § 1101(a)(43)(G) theft offense. Pena-Rojas v. Sessions,\n724 F. App’x 622, 623 (9th Cir. 2018); see also United States v. Guzman-\nIbarez, 792 F.3d 1094, 1097–99 (9th Cir. 2015) (holding, but without\napplying a categorical analysis, that an immigration judge correctly\ndetermined in 1999 that a conviction under CPC § 211 was a theft\noffense).\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 11\n\n1203 (citing 3 Wayne R. LaFave, Substantive Criminal Law\n§ 20.3 (2d ed. 2003)) (internal quotations omitted).\n\n The elements of CPC § 211 robbery are\nindistinguishable from those in the Washington robbery\nstatute addressed in Alvarado-Pineda. The California\nSupreme Court, like its Washington counterpart, has made\nclear that specific intent to steal is an essential element of\n§ 211 robbery. See Anderson, 252 P.3d at 972; People v.\nPollock, 89 P.3d 353, 367 (Cal. 2004); People v. Lewis, 22\nP.3d 392, 419 (Cal. 2001). And, consistent with the general\nrule, the California Supreme Court has also described CPC\n§ 211 as punishing “a species of aggravated larceny,”\nelevated to robbery by proof that the taking was\naccomplished through force or fear and from the victim or in\nhis presence. People v. Gomez, 179 P.3d 917, 920 (Cal.\n2008).\n\n In an attempt to distinguish Alvarado-Pineda, the\nDefendants argue that one can be convicted of CPC § 211\nrobbery as an accessory after the fact, for example, by being\na getaway driver. The Defendants then contend, quoting\nUnited States v. Vidal, that “an accessory after the fact to\ntheft cannot be culpable of generic theft.” 504 F.3d 1072,\n1080 (9th Cir. 2007) (en banc). On analysis, however, the\nargument fails.\n\n As we have previously noted, Vidal addressed an auto\ntheft statute, California Vehicle Code § 10851(a), which\nexpressly imposed liability on accessories after the fact. See\nVerdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061–62 (9th\nCir. 2009) (Vidal “examined . . . a statute that expressly\nincluded within its reach the actions of an accessory.”). CPC\n§ 211 has no such language. Moreover, “[t]here is a separate\nsection in the California Penal Code, section 32, that\n\f12 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nspecifically imposes criminal liabilities on accessories.” Id.\nat 1602. And, “[e]xcept in those relatively rare instances\nwhere the conduct of an accessory after the fact is included\nwithin the criminal statute, as was the case in Vidal,\nCalifornia courts require prosecutions under an accessory\nafter the fact theory of liability to be brought under section\n32 of the California Penal Code.” Id. Neither defendant here\nwas charged under § 32.\n\n Defendants also argue that because California courts\nhave upheld convictions under § 211 of defendants who\nengaged only in asportation (taking) of property that had\npreviously been forcibly taken from its owner, § 211 robbery\nis not generic theft. But, to be convicted of CPC § 211\nrobbery under any theory, a defendant “must form the intent\nto facilitate or encourage the commission of the robbery\nbefore or during the carrying away of the loot.” Gomez, 179\nP.3d at 921 (citing People v. Cooper, 811 P.2d 742, 748 (Cal.\n1991)). And, anyone found guilty of CPC § 211 robbery\nmust have engaged in the “exercise of control over property\nwithout consent with the criminal intent to deprive the owner\nof the rights and benefits of ownership.” See Alvarado-\nPineda, 774 F.3d at 1202. That is the classic definition of\ntheft. Id.\n\n III.\n\n For the reasons above, we AFFIRM the judgments of\nthe district courts in these consolidated appeals. 3\n\n\n 3\n A successful collateral attack under § 1326(d) also requires an\nalien to demonstrate “a ‘plausible’ ground for relief from deportation.”\nUnited States v. Arietta, 224 F.3d 1076, 1079 (9th Cir. 2000). Neither\nDefendant suggested such a plausible ground, either below or on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357258/", "author_raw": "HURWITZ, Circuit Judge:"}]}	JOHNNIE B RAWLINSON	MICHAEL J MELLOY	ANDREW D HURWITZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580005/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Josue Martinez-Hernandez\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 16-50423\n Plaintiff-Appellee,\n D.C. No.\n v. 3:15-cr-02876-JAH-1\n\nJOSUE MARTINEZ-HERNANDEZ,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Southern District of California\n John A. Houston, District Judge, Presiding\n\n\nUNITED STATES OF AMERICA, No. 17-50295\n Plaintiff-Appellee,\n D.C. No.\n v. 3:16-cr-02253-H-1\n\nOSCAR CARCAMO-SOTO,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the Southern District of California\n Marilyn L. Huff, District Judge, Presiding\n\f2 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n Argued and Submitted November 8, 2018\n Pasadena, California\n\n Filed January 9, 2019\n\n Before: Johnnie B. Rawlinson, Michael J. Melloy, * and\n Andrew D. Hurwitz, Circuit Judges.\n\n Opinion by Judge Hurwitz\n\n\n SUMMARY *\n\n\n Criminal Law\n\n The panel affirmed two defendants’ convictions for\nillegal reentry in violation of 8 U.S.C. § 1326 in cases in\nwhich the defendants had been deported after immigration\nofficers determined that their prior convictions for robbery\nin violation of California Penal Code § 211 were for “crimes\nof violence” and thus constituted aggravated felonies under\n8 U.S.C. § 1101(a)(43)(F).\n\n In the district court, the defendants collaterally attacked\ntheir underlying removal orders, claiming that their removal\norders were invalid because § 211 robbery was no longer\ntreated as a crime of violence under recent Ninth Circuit\n\n\n \n The Honorable Michael J. Melloy, United States Circuit Judge for\nthe U.S. Court of Appeals for the Eighth Circuit, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 3\n\ndecisions. The district court denied the motions, reasoning\nthat even if § 211 robbery were not a “crime of violence”\naggravated felony under § 1101(a)(43)(F), it still was a theft\noffense under 8 U.S.C. § 1101(a)(43)(G).\n\n On appeal, the government conceded, and the panel held,\nthat in light of subsequent case law, the defendants’ robbery\nconvictions do not today qualify as “crimes of violence”\nunder § 1101(a)(43)(F), and that the current state of Circuit\nlaw governs the defendants’ collateral attacks of their\nremoval orders. The panel nevertheless affirmed the\nconvictions because the district courts in both cases correctly\nheld that § 211 robbery qualifies as a generic theft offense\nunder § 1101(a)(43)(G), and thus is an aggravated felony\nunder 8 U.S.C. § 1227(a)(2)(A)(iii).\n\n\n COUNSEL\n\nDoug Keller (argued), Federal Defenders of San Diego, Inc.,\nSan Diego, California, for Defendants-Appellants.\n\nDaniel Earl Zipp (argued), Assistant United States Attorney;\nHelen H. Hong, Assistant United States Attorney, Chief,\nAppellate Section, Criminal Division; Adam L. Braverman,\nUnited States Attorney; United States Attorney’s Office, San\nDiego, California; for Plaintiff-Appellee.\n\f4 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n OPINION\n\nHURWITZ, Circuit Judge:\n\n Josue Martinez-Hernandez and Oscar Carcamo-Soto\n(the “Defendants”) are Mexican citizens; each entered the\nUnited States without inspection while young. Years later,\neach Defendant was convicted of robbery in violation of\nCalifornia Penal Code (“CPC”) § 211. Upon completion of\ntheir prison terms, both Defendants were deported to Mexico\nafter immigration officers determined that their robbery\nconvictions were for “crimes of violence”—and thus\nconstituted aggravated felonies under 8 U.S.C.\n§ 1101(a)(43)(F).\n\n After returning to the United States, both defendants\nwere convicted of illegal reentry in violation of 8 U.S.C.\n§ 1326. In these consolidated appeals, they collaterally\nattack their removal orders, arguing that a conviction under\nCPC § 211 no longer qualifies under § 1101(a)(43)(F) as a\ncrime of violence. We agree with that argument. But that\nagreement avails the Defendants little, because the district\ncourts in both cases correctly held that § 211 robbery\nqualifies as a generic theft offense under 8 U.S.C.\n§ 1101(a)(43)(G), and thus is an aggravated felony under 18\nU.S.C. § 1227(a)(2)(A)(iii). We therefore affirm the\nDefendants’ convictions.\n\n I.\n\n Martinez pleaded guilty to robbery in violation of CPC\n§ 211 in 2004 and was sentenced to five years imprisonment.\nCarcamo pleaded guilty to CPC § 211 robbery in 2009 and\nreceived a three-year sentence. After release from prison,\neach Defendant was served with a Notice of Intent to Issue a\nFinal Administrative Removal Order (“Notice”) and placed\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 5\n\nin expedited removal proceedings pursuant to 8 U.S.C.\n§ 1228. The materially identical Notices alleged that each\nDefendant had (1) entered the United States “without\ninspection, admission, or parole by an immigration officer,”\nand (2) been later convicted of robbery in violation of CPC\n§ 211. The Notices stated that the named Defendant was\ndeportable under 8 U.S.C. § 1227(a)(2)(A)(iii) “because you\nhave been convicted of an aggravated felony as defined\nin . . . 8 U.S.C. § 1101(a)(43)(F).” After hearings before\nimmigration officers, both Defendants were ordered to be\ndeported to Mexico.\n\n Both Defendants later reentered the country, and were\nindividually charged with violating 8 U.S.C. § 1326. They\neach filed motions to dismiss pursuant to 8 U.S.C. § 1326(d),\nclaiming that their removal orders were invalid because CPC\n§ 211 robbery was no longer treated as a crime of violence\nunder recent Ninth Circuit decisions. The district courts\ndenied the motions, reasoning that even if CPC § 211\nrobbery were not a “crime of violence” aggravated felony\nunder § 1101(a)(43)(F), it still was a “theft offense”\naggravated felony under § 1101(a)(43)(G). Carcamo\nentered into a conditional plea agreement allowing him to\nappeal the denial of his § 1326(d) motion. Martinez initially\nentered a guilty plea, but later withdrew it, and appealed the\ndenial of his § 1326(d) motion. We have jurisdiction over\nthe Defendants’ consolidated appeals under 28 U.S.C.\n§1291, and review the denial of a motion to dismiss under\n8 U.S.C. § 1326(d) de novo. United States v. Cisneros-\nRodriguez, 813 F.3d 748, 755 (9th Cir. 2015).\n\n II.\n\n A defendant charged with illegal reentry in violation of\n8 U.S.C. § 1326 may “bring a collateral attack challenging\n\f6 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nthe validity of his underlying removal order, because that\norder serves as a predicate element of his conviction.”\nUnited States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).\nA successful collateral attack requires proof not only of a\ndeficiency in the original removal process, but also that “the\nentry of the order was fundamentally unfair.” 8 U.S.C.\n§ 1326(d)(2)–(3). “An underlying removal order is\n‘fundamentally unfair’ if: (1) a defendant’s due process\nrights were violated by defects in his underlying deportation\nproceeding, and (2) he suffered prejudice as a result of the\ndefects.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,\n1048 (9th Cir. 2004) (internal alteration omitted).\n\n A.\n\n The Defendants were removed under 8 U.S.C.\n§ 1227(a)(2)(A)(iii), which applies to an “alien who is\nconvicted of an aggravated felony at any time after\nadmission.” Under § 1101(a)(43)(F) an “aggravated felony”\nis a “crime of violence” as defined in 18 U.S.C. § 16, for\nwhich the term of imprisonment is at least one year. A crime\nof violence under 18 U.S.C. § 16 includes, as relevant in this\ncase, “an offense that has as an element the use, attempted\nuse, or threatened use of physical force against the person or\nproperty of another.” 18 U.S.C. § 16(a). 1\n\n When the Defendants were removed, we treated a\nrobbery conviction under CPC § 211 as a crime of violence\n\n\n 1\n The so-called “residual clause” in 18 U.S.C. § 16(b) also defines a\n“crime of violence” as “any other offense that is a felony and that, by its\nnature, involves a substantial risk that physical force against the person\nor property of another may be used in the course of committing the\noffense.” Section 16(b) was held unconstitutionally vague in Sessions v.\nDimaya, 138 S. Ct. 1204 (2018), and is not at issue in this case.\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 7\n\nunder § 1101(a)(43)(F). See Nieves-Medrano v. Holder, 590\nF.3d 1057, 1057–58 (9th Cir. 2010). But, in 2011, the\nCalifornia Supreme Court clarified that CPC § 211 can be\nviolated by the accidental use of force. See People v.\nAnderson, 252 P.3d 968, 972 (Cal. 2011). We therefore\nsubsequently held that a CPC § 211 conviction is not\ncategorically a violent felony as defined in the Armed Career\nCriminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United\nStates v. Dixon, 805 F.3d 1193, 1197–98 (9th Cir. 2015).\n\n The ACCA defines a “violent felony” as one that “has as\nan element the use, attempted use, or threatened use of\nphysical force against the person of another.” 18 U.S.C.\n§ 924(e)(2)(B)(i). The definition of a crime of violence in 18\nU.S.C. § 16(a) is materially indistinguishable, and the\ngovernment has therefore wisely conceded that the\ndefendants’ robbery convictions do not today qualify as\n“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F). The\ngovernment has also correctly conceded that the current state\nof Circuit law governs the Defendants’ collateral attacks of\ntheir removal orders. See United States v. Aguilera-Rios,\n769 F.3d 626, 633 (9th Cir. 2014) (noting in this context that\n“statutory interpretation opinions are fully retroactive.”).\n\n B.\n\n But, the government’s concessions, while helpful,\nmerely start our inquiry. A successful collateral attack\nrequires proof that “entry of the order was fundamentally\nunfair.” 8 U.S.C. § 1326(d)(3). Thus, the Defendants must\ntherefore “demonstrate that prejudice resulted” from a defect\nin the administrative process. United States v. Garcia-\nMartinez, 228 F.3d 956, 963 (9th Cir. 2000).\n\f8 UNITED STATES V. MARTINEZ-HERNANDEZ\n\n 1.\n\n The Notices characterized the Defendants’ CPC § 211\nconvictions as aggravated felonies because they constituted\n“crimes of violence” as defined in 8 U.S.C. 1101(a)(43)(F).\nThe district courts in these cases instead found the § 211\nconvictions to be aggravated felonies because they were\ntheft offenses, as defined in 8 U.S.C. § 1101(a)(43)(G). The\nDefendants first argue that we may not consider whether\ntheir CPC § 211 convictions qualify as aggravated felonies\nfor a reason other than the one specified in their Notices.\n\n The Defendants rely on the settled premise that, when\nconsidering a petition for review of a decision of the Bureau\nof Immigration Appeals, we “have no power to affirm the\nBIA on a ground never charged by the [government] or\nfound by the IJ.” Al Mutarreb v. Holder, 561 F.3d 1023,\n1029 (9th Cir. 2009). But, this case arrives in a quite\ndifferent procedural posture than our direct review of BIA\ndecisions. In addressing petitions for review, our inquiry is\nlimited to determining whether the agency decision is\nsupported by substantial evidence or the BIA made an error\nof law. See Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th\nCir. 2008). If the agency erred, we lack the power to tell it\nto reach the same result for a different reason, as we would\nbe substituting our judgment for that of the executive with\nrespect to the discretionary decision to afford relief from\nremoval. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884\n(9th Cir. 2005) (Judicial review is precluded “with respect to\ndecisions that constitute an exercise of the Attorney\nGeneral’s discretion.”); Regents of the Univ. of Cal. v. U.S.\nDep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018)\n(“[T]he APA also forecloses judicial review under its\nprocedures to the extent that agency action is committed to\nagency discretion by law.”) (internal quotation omitted).\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 9\n\n Here, however, we do not directly review executive\nagency action. Rather, we consider appeals from district\ncourt orders rejecting collateral attacks on prior executive\norders. In this context, the central issue for decision is\nwhether a defendant “was removed when he should not have\nbeen.” Aguilera-Rios, 769 F.3d at 630 (quoting United\nStates v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.\n2006)). If a violation of CPC § 211 is categorically a theft\noffense under 8 U.S.C. § 1101(a)(43)(G), the Defendants\nshould have been removed, albeit perhaps on different\nstatutory bases than those cited in their Notices.\n\n The determination of whether CPC § 211 robbery is a\ntheft offense under § 1101(a)(43)(G) is purely a question of\nlaw. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir.\n2018). Even if the Defendants did not have occasion to\naddress that legal question at the time of their removals, they\nhave thoroughly done so today. If CPC § 211 robbery is an\naggravated felony under § 1101(a)(43)(G), the Defendants\nwill have suffered no real prejudice from any inability to\naddress the issue in their original removal proceedings. We\ntherefore turn to whether a § 211 conviction qualifies as a\n“theft offense” under §1101(a)(43)(G).\n\n 2.\n\n To determine whether a CPC § 211 conviction qualifies\nas a “theft offense” under § 1101(a)(43)(G) and thus is an\naggravated felony under 8 U.S.C.§ 1227(a)(2)(A)(iii), we\napply the “categorical” approach, under which we “compare\nthe elements of the statute forming the basis of the\ndefendant’s conviction with the elements of the generic\ncrime.” See United States v. Alvarado-Pineda, 774 F.3d\n1198, 1202 (9th Cir. 2014) (internal quotation omitted).\n“We have defined generic ‘theft’ as a taking of property or\n\f10 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nan exercise of control over property without consent with the\ncriminal intent to deprive the owner of the rights and benefits\nof ownership.” Id. (internal quotations and citations\nomitted). “Generic theft, in other words, requires (1) the\ntaking of (2) property (3) without consent (4) with the intent\nto deprive the owner of rights and benefits of ownership.”\nId. (internal quotations and citations omitted).\n\n CPC § 211 in turn defines robbery as “the felonious\ntaking of personal property in the possession of another,\nfrom his person or immediate presence, and against his will,\naccomplished by means of force or fear.” We have not\naddressed in a published opinion whether CPC § 211\nrobbery is categorically a generic theft offense under\n8 U.S.C. § 1101(a)(43)(G). 2 But, in Alvarado-Pineda, we\nheld that a virtually identical Washington statute, which\nprohibited the “tak[ing of] personal property from the person\nof another or in his or her presence against his or her will,”\nwas a categorical theft offense. 774 F.3d at 1202–03\n(alteration in original) (citing Wash. Rev. Code\n§ 9A.56.190). We stressed that although “the statute does\nnot explicitly provide that specific intent to steal is an\nelement of the crime, the state courts have so held.” Id. at\n1202. And, we noted the accepted rule that robbery is\n“larceny . . . plus two additional requirements: that the\nproperty be taken from the victim’s presence, and that the\ntaking be accomplished by means of force or fear.” Id. at\n\n 2\n A recent memorandum disposition held that CPC § 211 robbery is\ncategorically a § 1101(a)(43)(G) theft offense. Pena-Rojas v. Sessions,\n724 F. App’x 622, 623 (9th Cir. 2018); see also United States v. Guzman-\nIbarez, 792 F.3d 1094, 1097–99 (9th Cir. 2015) (holding, but without\napplying a categorical analysis, that an immigration judge correctly\ndetermined in 1999 that a conviction under CPC § 211 was a theft\noffense).\n\f UNITED STATES V. MARTINEZ-HERNANDEZ 11\n\n1203 (citing 3 Wayne R. LaFave, Substantive Criminal Law\n§ 20.3 (2d ed. 2003)) (internal quotations omitted).\n\n The elements of CPC § 211 robbery are\nindistinguishable from those in the Washington robbery\nstatute addressed in Alvarado-Pineda. The California\nSupreme Court, like its Washington counterpart, has made\nclear that specific intent to steal is an essential element of\n§ 211 robbery. See Anderson, 252 P.3d at 972; People v.\nPollock, 89 P.3d 353, 367 (Cal. 2004); People v. Lewis, 22\nP.3d 392, 419 (Cal. 2001). And, consistent with the general\nrule, the California Supreme Court has also described CPC\n§ 211 as punishing “a species of aggravated larceny,”\nelevated to robbery by proof that the taking was\naccomplished through force or fear and from the victim or in\nhis presence. People v. Gomez, 179 P.3d 917, 920 (Cal.\n2008).\n\n In an attempt to distinguish Alvarado-Pineda, the\nDefendants argue that one can be convicted of CPC § 211\nrobbery as an accessory after the fact, for example, by being\na getaway driver. The Defendants then contend, quoting\nUnited States v. Vidal, that “an accessory after the fact to\ntheft cannot be culpable of generic theft.” 504 F.3d 1072,\n1080 (9th Cir. 2007) (en banc). On analysis, however, the\nargument fails.\n\n As we have previously noted, Vidal addressed an auto\ntheft statute, California Vehicle Code § 10851(a), which\nexpressly imposed liability on accessories after the fact. See\nVerdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061–62 (9th\nCir. 2009) (Vidal “examined . . . a statute that expressly\nincluded within its reach the actions of an accessory.”). CPC\n§ 211 has no such language. Moreover, “[t]here is a separate\nsection in the California Penal Code, section 32, that\n\f12 UNITED STATES V. MARTINEZ-HERNANDEZ\n\nspecifically imposes criminal liabilities on accessories.” Id.\nat 1602. And, “[e]xcept in those relatively rare instances\nwhere the conduct of an accessory after the fact is included\nwithin the criminal statute, as was the case in Vidal,\nCalifornia courts require prosecutions under an accessory\nafter the fact theory of liability to be brought under section\n32 of the California Penal Code.” Id. Neither defendant here\nwas charged under § 32.\n\n Defendants also argue that because California courts\nhave upheld convictions under § 211 of defendants who\nengaged only in asportation (taking) of property that had\npreviously been forcibly taken from its owner, § 211 robbery\nis not generic theft. But, to be convicted of CPC § 211\nrobbery under any theory, a defendant “must form the intent\nto facilitate or encourage the commission of the robbery\nbefore or during the carrying away of the loot.” Gomez, 179\nP.3d at 921 (citing People v. Cooper, 811 P.2d 742, 748 (Cal.\n1991)). And, anyone found guilty of CPC § 211 robbery\nmust have engaged in the “exercise of control over property\nwithout consent with the criminal intent to deprive the owner\nof the rights and benefits of ownership.” See Alvarado-\nPineda, 774 F.3d at 1202. That is the classic definition of\ntheft. Id.\n\n III.\n\n For the reasons above, we AFFIRM the judgments of\nthe district courts in these consolidated appeals. 3\n\n\n 3\n A successful collateral attack under § 1326(d) also requires an\nalien to demonstrate “a ‘plausible’ ground for relief from deportation.”\nUnited States v. Arietta, 224 F.3d 1076, 1079 (9th Cir. 2000). Neither\nDefendant suggested such a plausible ground, either below or on appeal.\n[END_CASE]", "role": "user" } ]
4,580,006		Richard Zabriskie v. fnma/fannie Mae	2019-01-09	17-15807	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: J. Clifford Wallace and Susan P. Graber, Circuit Judges, and Robert S. Lasnik, * District Judge.", "parties": "", "opinions": [{"author": "WALLACE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRICHARD ZABRISKIE; KRISTIN Nos. 17-15807\nZABRISKIE, 17-16000\n Plaintiffs-Appellees,\n D.C. No.\n v. 2:13-cv-02260-SRB\n\nFEDERAL NATIONAL MORTGAGE OPINION\nASSOCIATION,\n Defendant-Appellant.\n\n\n\n Appeals from the United States District Court\n for the District of Arizona\n Susan R. Bolton, District Judge, Presiding\n\n Argued and Submitted October 18, 2018\n San Francisco, California\n\n Filed January 9, 2019\n\n Before: J. Clifford Wallace and Susan P. Graber, Circuit\n Judges, and Robert S. Lasnik, * District Judge.\n\n Opinion by Judge Wallace;\n Dissent by Judge Lasnik\n\n\n \n The Honorable Robert S. Lasnik, United States District Judge for\nthe Western District of Washington, sitting by designation.\n\n2 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n SUMMARY \n\n\n Fair Credit Reporting Act\n\n The panel reversed the district court’s judgment in favor\nof the plaintiffs in an action under the Fair Credit Reporting\nAct.\n\n The plaintiffs alleged that the Federal National Mortgage\nAssociation, or Fannie Mae, falsely communicated to\npotential mortgage lenders, via its proprietary software,\ncalled Desktop Underwriter, that the plaintiffs had a prior\nforeclosure on a mortgage account. Prior to a jury trial, the\ndistrict court ruled, on partial summary judgment, that\nFannie Mae was a “consumer reporting agency” within the\nmeaning of the FCRA. Finding the Federal Trade\nCommission’s guidelines persuasive, the panel held that\nFannie Mae was not a consumer reporting agency because it\ndid not regularly engage in the practice of assembling or\nevaluating consumer information, but rather provided\nsoftware that allowed mortgage lenders to assemble or\nevaluate such information. Further, Fannie Mae did not act\nwith the purpose of furnishing consumer reports to third\nparties. Rather, its purpose was only to facilitate a\ntransaction between the lender and itself, and it provided the\nDesktop Underwriter software to help lenders determine\nwhether it would purchase loans that they originated.\n\n The panel reversed and remanded with instructions to\nenter judgment in favor of Fannie Mae. It also vacated an\naward of attorney’s fees and costs to the plaintiffs.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 3\n\n Dissenting, Judge Lasnik wrote that Fannie Mae\nassembled and evaluated consumer credit data because the\nDesktop Underwriter software’s activities of reaching out to\nconsumer reporting agencies and pulling credit data, and\nevaluating that data to generate a report and recommendation\nfor the lenders, were attributable to Fannie Mae, rather than\nto the lenders that subscribed to Desktop Underwriter. In\naddition, Fannie Mae’s purpose was to furnish consumer\nreports to third parties. Therefore, Fannie Mae was a\nconsumer reporting agency under the FCRA.\n\n\n COUNSEL\n\nDeanne E. Maynard (argued), Brian E. Matsui, and Seth W.\nLloyd, Morrison & Foerster LLP, Washington, D.C.;\nMichael Miller, Morrison & Foerster LLP, New York, New\nYork; for Defendant-Appellant.\n\nSylvia A. Goldsmith (argued), Goldsmith & Associates,\nLLC, Rocky River, Ohio; Paul B. Mengedoth, Mengedoth\nLaw PLLC, Scottsdale, Arizona; for Plaintiffs-Appellees.\n\nDinita L. James, Gonzalez Law, LLC, Tempe, Arizona, for\nAmicus Curiae Federal Housing Finance Agency.\n\nChristian Schreiber, Chavez & Gertler LLP, Mill Valley,\nCalifornia, for Amici Curiae National Association of\nConsumer Advocates and National Consumer Law Center.\n\n4 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n OPINION\n\nWALLACE, Circuit Judge:\n\n Richard and Kristin Zabriskie sued the Federal National\nMortgage Association (Fannie Mae) under the Fair Credit\nReporting Act (FCRA). The district court, on cross-motions\nfor summary judgment, held that Fannie Mae was a\n“consumer reporting agency” within the meaning of the\nFCRA. We have jurisdiction under 28 U.S.C. § 1291, and\nwe reverse.\n\n I.\n\n Fannie Mae is a government-sponsored entity created by\nCongress in 1938. Its mission is to provide liquidity and\n“stability in the secondary market for residential mortgages.”\n12 U.S.C. § 1716. To fulfill its mission, Fannie Mae\npurchases mortgage loans from certain lenders. Specific\nguidelines and requirements, detailed in a publicly available\nmanual known as the “Selling Guide,” dictate which loans\nFannie Mae will purchase. Lenders can use the Selling\nGuide to determine whether Fannie Mae will purchase the\nloans that they originate. Using the Selling Guide to\nevaluate a loan’s eligibility for purchase is called “manual\nunderwriting.”\n\n Lenders also have the option to automate the\nunderwriting process through Fannie Mae’s proprietary\nsoftware, called Desktop Underwriter (DU). DU\nautomatically applies the guidelines and requirements\ndictated in the Selling Guide. Fannie Mae licenses DU to\nmany different lenders. DU allows a lender to enter\ninformation about the borrower and the property that is the\nsubject of the loan. The lender can also contract with credit\nbureaus—like Equifax, TransUnion, and Experian—to pay\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 5\n\nfor and import the borrower’s credit report into DU. The\nlender then uses DU to underwrite the loan. DU analyzes all\nthe inputted or imported information, and it provides a\nreport, called DU Findings, on a loan’s eligibility for\npurchase by Fannie Mae. Besides initially creating and then\nupdating the computer code comprising DU, no individual\nor entity at Fannie Mae is involved in the process of\ngenerating DU Findings.\n\n Relevant to the Zabriskies, the Selling Guide states that\nFannie Mae will not purchase a loan for a certain period after\na borrower experiences a “significant derogatory event,”\nsuch as a foreclosure. For example, Fannie Mae will not\npurchase a loan if the borrower experienced a foreclosure\nwithin the past seven years. It will not purchase a loan if the\nborrower experienced a preforeclosure or short sale within\nthe past two years.\n\n The Zabriskies had a “significant derogatory event”—a\nshort sale after defaulting on their prior mortgage. After\nwaiting two years, they attempted to refinance their current\nmortgage, and a number of lenders used DU to ascertain\nwhether a loan to them would be eligible for purchase by\nFannie Mae. Three of the eight DU Findings created in\nevaluating the Zabriskies’ prospective loan stated that the\nloan was ineligible due to a foreclosure reported within the\nlast seven years. It is undisputed that the Zabriskies did not\nhave a prior foreclosure within the last seven years before\nthe DU Findings were generated.\n\n The Zabriskies sued Fannie Mae, arguing that it “falsely\ncommunicated to multiple of the Zabriskies’ potential\nmortgage lenders through its electronic platform that they\nhad a prior foreclosure on a mortgage account.” They sued\nunder the FCRA, which requires a consumer reporting\nagency to follow “reasonable procedures to assure maximum\n\n6 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\npossible accuracy” of consumer information. 15 U.S.C.\n§ 1681e(b). On cross-motions for summary judgment, the\ndistrict court held that Fannie Mae acts as a consumer\nreporting agency when it licenses DU to lenders and that it\nis therefore subject to the FCRA. The case went to trial, and\nthe jury was instructed that “[i]n connection with its actions\nin this case Fannie Mae is a ‘consumer reporting agency,’\n[and] the DU findings are ‘consumer reports.’” The jury\nreturned a verdict for the Zabriskies, awarding $30,000 in\ndamages. The district court also awarded the Zabriskies\n$652,711.72 in attorney’s fees and $68,312.18 in costs. See\nid. § 1681o(a)(2) (shifting fees and costs to the plaintiff “in\nthe case of any successful action to enforce any liability\nunder” the FCRA). On appeal, Fannie Mae argues that it is\nnot liable under the FCRA because it is not a consumer\nreporting agency.\n\n II.\n\n We review a district court’s summary judgment de novo.\nCurley v. City of North Las Vegas, 772 F.3d 629, 631 (9th\nCir. 2014). We must “determine, viewing the evidence in\nthe light most favorable to the nonmoving party, whether\nthere are any genuine issues of material fact and whether the\ndistrict court correctly applied the substantive law.” Id.\nWhen cross-motions for summary judgment are at issue, we\nevaluate “each motion separately, giving the nonmoving\nparty in each instance the benefit of all reasonable\ninferences.” ACLU of Nev. v. City of Las Vegas, 466 F.3d\n784, 790–91 (9th Cir. 2006) (internal quotation marks\nomitted).\n\n III.\n\n The FCRA defines a consumer reporting agency as “any\nperson which . . . [1] regularly engages in whole or in part in\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 7\n\nthe practice of assembling or evaluating consumer credit\ninformation or other information on consumers [2] for the\npurpose of furnishing consumer reports to third parties.” 15\nU.S.C. § 1681a(f). The parties dispute both elements of the\nstatutory definition, and we analyze each in turn.\n\n 1.\n\n To be a consumer reporting agency, Fannie Mae must\n“regularly engage[] in . . . the practice of assembling or\nevaluating” consumer information. Fannie Mae argues that\nit does not so engage because it merely provides software\nthat allows lenders to assemble or evaluate such information.\nWe agree with Fannie Mae.\n\n In interpreting a statute, we presume that “Congress says\nwhat it means and means what it says.” Simmons v.\nHimmelreich, 136 S. Ct. 1843, 1848 (2016). When the plain\nmeaning of the statute is unambiguous, that meaning\ncontrols. United States v. Thompson, 728 F.3d 1011, 1023\n(9th Cir. 2013).\n\n To engage in something is “to do” something.\nSee MERRIAM–WEBSTER ONLINE DICTIONARY,\nhttps://www.merriam-webster.com/dictionary/engage%20in\n(last visited Nov. 19, 2018). Here, Fannie Mae does not\nassemble or evaluate information when a lender uses DU.\nLenders assemble the consumer information by inputting it\ninto DU or electronically importing reports from credit\nbureaus. Lenders contract with and pay the credit bureaus\nfor the reports. Lenders decide if and when to evaluate the\ninformation to create DU Findings. In the process of\ncreating, licensing, and updating DU, Fannie Mae does not\nassemble or evaluate consumer information. DU is merely\na tool for lenders to do so. Indeed, counsel for the Zabriskies\nagreed at oral argument that had another entity—like Google\n\n8 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nor Microsoft—created DU, that entity would not be\nconsidered a consumer reporting agency. The fact that\nFannie Mae, not another entity, created DU is a distinction\nwithout a difference. The same commonsense principle\napplies in either case: when a person uses a tool to perform\nan act, the person is engaging in the act; the tool’s maker is\nnot.\n\n This interpretation of the FCRA aligns with guidelines\nissued by the Federal Trade Commission (FTC), which\nopined that “[a] seller of software to a company that uses the\nsoftware product to process credit report information is not\na [consumer reporting agency] because it is not ‘assembling\nor evaluating’ any information.” FEDERAL TRADE\nCOMMISSION, 40 Years of Experience with the Fair Credit\nReporting Act: An FTC Staff Report with Summary of\nInterpretations, at 29 (2011). Although the FTC is no longer\ncharged with the FCRA’s interpretation, we find the FTC’s\nreasoning persuasive for its reliance on the plain meaning of\nthe statute. See United States v. Mead Corp., 533 U.S. 218,\n234 (2001) (holding that an agency’s interpretation of a\nstatute “may merit some deference whatever its form,” given\nthe specialized experience of the agency and given the\n“value of uniformity in . . . administrative and judicial\nunderstandings of what a national law requires”). Like the\nFTC’s hypothetical seller, Fannie Mae does not assemble or\nevaluate any information. It sells DU via licensing\nagreements, and lenders use DU to process credit reports and\nother information.\n\n The Zabriskies argue that Safeco Insurance Co. of\nAmerica v. Burr, 551 U.S. 47 (2007), requires us to place\nvery limited weight on the FTC’s guidelines. They\nmisinterpret Safeco. That case addressed whether Safeco\nhad willfully violated the FCRA. Holding that it had not, the\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 9\n\nCourt pointed to the absence of “guidance from the courts of\nappeals or the Federal Trade Commission (FTC) that might\nhave warned [Safeco] away from the view it took” of the\n“less than-pellucid statutory text.” Id. at 70. The Court\nrejected the plaintiffs’ suggestion that willfulness could be\npremised on a letter, “written by an FTC staff member to an\ninsurance company lawyer,” that “did not canvass the issue”\nand “explicitly indicated that it was merely ‘an informal staff\nopinion . . . not binding on the Commission.’” Id. at 70 n.19\n(omission in original). Nothing in Safeco suggests that the\nCourt overruled longstanding precedent on providing some\ndeference to agency interpretation, “whatever its form.”\nMead Corp., 533 U.S. at 234. Indeed, the Court ultimately\nadopted a statutory interpretation consistent with the\ninformal staff opinion. Safeco, 551 U.S. at 61–62. Besides,\nthe FTC guidelines here merely corroborate our independent\ninterpretation based on the text of the statute.\n\n The Zabriskies make other arguments that we determine\nunconvincing. First, they argue that Fannie Mae is a\nconsumer reporting agency by citing evidence of what DU\ndoes when lenders use it. This argument implicitly assumes\nthat functions performed by DU are actions performed by\nFannie Mae. For example, the Zabriskies highlight the\nproprietary algorithm created for DU that processes\nconsumer information and that determines whether a loan is\neligible for purchase. But what lenders do through DU’s\nalgorithm is not probative of what Fannie Mae does. The\nonly proffered evidence of Fannie Mae’s actions is that\nFannie Mae (1) stores backups of software-generated case\nfiles and (2) updates DU’s database requirements for\ninformation imported from credit bureaus. None of this\nactivity shows that Fannie Mae assembles or evaluates\ninformation for the purpose of furnishing a consumer report.\n\n10 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n The Zabriskies next highlight evidence that Fannie Mae\nconsiders itself, not the lenders, to be processing consumer\ninformation. The licensing agreement between Fannie Mae\nand the lenders states: “[a]s Licensee’s agent, Fannie Mae\nshall, and is hereby expressly authorized by Licensee to,\nobtain Consumer Credit Data for the sole purpose of\nperforming a Prequalification Analysis and/or making an\nunderwriting recommendation.” However, the agreement\nalso states that it is the licensee-lender who uses DU “to\nrequest and receive Consumer Reports and/or analyze or\nevaluate Consumer Credit Data in underwriting Mortgage\nLoan Applications.” The licensing agreement is thus, at\nbest, inconsistent about who Fannie Mae considers to be\nprocessing information when using DU. Furthermore,\nevidence of what Fannie Mae describes itself in a licensing\nagreement as doing is, at least in this context, not probative\nof what Fannie Mae actually does.\n\n The Zabriskies next argue that Fannie Mae made a series\nof judicial admissions that it assembles and evaluates\nconsumer information. The Zabriskies waived or forfeited\nthis argument by not raising it in the district court. See\nParker v. Cmty. First Bank (In re Bakersfield Westar\nAmbulance, Inc.), 123 F.3d 1243, 1248 (9th Cir. 1997)\n(refusing to consider alleged judicial admissions because\nthey were raised for the first time on appeal and otherwise\nconsidering them would be prejudicial). Considering the\nargument now would be prejudicial because Fannie Mae was\ndeprived the opportunity to amend or explain the purported\nadmission when the record was still open. Id. Moreover,\neven if we were to consider this argument, the identified\nstatements were taken out of context.\n\n In conclusion, Fannie Mae does not engage in the\npractice of assembling or evaluating consumer information.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 11\n\n 2.\n\n To be a consumer reporting agency, Fannie Mae also\nmust assemble or evaluate consumer information with “the\npurpose of furnishing consumer reports to third parties.” 15\nU.S.C. § 1681a(f). “Consumer report” means any\ncommunication by a consumer reporting agency “bearing on\na consumer’s credit worthiness, credit standing, credit\ncapacity, character, general reputation, personal\ncharacteristics, or mode of living which is used or expected\nto be used or collected in whole or in part for the purpose of\nserving as a factor in establishing the consumer’s eligibility”\nfor credit, insurance, employment, or other statutorily\nenumerated purposes. Id. § 1681a(d)(1). Fannie Mae argues\nthat, even if it were assembling or evaluating consumer\ninformation as a result of DU, it did not do so for the purpose\nof furnishing consumer reports to third parties. It argues that\nits purpose is only to “facilitate[e] a transaction between the\nlender and Fannie Mae.” Again, we agree with Fannie Mae.\n\n “Purpose” means “something set up as an object or\nend to be attained” or “intention.” MERRIAM-WEBSTER\nONLINE DICTIONARY, https://www.merriam-webster.com/\ndictionary/purpose (last visited Nov. 20, 2018). By its plain\nmeaning, therefore, the FCRA applies only to an entity that\nassembles or evaluates with the intent of providing a\nconsumer report to third parties. See Mangum v. Action\nCollection Serv., Inc., 2007 WL 1959076, at 4 (D. Idaho\nJuly 3, 2007) (concluding that defendant collection agencies\ndid not meet the “purpose” requirement because nothing in\nthe record suggested that defendants “assemble[d] or\nevaluate[d] consumer information for any other purpose than\nto collect debt on behalf of their clients”), aff’d in relevant\npart, 575 F.3d 935, 942 (9th Cir. 2009).\n\n12 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n Fannie Mae provides DU for the same reason it provides\nthe Selling Guide: to help lenders determine whether Fannie\nMae will purchase the loans that they originate. DU makes\nthat determination based only on information provided to it\nby lenders and credit bureaus. DU makes no determination\non whether the lender should originate the loan. Cf. 12\nU.S.C. § 1716 (limiting Fannie Mae’s purpose to the\nsecondary market for residential mortgages). DU contains\nno evaluation or new information regarding the borrower’s\ncreditworthiness that wasn’t already provided by the lender\nor credit bureau. 1 There is nothing in the record to suggest\nthat Fannie Mae assembles or evaluates consumer\ninformation—assuming that it does so—for any purpose\nother than to determine a loan’s eligibility for subsequent\npurchase by Fannie Mae. Its purpose is not to furnish a\nconsumer report to lenders.\n\n The Zabriskies highlight how lenders use DU before a\nloan is originated and how Fannie Mae has a separate\nprocess and internal software to determine whether an actual\nloan will be purchased. They argue that these facts belie the\ntrue purpose of DU, which is to furnish a consumer report to\nlenders. This argument is not persuasive. That Fannie Mae\nmakes both a predictive and actual determination of a loan’s\neligibility for purchase does not change our analysis. The\ngoal of either determination is the same: to convey to lenders\nwhether the loan will be purchased.\n\n\n\n\n 1\n The dissent highlights that “DU reported a foreclosure that did not\nappear in any data previously submitted.” The “foreclosure” message in\nDU merely meant that a consumer’s credit report included a certain\nManner of Payment (MOP) code provided by a credit bureau.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 13\n\n 3.\n\n The structure of the FCRA as a whole confirms our\nanalysis. The Zabriskies urge us to construe the FCRA\nliberally, so that the statutory definition of consumer\nreporting agency encompasses Fannie Mae. It is true that the\nFCRA’s “consumer oriented objectives support a liberal\nconstruction” of the statute. Guimond v. Trans Union Credit\nInfo. Co., 45 F.3d 1329, 1333 (9th Cir. 1995). The FCRA\n“was crafted to protect consumers from the transmission of\ninaccurate information about them and to establish credit\nreporting practices that utilize accurate, relevant, and current\ninformation in a confidential and responsible manner.” Id.\n(citations omitted). However, “it is quite mistaken to\nassume . . . that whatever might appear to further [a]\nstatute’s primary objective must be the law.” Henson v.\nSantander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)\n(internal quotation marks omitted). Rather than “presume”\nthat “any result consistent with [a party’s] account of the\nstatute’s overarching goal must be the law,” we must\n“presume more modestly instead that the legislature says\nwhat it means and means what it says.” Id. (internal\nquotation marks and alterations omitted); see also United\nStates v. Albertini, 472 U.S. 675, 680 (1985) (interpreting a\nstatute “must begin with the language employed by Congress\nand the assumption that the ordinary meaning of that\nlanguage accurately expresses the legislative purpose”\n(quoting Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469\nU.S. 189, 194 (1985)). Under the plain wording of the\nstatute, Fannie Mae did not engage in assembling or\nevaluating consumer information and, even if it did, it did\n\n14 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nnot do so for the purpose of furnishing a consumer report to\nlenders.\n\n Furthermore, aspects of the FCRA’s statutory scheme\nsuggest that Congress intended to exclude Fannie Mae from\nthe definition of consumer reporting agency. See King v.\nBurwell, 135 S. Ct. 2480, 2496 (2015) (“A fair reading of\nlegislation demands a fair understanding of the legislative\nplan”). The FCRA imposes several duties on consumer\nreporting agencies, one of which is to follow “reasonable\nprocedures to assure maximum possible accuracy” of\nconsumer information. 15 U.S.C. § 1681e(b). The\nZabriskies have asserted that Fannie Mae violated this duty.\nBut the FCRA also requires consumer reporting agencies to\nprovide a variety of disclosures to consumers. See, e.g., id.\n§ 1681g(a) (duty to disclose information in the consumer’s\nfile and the source of that information upon request); id.\n§ 1681g(c)(2) (duty to provide a summary of rights with\nrespect to any written disclosure made as required by the\nFCRA); id. § 1681h(c) (duty to provide trained personnel to\nexplain to the consumer any information to him).\n\n If we were to hold that Fannie Mae is a consumer\nreporting agency, it would be required to comply with the\nother FCRA duties to borrowers. That interpretation would\ncontradict Congress’s design for Fannie Mae to operate only\nin the secondary mortgage market, to deal directly with\nlenders, and not to deal with borrowers themselves. See 12\nU.S.C. §§ 1716, 1719. Indeed, the FCRA itself appears to\nmake a distinction between Fannie Mae and consumer\nreporting agencies. 15 U.S.C. § 1681g(g)(1)(B)(ii) (stating\nthat a mortgage lender should disclose a credit score\ngenerated by Fannie Mae using the procedures applicable to\ncredit scores not obtained from consumer reporting\nagencies).\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 15\n\n IV.\n\n We hold that Fannie Mae is not a consumer reporting\nagency. Accordingly, the district court erred by granting the\nZabriskies’ motion for summary judgment and by denying\nFannie’s Mae’s cross-motion on this issue. We reverse and\nremand with instructions to enter judgment in favor of\nFannie Mae. Because Fannie Mae is not liable under the\nFCRA, we also vacate the award of attorney’s fees and costs\nto the Zabriskies.\n\n REVERSED and REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357259/", "author_raw": "WALLACE, Circuit Judge:"}, {"author": "LASNIK, District Judge, dissenting", "type": "dissent", "text": "LASNIK, District Judge, dissenting:\n\n The Fair Credit Reporting Act (FCRA) was the “product\nof congressional concern over abuses in the credit reporting\nindustry.” Guimond v. Trans Union Credit Info. Co., 45 F.3d\n1329, 1333 (9th Cir. 1995) (citing St. Paul Guardian\nInsurance Co. v. Johnson, 884 F.2d 881, 883 (5th Cir.\n1989)). Its “legislative history . . . reveals that it was crafted\nto protect consumers from the transmission of inaccurate\ninformation about them . . .” Id. (citing Kates v. Croker\nNational Bank, 776 F.2d 1396, 1397 (9th Cir. 1985)). This\ncase arose because the Federal National Mortgage\nAssociation (Fannie Mae) issued reports stating that the\nZabriskies had a prior foreclosure when they did not. As a\nresult of the error, they were unable to secure refinancing of\nthe mortgage on their house between May 2012 and August\n2013. This is exactly the kind of harm that the Act was\ndesigned to prevent.\n\n16 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n I. Background\n\n Eight Desktop Underwriter (DU) Findings were\ngenerated at the request of lenders who were considering\nmaking a loan to the Zabriskies. The reports were based in\npart on credit information generated by the consumer\nreporting agencies Equifax, TransUnion and Experian. The\ncredit information contained Manner of Payment (MOP)\nCodes, which indicate whether an account is current or past\ndue. There was no uniformity in the industry on how these\nCodes were used, however, and Fannie Mae knew this. It\nalso knew that there was no Code for a short sale. Despite\nthe lack of uniformity and the lack of a short sale code,\nFannie Mae programmed DU so that an MOP Code 9 would\nalways be interpreted as a “collection or charge-off” and\nwould trigger a message stating that DU had identified a\nforeclosure or a deed-in-lieu of one.\n\n In April 2008, the Zabriskies had a successful short sale\nof their home, meaning that the home was sold for less than\nthe debt secured by the property and the lien holder agreed\nto accept less than the full amount owed. The short sale was\nreported on all of the reports obtained from the consumer\nreporting agencies, with remarks indicating that the creditor\nhad agreed to accept the sale amount in satisfaction of the\ndebt. The consumer reporting agencies coded the short sale\nin various ways, including three uses of MOP Code 9. No\nreport mentioned a foreclosure, and the Zabriskies never had\none. Op. at 5. Fannie Mae ignored the consumer reporting\nagencies’ remarks and the known ambiguity regarding the\nuse and meaning of MOP Codes and interpreted the three\ninstances of MOP Code 9 as evidence of a foreclosure.\nThose three DU Findings correctly identified a short sale, but\nalso stated that DU had identified a foreclosure. The DU\nFindings were issued to the lenders with “Refer with\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 17\n\nCaution” recommendations. As a result of the DU Findings,\ntwo lenders denied the Zabriskies’ loan applications, even\nthough Kristin Zabriskie had informed them that she and her\nhusband had executed a short sale, not a foreclosure.\n\n As the district court noted, had Fannie Mae simply\nreviewed the relevant data and issued a recommendation on\nwhether or not it would purchase the loan, there would likely\nbe no plausible claim under the FCRA. But when Fannie\nMae took the additional step of reporting that the Zabriskies\nhad a prior foreclosure—i.e., reporting consumer credit\ninformation—it took on the role, and the responsibilities, of\na consumer reporting agency.\n\n II. Congress’s Intention With Regard To Fannie Mae\n\n As the majority correctly points out, the FCRA\ndifferentiates between Fannie Mae and consumer reporting\nagencies in § 1681. See 15 U.S.C. §§ 1681g(1)(B)(ii);\n1681(1)(C) (distinguishing between a credit score\n“generated by an automated underwriting system used by\n[Fannie Mae]” and one “provided by a consumer reporting\nagency”). However, this is in a section from whose\napplication Fannie Mae and DU Findings are already\nexpressly excluded. Id. § 1681g(g)(1)(G) (“As used in this\nsubsection, the term “person” does not include [Fannie\nMae]”); id. § 1681g(f)(2)(A) (excluding DU Findings from\nthe definition of a “credit score”). Fannie Mae is referred to\nas something other than a consumer reporting agency\nbecause, for the purposes of this section, it is excluded from\nthe definition of a consumer reporting agency. For all other\npurposes and sections, however, Fannie Mae is a “person”\nthat may, depending on its activities, be subject to the FCRA.\nId. § 1681a. This Court has previously rejected the\nmajority’s conclusion that Fannie Mae cannot be a consumer\n\n18 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nreporting agency, albeit in an unpublished memorandum. 1\n“Reading [§ 1681g] in context, [the Court] [saw] no\nindication that Congress intended to exclude Fannie Mae\nfrom the definition of “consumer reporting agency,” and\n[declined] to read such an intent into the statute.”\nMcCalmont v. Fed. Nat’l Mortg. Ass’n, 677 F. App’x 331,\n(Mem) 332 (9th Cir. 2017). The fact that Fannie Mae is\nexplicitly excluded from § 1681g but not excluded or even\nreferred to anywhere else in the Act supports the McCalmont\nholding. “When Congress includes particular language in\none section of a statute but omits it in another section of the\nsame Act, it is generally presumed that Congress acts\nintentionally and purposely in the disparate inclusion or\nexclusion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452\n(2002) (quoting Russello v. United States, 464 U.S. 16, 23\n(1983)).\n\n The purpose of the FCRA was to “protect consumers\nagainst inaccurate and incomplete credit reporting.” Gorman\nv. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1155–56 (9th\nCir. 2009) (citing Nelson v. Chase Manhattan Mortg. Corp.,\n282 F.3d 1057, 1060 (9th Cir. 2002)). “[T]he legislative\nrecord includes pages of discussion of how such inaccuracies\nmay harm consumers . . .” Robins v. Spokeo, Inc., 867 F.3d\n1108, 1114 (9th Cir. 2017), cert. denied, 138 S. Ct. 931, 200\nL. Ed. 2d 204 (2018). Fannie Mae’s issuance of a “Refer\nwith Caution” recommendation does not automatically\nprevent a loan from being made, but Fannie Mae is aware\n\n 1\n See Ninth Circuit Rule 36-3 (providing that unpublished\ndispositions “are not precedent” except when relevant under the “law of\nthe case” doctrine or for claim or issue preclusion). The memorandum\ndisposition was a reversal of the district court’s decision in McCalmont\nv. Fed. Nat. Mortg. Ass’n, No. 2:13-CV-2107-HRH, 2014 WL 3571700,\nat 5 (D. Ariz. July 21, 2014).\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 19\n\nthat many lenders elect not to manually underwrite loans\nwhen they receive a cautionary recommendation from DU.2\nGiven the real world consequences of Fannie Mae’s\nconsumer credit reporting activities and the absence of any\nindication that Congress meant to exclude Fannie Mae from\nFCRA’s reach except where it did so explicitly, there is no\nreason to suspect that Congress intended for the type of\ninaccuracies that occurred in this case to proliferate\nunchecked. See Banneck v. HSBC Bank USA, N.A., No. 15-\nCV-02250-HSG, 2016 WL 3383960, at 5 (N.D. Cal. June\n20, 2016) (noting that “Fannie Mae’s DU software caused\nwidespread problems in the credit reporting industry.”). As\nthe majority acknowledges, Op. at 13, the Act’s “consumer\noriented objectives support a liberal construction of [it].”\nGuimond, 45 F.3d 1329, 1333 (9th Cir. 1995) (citing Kates,\n776 F.2d at 1397).\n\n III. Fannie Mae Assembles and Evaluates Consumer\n Credit Data\n\n 1. Liability of a Software Provider for the Software\n\n The majority accepts Fannie Mae’s argument, Op. at 7,\nthat it does not “engage[] in whole or in part in the practice\nof assembling or evaluating consumer credit information”\n\n 2\n A “Refer with Caution” recommendation indicates that the loan\ndoes not meet Fannie Mae’s standards. As DU’s recommendation is\nbased upon an evaluation of the same credit data on which a lender bases\nits decision on whether or not to issue a loan, it is understandable that a\nlender would interpret Fannie Mae’s rejection as an indication that\nsomething about the borrower or the loan makes it a risky transaction.\nMoreover, the recommendation means that Fannie Mae is unlikely to\npurchase the loan. That means that the lender’s capital will be tied up,\nrendering it unable to issue more loans. This is why most lenders choose\nto simply deny a borrower’s application when Fannie Mae issues a\n“Refer with Caution” rather than take a risk.\n\n20 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nbecause it merely provides a software program that performs\nthose functions. 15 U.S.C. § 1681a(f). On the facts of this\ncase, I respectfully disagree. It is undisputed that DU uses\nreference numbers provided by lenders to reach out to\nconsumer reporting agencies and pull credit data (i.e.,\nassembling) and that it then evaluates that data using\nalgorithms established by Fannie Mae (i.e., evaluating) to\ngenerate a report and recommendation for the lenders. The\nissue is whether these activities are attributable to Fannie\nMae or whether the lenders who subscribe to DU and request\nDU Findings are the “persons” who are assembling and\nprocessing consumer information for the purposes of the\nFCRA. 3\n\n First, it is worth noting that the FCRA itself makes\nreference to “an automated underwriting system used by\n[Fannie Mae]. . .” 15 U.S.C. § 1681g(g)(1)(A)(ii) (emphasis\nadded). See also Shaw v. Experian Info. Sols., Inc., 891 F.3d\n749, 758 (9th Cir. 2018) (“[T]he record . . . indicates that the\ninaccurate reporting of Appellants’ short sales was due to\nFannie Mae’s mistreatment of Experian’s coding . . .”)\n(emphasis added).\n\n However, this issue has not yet received much attention\nin the courts. In the only Ninth Circuit decision to consider\nwhether Fannie Mae assembles and evaluates consumer\ncredit information through DU, this Court found, on\nidentical facts, that the plaintiff’s complaint “contain[ed]\nsufficient plausible allegations to raise the reasonable\ninference that Fannie Mae . . . qualifies as a “consumer\n\n 3\n There are references to the case file being “used internally by\nFannie Mae employees,” but appellees have not established that any\n“individual or entity is involved in the process of generating DU\nFindings.” Op. at 5.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 21\n\nreporting agency.” McCalmont, 667 F. App’x (Mem) at\n332. 4 As the majority notes, Fannie Mae acknowledges that\nit has a continuing role in DU’s operations. Op. at 10. Fannie\nMae does not simply sell or license a software program to\nthird parties to do with as they please. Rather, Fannie Mae\nenters into a Software Subscription Agreement, which states\nthat Fannie Mae is the “Licensee’s agent” and “shall” obtain\nconsumer credit data for the purpose of evaluating the data\nand making an underwriting recommendation. 5 There are\nalso several internal guides and other documents 6 that\nsuggest that Fannie Mae considers itself to be processing the\ndata when DU Findings are requested. Id. Furthermore, the\nassembling and evaluating takes place on Fannie Mae’s\nnetwork. Lenders can only access DU through a portal on\n\n 4\n Fannie Mae relies on two out-of-circuit cases. In the first, Barnes\nv. DiTech.Com, No. 03-CV-6471, 2005 WL 913090 (E.D. Pa. Apr. 19,\n2005), the parties agreed that Fannie Mae was not a consumer reporting\nagency and the court erroneously held that DU itself does not evaluate\ncredit data. Barnes at 4 no. 20, 5. The second, Thomas v. Cendant\nMortg., No. CIV.A. 03-1672, 2004 WL 2600772 (E.D. Pa. Nov. 15,\n2004), was decided on a record that was less developed than the one here.\nNeither case contained any evidence that the lender had relied on DU’s\nresults when making its lending decision. Thomas at 9; Barnes at 5.\n 5\n The majority ignores Fannie Mae’s own statements regarding its\non-going role in the functioning of DU on the ground that “evidence of\nwhat Fannie Mae describes itself in a licensing agreement as doing is, at\nleast in this context, not probative of what Fannie Mae actually does.”\nOp. at 10 (emphasis in original). There is no contrary evidence about\nwhat Fannie Mae actually does, however. The issue is whether the\nactivities performed by DU are properly attributable to Fannie Mae, a\nquestion which Fannie Mae has answered in the affirmative.\n 6\n These include Fannie Mae’s “Credit Agencies System Integration\nGuide,” Fannie Mae’s “Risk Analysis Scope Document (RASD) for\nFMCA 2012 and Mortgage Scorecard Model 12.0.” and the Software\nSubscription Agreement.\n\n22 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nwww.FannieMae.com or an integrated third-party loan\norigination system. Consumer reporting agencies submit\ndata over the “Fannie Mae network.” They pay Fannie Mae\n$1 for each consumer report, and a monthly fee for\nconnectivity to the DU platform. The evidence shows that\nlenders essentially subscribe for a service provided by\nFannie Mae rather than simply purchasing a software\nprogram. In fact, it was Fannie Mae that ultimately chose to\nresolve the inconsistency and ambiguity in DU’s use of\nMOP Code 9 as indicating a foreclosure. 7\n\n The majority finds support in the guidelines issued by the\nFederal Trade Commission (FTC) for its conclusion that it is\nthe lenders who assemble and evaluate credit information\nwhen they request DU Findings. The FTC opined that “[a]\nseller of software to a company that uses the software\nproduct to process credit report information is not a\n[consumer reporting agency] because it is not ‘assembling or\nevaluating’ any information.’” FEDERAL TRADE\nCOMMISSION, 40 Years of Experience with the Fair Credit\nReporting Act: An FTC Staff Report with Summary of\nInterpretations, at 29 (2011) (FTC Guidelines). The FTC’s\nopinion was based on a staff letter (FTC Guidelines at 12–\n13, 29; see Cast, FTC Informal Staff Opinion Letter (Oct.\n27, 1997) (FTC Letter)), and I assume, as did the majority,\nthat the interpretation has some persuasive value. Op. at 8.\nNevertheless, the situation considered by the FTC is\nsubstantively different than that which gave rise to the\nZabriskies’ claims. First, as noted above, Fannie Mae does\nnot sell (or license) DU outright. It retains control over the\nsoftware product and, acting as the licensee’s agent, uses it\n\n\n 7\n In 2013, Fannie Mae re-coded its software, allowing for the\nidentification of short sales in response to certain Remarks Codes and for\na lender to instruct DU to disregard an erroneous finding of a foreclosure.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 23\n\nto assemble and evaluate credit report information upon a\nlender’s request and pursuant to the terms of the Software\nSubscription Agreement. Fannie Mae is not, therefore, a\n“seller of software to a company that uses the software\nproduct.” The FTC hypothetical also assumes that the\nsoftware provider would “no longer ha[ve] any connection\nat all to the information.” FTC Letter. This is in stark\ncontrast to Fannie Mae, which retains a strong connection\nwith the processed information. The connection is not, as\nappellees argue, a function of Fannie Mae’s continuing role\nin designing and updating DU’s functionality. Rather, it is\nbecause DU produces a recommendation on whether or not\nFannie Mae—the software provider itself—will ultimately\npurchase the loan that its own software analyzed for\neligibility. Fannie Mae’s connection to and interest in the\nDU Findings supports the conclusion Fannie Mae itself has\ndrawn: that it, rather than the lenders, uses DU to obtain\nconsumer credit information and generate a lending\nrecommendation.\n\n The majority’s tool analogy, Op. at 7–8, is unpersuasive\nbecause it does not take into account Fannie Mae’s\nacknowledged role in fulfilling a request for DU Findings or\nits interest in those Findings. To the extent DU can be\nanalogized to a mechanical tool such as a laser measurer, it\nwould be as if Fannie Mae allowed licensees to purchase\naccess to measurements obtained with the tool, but did the\nmeasuring itself. The subscriber would identify the gap it\nwanted measured, and Fannie Mae would point the laser,\nrecord the findings, and provide a report including both the\nraw measurements and a recommendation regarding\nwhether the distance was appropriate or inappropriate for a\ngiven use. In this analogy, Fannie Mae has an interest in\ncontrolling the measurement and evaluation process\nbecause, unless the licensee can show error, Fannie Mae will\n\n24 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nultimately rely on its own readings and recommendations\nwhen determining whether to, say, fund the licensee’s\nproject. A company like Google, on the other hand, does not\nact as a licensee’s agent when its search engine is queried,\nnor does it have an interest in the results generated by the\nsearch engine. Had Google created DU, the district court\nwould have had to consider whether there was evidence that\nGoogle was the one assembling and evaluating data at a\ncustomer’s request (as opposed to the user independently\nusing a program it purchased or licensed) and/or whether DU\nproduces an output of any relevance to Google (which could\ngive rise to an inference that Google, rather than the\ncustomer, is responsible for the evaluation on which it will\nultimately rely).\n\n Fannie Mae has characterized itself in this litigation as\nnothing more than a software developer providing a\ntechnological resource to lenders. It ignores its outsized role\nin mortgage lending and mortgage markets, its control over\nthe use of the technology, and its keen interest in the\ncreditworthiness of the consumers whose information DU\nassembles and evaluates. The characterization of Fannie\nMae as a software provider is a smokescreen, akin to Uber\nTechnologies, Inc.’s attempt to masquerade as a technology\ncompany rather than a transportation company. O’Connor v.\nUber Techs., Inc., 82 F. Supp. 3d 1133, 1141 (N.D. Cal.\n2015); see also Couser v. Pre-paid Legal Servs., Inc., 994 F.\nSupp. 2d 1100 (S.D. Cal. 2014). Fannie Mae is not a\n“technology company” in any real sense of the phrase: the\nrealities of Fannie Mae’s activities and interests related to\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 25\n\nDU cannot be so easily brushed aside or hidden behind a\nlabel. 8\n\n 2. Manual Underwriting and the Granting of a\n Waiver\n\n The majority states that DU “automatically applies the\nguidelines and requirements dictated by the Selling Guide”\nto determine whether a loan is eligible for purchase by\nFannie Mae. Op. at 4. As the district court observed,\nhowever, the Selling Guide directs lenders to consider\ncertain factors, but does not direct how they should be\nconsidered. DU, on the other hand, applies Fannie Mae’s\nproprietary algorithms to generate recommendations from\nthe factors. The district court correctly concluded that a\nlender cannot replicate DU’s results simply by following the\nSelling Guide. Fannie Mae itself advises lenders that, “[f]or\na more precise or definitive recommendation for\ndetermining whether to deliver a given mortgage to Fannie\nMae, the lender should submit the mortgage application to\nDU.”\n\n\n\n 8\n The cases cited by appellants, none of which concern the FCRA,\nare inapposite. In Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th\nCir. 2009), the Ninth Circuit distinguished between a software user\nengaging in an activity and a software engaging in the activity. Zango at\n568 F.3d at 1176. But it made no comment on whether the software\nprovider was liable for its software. Id. In Metro-Goldwyn-Mayer\nStudios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the Supreme Court\nfound the distributors of software products indirectly liable for copyright\ninfringement, in part because the direct infringers were so numerous that\n“the only practical alternative [was] to go against the distributor . . .” Id.\nat 928–30 (citing In re Aimster Copyright Litigation, 334 F.3d 643, 645–\n646 (C.A.7 2003)). Here, there is no one else “to go against.” Id. As the\ndistrict court pointed out, if Fannie Mae is not held liable, the Zabriskies\nare left with no recourse.\n\n26 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n It is for that reason that Fannie Mae treats the results of\na manual underwriting and DU Findings differently. In a\nmanual underwriting, because it is the lender who is engaged\nin the evaluation, the lender is required to make various\nrepresentations and warranties to Fannie Mae. But when the\nlender relies on DU, Fannie Mae waives those requirements.\nIf a lender manually underwriting a loan would always reach\nthe same result as DU, there would be no reason to have\nadditional requirements or to grant a waiver. The waiver\nmechanism further indicates that it is Fannie Mae, rather\nthan the lender, who is engaged through DU in the\n“assembling and evaluating” of information when a lender\nsubmits a request for DU Findings. 15 U.S.C. § 1681a(f).\n\n IV. Fannie Mae’s Purpose is to Furnish Consumer\n Reports to Third Parties\n\n The majority holds that the purpose of DU Findings is\nonly to inform lenders of whether or not Fannie Mae will\npurchase a loan, so as to facilitate a transaction between the\nlender and itself. Op at 12. With respect, I disagree.\n\n In an effort to show that Fannie Mae’s purpose is not to\nfurnish a consumer report to a third party, the majority finds\nthat the DU Findings contain no “new information regarding\nthe borrower’s creditworthiness that wasn’t already\nprovided by the lender or credit bureau.” Id. at 12. That is\ninaccurate. As the district court noted, it is undisputed that\nDU reported a foreclosure that did not appear in any data\npreviously submitted.\n\n Furthermore, DU Findings do not consist only of a\nrecommendation on whether or not Fannie Mae will\npurchase a loan. The Findings are generally five or six pages\nlong and include information about the loan, the property,\nthe consumer’s credit history and credit scores, any risk\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 27\n\nfactors, existing credit and liabilities, the consumer’s\nemployment and income, a proposed monthly payment,\nguidance to lenders, and conditions for Fannie Mae’s\napproval. This is far beyond a thumbs up or down indication.\nIt is “information . . . bearing on a consumer’s credit\nworthiness.” 15 U.S.C. § 1681(d). And it is for that reason\nthat DU Findings is “used . . . for the purpose of serving as\na factor in establishing the consumer’s eligibility for . . .\ncredit.” Id. Lenders submit their requests for DU Findings\nprior to their decisions on whether or not to issue a loan, and\nuse DU’s extensive credit risk assessment in making that\ndecision. The majority finds the chronology irrelevant, Op.\nat 12, but even the individual responsible for DU stated that\nthe ability “to determine Fannie Mae’s eligibility before a\nlender makes a particular loan . . . encourages the making of\nmore mortgage loans to borrowers.” DU Findings is, in\nshort, a consumer report. 15 U.S.C. § 1681(d). As Fannie\nMae is the entity that furnishes it, Fannie Mae is a consumer\nreporting agency. Id. § 1681(f).\n\n Fannie Mae argues that even if lenders do use DU\nFindings to make decisions on whether or not to issue a loan,\nthat is not Fannie Mae’s purpose. Id. § 1681(f). Rather, its\npurpose is to facilitate a transaction between the lender and\npotential borrower. Fannie Mae asserts that it is what the\nConsumer Financial Protection Bureau (CFPB) calls a “joint\nuser” of the credit information. CFPB’s Supervision and\nExamination Manual (Aug. 2018) (CFPB Manual) at 782.\nAs Fannie Mae and the lender “are jointly involved in the\ndecision to approve a consumer’s request for a product or\nservice,” they can share consumer credit information without\nbecoming consumer reporting agencies. Id. This is\nunpersuasive. Fannie Mae’s participation ends at the point at\nwhich it provides its consumer report to the lender. The\nlender certainly uses Fannie Mae’s DU Findings in making\n\n28 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\na decision on whether or not to issue a loan to a borrower,\nbut it does not in any way involve Fannie Mae as an entity\nin that decision. Fannie Mae is no more a joint user than\nEquifax or TransUnion.\n\n Nor does Fannie Mae’s role as an agent of the lender,\nsupra at 22–23, suggest otherwise. See FTC Guidelines at\n31. Fannie Mae cites only to a single out-of-circuit case that\naccepted that argument. Weidman v. Fed. Home Loan Mortg.\nCorp., 338 F. Supp. 2d 571, 575 (E.D. Pa. 2004) (“[Freddie\nMac] is sharing consumer reports with the lender, its\nprincipal, and assisting the principal by evaluating the\nconsumer’s credit information. As a matter of law, [it]\nsatisfies the definition of a joint user, and is consequently not\nsubject to the FCRA’s provisions relating to consumer\nreporting agencies). It has since been discredited. Adams v.\nNat’l Eng’g Serv. Corp., 620 F. Supp. 2d 319, 327 (D. Conn.\n2009) (noting the limited deference accorded to the FTC\nGuidelines, and finding the FTC’s “joint user” exception\ncontrary to Congress’s purpose in enacting the FCRA).\n\n Ultimately, DU has three possible recommendations:\nApprove/Eligible, Approve/Ineligible, and Refer with\nCaution. Approve/Eligible means that the risk of the loan is\nacceptable, and it is eligible for delivery to Fannie Mae.\nApprove/Ineligible means that that the risk of the loan is\nacceptable, but it is not eligible for delivery to Fannie Mae.\nIf Fannie Mae’s purpose were only to communicate whether\nor not it will purchase a loan, or to facilitate a transaction,\ntwo recommendations, Eligible or Ineligible, would suffice.\nIt is because Fannie Mae’s purpose is to furnish consumer\nreports to third parties so that they may make informed\nlending decisions that DU Findings includes an “Approve”\ncomponent. It is, therefore, a consumer reporting agency. 15\nU.S.C. § 1681a(f).\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 29\n\n V. Conclusion\n\n This Court has observed that, “given the ubiquity and\nimportance of consumer reports in modern life—in\nemployment decisions, in loan applications, in home\npurchases, and much more—the real-world implications of\nmaterial inaccuracies in [the] reports seem patent on their\nface.” Robins, 867 F.3d at 1114. To hold that Fannie Mae is\nnot a consumer reporting agency is to deny consumers any\nsort of recourse from these grave and consequential errors.\n\n For the foregoing reasons, I must respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357259/", "author_raw": "LASNIK, District Judge, dissenting"}]}	J CLIFFORD WALLACE	SUSAN P GRABER	ROBERT S LASNIK	1		{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580006/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Richard Zabriskie v. fnma/fannie Mae\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRICHARD ZABRISKIE; KRISTIN Nos. 17-15807\nZABRISKIE, 17-16000\n Plaintiffs-Appellees,\n D.C. No.\n v. 2:13-cv-02260-SRB\n\nFEDERAL NATIONAL MORTGAGE OPINION\nASSOCIATION,\n Defendant-Appellant.\n\n\n\n Appeals from the United States District Court\n for the District of Arizona\n Susan R. Bolton, District Judge, Presiding\n\n Argued and Submitted October 18, 2018\n San Francisco, California\n\n Filed January 9, 2019\n\n Before: J. Clifford Wallace and Susan P. Graber, Circuit\n Judges, and Robert S. Lasnik, * District Judge.\n\n Opinion by Judge Wallace;\n Dissent by Judge Lasnik\n\n\n \n The Honorable Robert S. Lasnik, United States District Judge for\nthe Western District of Washington, sitting by designation.\n\n2 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n SUMMARY \n\n\n Fair Credit Reporting Act\n\n The panel reversed the district court’s judgment in favor\nof the plaintiffs in an action under the Fair Credit Reporting\nAct.\n\n The plaintiffs alleged that the Federal National Mortgage\nAssociation, or Fannie Mae, falsely communicated to\npotential mortgage lenders, via its proprietary software,\ncalled Desktop Underwriter, that the plaintiffs had a prior\nforeclosure on a mortgage account. Prior to a jury trial, the\ndistrict court ruled, on partial summary judgment, that\nFannie Mae was a “consumer reporting agency” within the\nmeaning of the FCRA. Finding the Federal Trade\nCommission’s guidelines persuasive, the panel held that\nFannie Mae was not a consumer reporting agency because it\ndid not regularly engage in the practice of assembling or\nevaluating consumer information, but rather provided\nsoftware that allowed mortgage lenders to assemble or\nevaluate such information. Further, Fannie Mae did not act\nwith the purpose of furnishing consumer reports to third\nparties. Rather, its purpose was only to facilitate a\ntransaction between the lender and itself, and it provided the\nDesktop Underwriter software to help lenders determine\nwhether it would purchase loans that they originated.\n\n The panel reversed and remanded with instructions to\nenter judgment in favor of Fannie Mae. It also vacated an\naward of attorney’s fees and costs to the plaintiffs.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 3\n\n Dissenting, Judge Lasnik wrote that Fannie Mae\nassembled and evaluated consumer credit data because the\nDesktop Underwriter software’s activities of reaching out to\nconsumer reporting agencies and pulling credit data, and\nevaluating that data to generate a report and recommendation\nfor the lenders, were attributable to Fannie Mae, rather than\nto the lenders that subscribed to Desktop Underwriter. In\naddition, Fannie Mae’s purpose was to furnish consumer\nreports to third parties. Therefore, Fannie Mae was a\nconsumer reporting agency under the FCRA.\n\n\n COUNSEL\n\nDeanne E. Maynard (argued), Brian E. Matsui, and Seth W.\nLloyd, Morrison & Foerster LLP, Washington, D.C.;\nMichael Miller, Morrison & Foerster LLP, New York, New\nYork; for Defendant-Appellant.\n\nSylvia A. Goldsmith (argued), Goldsmith & Associates,\nLLC, Rocky River, Ohio; Paul B. Mengedoth, Mengedoth\nLaw PLLC, Scottsdale, Arizona; for Plaintiffs-Appellees.\n\nDinita L. James, Gonzalez Law, LLC, Tempe, Arizona, for\nAmicus Curiae Federal Housing Finance Agency.\n\nChristian Schreiber, Chavez & Gertler LLP, Mill Valley,\nCalifornia, for Amici Curiae National Association of\nConsumer Advocates and National Consumer Law Center.\n\n4 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n OPINION\n\nWALLACE, Circuit Judge:\n\n Richard and Kristin Zabriskie sued the Federal National\nMortgage Association (Fannie Mae) under the Fair Credit\nReporting Act (FCRA). The district court, on cross-motions\nfor summary judgment, held that Fannie Mae was a\n“consumer reporting agency” within the meaning of the\nFCRA. We have jurisdiction under 28 U.S.C. § 1291, and\nwe reverse.\n\n I.\n\n Fannie Mae is a government-sponsored entity created by\nCongress in 1938. Its mission is to provide liquidity and\n“stability in the secondary market for residential mortgages.”\n12 U.S.C. § 1716. To fulfill its mission, Fannie Mae\npurchases mortgage loans from certain lenders. Specific\nguidelines and requirements, detailed in a publicly available\nmanual known as the “Selling Guide,” dictate which loans\nFannie Mae will purchase. Lenders can use the Selling\nGuide to determine whether Fannie Mae will purchase the\nloans that they originate. Using the Selling Guide to\nevaluate a loan’s eligibility for purchase is called “manual\nunderwriting.”\n\n Lenders also have the option to automate the\nunderwriting process through Fannie Mae’s proprietary\nsoftware, called Desktop Underwriter (DU). DU\nautomatically applies the guidelines and requirements\ndictated in the Selling Guide. Fannie Mae licenses DU to\nmany different lenders. DU allows a lender to enter\ninformation about the borrower and the property that is the\nsubject of the loan. The lender can also contract with credit\nbureaus—like Equifax, TransUnion, and Experian—to pay\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 5\n\nfor and import the borrower’s credit report into DU. The\nlender then uses DU to underwrite the loan. DU analyzes all\nthe inputted or imported information, and it provides a\nreport, called DU Findings, on a loan’s eligibility for\npurchase by Fannie Mae. Besides initially creating and then\nupdating the computer code comprising DU, no individual\nor entity at Fannie Mae is involved in the process of\ngenerating DU Findings.\n\n Relevant to the Zabriskies, the Selling Guide states that\nFannie Mae will not purchase a loan for a certain period after\na borrower experiences a “significant derogatory event,”\nsuch as a foreclosure. For example, Fannie Mae will not\npurchase a loan if the borrower experienced a foreclosure\nwithin the past seven years. It will not purchase a loan if the\nborrower experienced a preforeclosure or short sale within\nthe past two years.\n\n The Zabriskies had a “significant derogatory event”—a\nshort sale after defaulting on their prior mortgage. After\nwaiting two years, they attempted to refinance their current\nmortgage, and a number of lenders used DU to ascertain\nwhether a loan to them would be eligible for purchase by\nFannie Mae. Three of the eight DU Findings created in\nevaluating the Zabriskies’ prospective loan stated that the\nloan was ineligible due to a foreclosure reported within the\nlast seven years. It is undisputed that the Zabriskies did not\nhave a prior foreclosure within the last seven years before\nthe DU Findings were generated.\n\n The Zabriskies sued Fannie Mae, arguing that it “falsely\ncommunicated to multiple of the Zabriskies’ potential\nmortgage lenders through its electronic platform that they\nhad a prior foreclosure on a mortgage account.” They sued\nunder the FCRA, which requires a consumer reporting\nagency to follow “reasonable procedures to assure maximum\n\n6 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\npossible accuracy” of consumer information. 15 U.S.C.\n§ 1681e(b). On cross-motions for summary judgment, the\ndistrict court held that Fannie Mae acts as a consumer\nreporting agency when it licenses DU to lenders and that it\nis therefore subject to the FCRA. The case went to trial, and\nthe jury was instructed that “[i]n connection with its actions\nin this case Fannie Mae is a ‘consumer reporting agency,’\n[and] the DU findings are ‘consumer reports.’” The jury\nreturned a verdict for the Zabriskies, awarding $30,000 in\ndamages. The district court also awarded the Zabriskies\n$652,711.72 in attorney’s fees and $68,312.18 in costs. See\nid. § 1681o(a)(2) (shifting fees and costs to the plaintiff “in\nthe case of any successful action to enforce any liability\nunder” the FCRA). On appeal, Fannie Mae argues that it is\nnot liable under the FCRA because it is not a consumer\nreporting agency.\n\n II.\n\n We review a district court’s summary judgment de novo.\nCurley v. City of North Las Vegas, 772 F.3d 629, 631 (9th\nCir. 2014). We must “determine, viewing the evidence in\nthe light most favorable to the nonmoving party, whether\nthere are any genuine issues of material fact and whether the\ndistrict court correctly applied the substantive law.” Id.\nWhen cross-motions for summary judgment are at issue, we\nevaluate “each motion separately, giving the nonmoving\nparty in each instance the benefit of all reasonable\ninferences.” ACLU of Nev. v. City of Las Vegas, 466 F.3d\n784, 790–91 (9th Cir. 2006) (internal quotation marks\nomitted).\n\n III.\n\n The FCRA defines a consumer reporting agency as “any\nperson which . . . [1] regularly engages in whole or in part in\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 7\n\nthe practice of assembling or evaluating consumer credit\ninformation or other information on consumers [2] for the\npurpose of furnishing consumer reports to third parties.” 15\nU.S.C. § 1681a(f). The parties dispute both elements of the\nstatutory definition, and we analyze each in turn.\n\n 1.\n\n To be a consumer reporting agency, Fannie Mae must\n“regularly engage[] in . . . the practice of assembling or\nevaluating” consumer information. Fannie Mae argues that\nit does not so engage because it merely provides software\nthat allows lenders to assemble or evaluate such information.\nWe agree with Fannie Mae.\n\n In interpreting a statute, we presume that “Congress says\nwhat it means and means what it says.” Simmons v.\nHimmelreich, 136 S. Ct. 1843, 1848 (2016). When the plain\nmeaning of the statute is unambiguous, that meaning\ncontrols. United States v. Thompson, 728 F.3d 1011, 1023\n(9th Cir. 2013).\n\n To engage in something is “to do” something.\nSee MERRIAM–WEBSTER ONLINE DICTIONARY,\nhttps://www.merriam-webster.com/dictionary/engage%20in\n(last visited Nov. 19, 2018). Here, Fannie Mae does not\nassemble or evaluate information when a lender uses DU.\nLenders assemble the consumer information by inputting it\ninto DU or electronically importing reports from credit\nbureaus. Lenders contract with and pay the credit bureaus\nfor the reports. Lenders decide if and when to evaluate the\ninformation to create DU Findings. In the process of\ncreating, licensing, and updating DU, Fannie Mae does not\nassemble or evaluate consumer information. DU is merely\na tool for lenders to do so. Indeed, counsel for the Zabriskies\nagreed at oral argument that had another entity—like Google\n\n8 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nor Microsoft—created DU, that entity would not be\nconsidered a consumer reporting agency. The fact that\nFannie Mae, not another entity, created DU is a distinction\nwithout a difference. The same commonsense principle\napplies in either case: when a person uses a tool to perform\nan act, the person is engaging in the act; the tool’s maker is\nnot.\n\n This interpretation of the FCRA aligns with guidelines\nissued by the Federal Trade Commission (FTC), which\nopined that “[a] seller of software to a company that uses the\nsoftware product to process credit report information is not\na [consumer reporting agency] because it is not ‘assembling\nor evaluating’ any information.” FEDERAL TRADE\nCOMMISSION, 40 Years of Experience with the Fair Credit\nReporting Act: An FTC Staff Report with Summary of\nInterpretations, at 29 (2011). Although the FTC is no longer\ncharged with the FCRA’s interpretation, we find the FTC’s\nreasoning persuasive for its reliance on the plain meaning of\nthe statute. See United States v. Mead Corp., 533 U.S. 218,\n234 (2001) (holding that an agency’s interpretation of a\nstatute “may merit some deference whatever its form,” given\nthe specialized experience of the agency and given the\n“value of uniformity in . . . administrative and judicial\nunderstandings of what a national law requires”). Like the\nFTC’s hypothetical seller, Fannie Mae does not assemble or\nevaluate any information. It sells DU via licensing\nagreements, and lenders use DU to process credit reports and\nother information.\n\n The Zabriskies argue that Safeco Insurance Co. of\nAmerica v. Burr, 551 U.S. 47 (2007), requires us to place\nvery limited weight on the FTC’s guidelines. They\nmisinterpret Safeco. That case addressed whether Safeco\nhad willfully violated the FCRA. Holding that it had not, the\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 9\n\nCourt pointed to the absence of “guidance from the courts of\nappeals or the Federal Trade Commission (FTC) that might\nhave warned [Safeco] away from the view it took” of the\n“less than-pellucid statutory text.” Id. at 70. The Court\nrejected the plaintiffs’ suggestion that willfulness could be\npremised on a letter, “written by an FTC staff member to an\ninsurance company lawyer,” that “did not canvass the issue”\nand “explicitly indicated that it was merely ‘an informal staff\nopinion . . . not binding on the Commission.’” Id. at 70 n.19\n(omission in original). Nothing in Safeco suggests that the\nCourt overruled longstanding precedent on providing some\ndeference to agency interpretation, “whatever its form.”\nMead Corp., 533 U.S. at 234. Indeed, the Court ultimately\nadopted a statutory interpretation consistent with the\ninformal staff opinion. Safeco, 551 U.S. at 61–62. Besides,\nthe FTC guidelines here merely corroborate our independent\ninterpretation based on the text of the statute.\n\n The Zabriskies make other arguments that we determine\nunconvincing. First, they argue that Fannie Mae is a\nconsumer reporting agency by citing evidence of what DU\ndoes when lenders use it. This argument implicitly assumes\nthat functions performed by DU are actions performed by\nFannie Mae. For example, the Zabriskies highlight the\nproprietary algorithm created for DU that processes\nconsumer information and that determines whether a loan is\neligible for purchase. But what lenders do through DU’s\nalgorithm is not probative of what Fannie Mae does. The\nonly proffered evidence of Fannie Mae’s actions is that\nFannie Mae (1) stores backups of software-generated case\nfiles and (2) updates DU’s database requirements for\ninformation imported from credit bureaus. None of this\nactivity shows that Fannie Mae assembles or evaluates\ninformation for the purpose of furnishing a consumer report.\n\n10 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n The Zabriskies next highlight evidence that Fannie Mae\nconsiders itself, not the lenders, to be processing consumer\ninformation. The licensing agreement between Fannie Mae\nand the lenders states: “[a]s Licensee’s agent, Fannie Mae\nshall, and is hereby expressly authorized by Licensee to,\nobtain Consumer Credit Data for the sole purpose of\nperforming a Prequalification Analysis and/or making an\nunderwriting recommendation.” However, the agreement\nalso states that it is the licensee-lender who uses DU “to\nrequest and receive Consumer Reports and/or analyze or\nevaluate Consumer Credit Data in underwriting Mortgage\nLoan Applications.” The licensing agreement is thus, at\nbest, inconsistent about who Fannie Mae considers to be\nprocessing information when using DU. Furthermore,\nevidence of what Fannie Mae describes itself in a licensing\nagreement as doing is, at least in this context, not probative\nof what Fannie Mae actually does.\n\n The Zabriskies next argue that Fannie Mae made a series\nof judicial admissions that it assembles and evaluates\nconsumer information. The Zabriskies waived or forfeited\nthis argument by not raising it in the district court. See\nParker v. Cmty. First Bank (In re Bakersfield Westar\nAmbulance, Inc.), 123 F.3d 1243, 1248 (9th Cir. 1997)\n(refusing to consider alleged judicial admissions because\nthey were raised for the first time on appeal and otherwise\nconsidering them would be prejudicial). Considering the\nargument now would be prejudicial because Fannie Mae was\ndeprived the opportunity to amend or explain the purported\nadmission when the record was still open. Id. Moreover,\neven if we were to consider this argument, the identified\nstatements were taken out of context.\n\n In conclusion, Fannie Mae does not engage in the\npractice of assembling or evaluating consumer information.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 11\n\n 2.\n\n To be a consumer reporting agency, Fannie Mae also\nmust assemble or evaluate consumer information with “the\npurpose of furnishing consumer reports to third parties.” 15\nU.S.C. § 1681a(f). “Consumer report” means any\ncommunication by a consumer reporting agency “bearing on\na consumer’s credit worthiness, credit standing, credit\ncapacity, character, general reputation, personal\ncharacteristics, or mode of living which is used or expected\nto be used or collected in whole or in part for the purpose of\nserving as a factor in establishing the consumer’s eligibility”\nfor credit, insurance, employment, or other statutorily\nenumerated purposes. Id. § 1681a(d)(1). Fannie Mae argues\nthat, even if it were assembling or evaluating consumer\ninformation as a result of DU, it did not do so for the purpose\nof furnishing consumer reports to third parties. It argues that\nits purpose is only to “facilitate[e] a transaction between the\nlender and Fannie Mae.” Again, we agree with Fannie Mae.\n\n “Purpose” means “something set up as an object or\nend to be attained” or “intention.” MERRIAM-WEBSTER\nONLINE DICTIONARY, https://www.merriam-webster.com/\ndictionary/purpose (last visited Nov. 20, 2018). By its plain\nmeaning, therefore, the FCRA applies only to an entity that\nassembles or evaluates with the intent of providing a\nconsumer report to third parties. See Mangum v. Action\nCollection Serv., Inc., 2007 WL 1959076, at 4 (D. Idaho\nJuly 3, 2007) (concluding that defendant collection agencies\ndid not meet the “purpose” requirement because nothing in\nthe record suggested that defendants “assemble[d] or\nevaluate[d] consumer information for any other purpose than\nto collect debt on behalf of their clients”), aff’d in relevant\npart, 575 F.3d 935, 942 (9th Cir. 2009).\n\n12 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\n Fannie Mae provides DU for the same reason it provides\nthe Selling Guide: to help lenders determine whether Fannie\nMae will purchase the loans that they originate. DU makes\nthat determination based only on information provided to it\nby lenders and credit bureaus. DU makes no determination\non whether the lender should originate the loan. Cf. 12\nU.S.C. § 1716 (limiting Fannie Mae’s purpose to the\nsecondary market for residential mortgages). DU contains\nno evaluation or new information regarding the borrower’s\ncreditworthiness that wasn’t already provided by the lender\nor credit bureau. 1 There is nothing in the record to suggest\nthat Fannie Mae assembles or evaluates consumer\ninformation—assuming that it does so—for any purpose\nother than to determine a loan’s eligibility for subsequent\npurchase by Fannie Mae. Its purpose is not to furnish a\nconsumer report to lenders.\n\n The Zabriskies highlight how lenders use DU before a\nloan is originated and how Fannie Mae has a separate\nprocess and internal software to determine whether an actual\nloan will be purchased. They argue that these facts belie the\ntrue purpose of DU, which is to furnish a consumer report to\nlenders. This argument is not persuasive. That Fannie Mae\nmakes both a predictive and actual determination of a loan’s\neligibility for purchase does not change our analysis. The\ngoal of either determination is the same: to convey to lenders\nwhether the loan will be purchased.\n\n\n\n\n 1\n The dissent highlights that “DU reported a foreclosure that did not\nappear in any data previously submitted.” The “foreclosure” message in\nDU merely meant that a consumer’s credit report included a certain\nManner of Payment (MOP) code provided by a credit bureau.\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 13\n\n 3.\n\n The structure of the FCRA as a whole confirms our\nanalysis. The Zabriskies urge us to construe the FCRA\nliberally, so that the statutory definition of consumer\nreporting agency encompasses Fannie Mae. It is true that the\nFCRA’s “consumer oriented objectives support a liberal\nconstruction” of the statute. Guimond v. Trans Union Credit\nInfo. Co., 45 F.3d 1329, 1333 (9th Cir. 1995). The FCRA\n“was crafted to protect consumers from the transmission of\ninaccurate information about them and to establish credit\nreporting practices that utilize accurate, relevant, and current\ninformation in a confidential and responsible manner.” Id.\n(citations omitted). However, “it is quite mistaken to\nassume . . . that whatever might appear to further [a]\nstatute’s primary objective must be the law.” Henson v.\nSantander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)\n(internal quotation marks omitted). Rather than “presume”\nthat “any result consistent with [a party’s] account of the\nstatute’s overarching goal must be the law,” we must\n“presume more modestly instead that the legislature says\nwhat it means and means what it says.” Id. (internal\nquotation marks and alterations omitted); see also United\nStates v. Albertini, 472 U.S. 675, 680 (1985) (interpreting a\nstatute “must begin with the language employed by Congress\nand the assumption that the ordinary meaning of that\nlanguage accurately expresses the legislative purpose”\n(quoting Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469\nU.S. 189, 194 (1985)). Under the plain wording of the\nstatute, Fannie Mae did not engage in assembling or\nevaluating consumer information and, even if it did, it did\n\n14 ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N\n\nnot do so for the purpose of furnishing a consumer report to\nlenders.\n\n Furthermore, aspects of the FCRA’s statutory scheme\nsuggest that Congress intended to exclude Fannie Mae from\nthe definition of consumer reporting agency. See King v.\nBurwell, 135 S. Ct. 2480, 2496 (2015) (“A fair reading of\nlegislation demands a fair understanding of the legislative\nplan”). The FCRA imposes several duties on consumer\nreporting agencies, one of which is to follow “reasonable\nprocedures to assure maximum possible accuracy” of\nconsumer information. 15 U.S.C. § 1681e(b). The\nZabriskies have asserted that Fannie Mae violated this duty.\nBut the FCRA also requires consumer reporting agencies to\nprovide a variety of disclosures to consumers. See, e.g., id.\n§ 1681g(a) (duty to disclose information in the consumer’s\nfile and the source of that information upon request); id.\n§ 1681g(c)(2) (duty to provide a summary of rights with\nrespect to any written disclosure made as required by the\nFCRA); id. § 1681h(c) (duty to provide trained personnel to\nexplain to the consumer any information to him).\n\n If we were to hold that Fannie Mae is a consumer\nreporting agency, it would be required to comply with the\nother FCRA duties to borrowers. That interpretation would\ncontradict Congress’s design for Fannie Mae to operate only\nin the secondary mortgage market, to deal directly with\nlenders, and not to deal with borrowers themselves. See 12\nU.S.C. §§ 1716, 1719. Indeed, the FCRA itself appears to\nmake a distinction between Fannie Mae and consumer\nreporting agencies. 15 U.S.C. § 1681g(g)(1)(B)(ii) (stating\nthat a mortgage lender should disclose a credit score\ngenerated by Fannie Mae using the procedures applicable to\ncredit scores not obtained from consumer reporting\nagencies).\n\n ZABRISKIE V. FED. NAT’L MORTGAGE ASS’N 15\n\n IV.\n\n We hold that Fannie Mae is not a consumer reporting\nagency. Accordingly, the district court erred by granting the\nZabriskies’ motion for summary judgment and by denying\nFannie’s Mae’s cross-motion on this issue. We reverse and\nremand with instructions to enter judgment in favor of\nFannie Mae. Because Fannie Mae is not liable under the\nFCRA, we also vacate the award of attorney’s fees and costs\nto the Zabriskies.\n\n REVERSED and REMANDED.\n[END_CASE]", "role": "user" } ]
9,024,649	United States v. Josue MARTINEZ-HERNANDEZ, United States of America v. Oscar Carcamo-Soto	United States v. Martinez-Hernandez	2019-01-09	No. 16-50423; No. 17-50295	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9017901/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9024649/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Josue MARTINEZ-HERNANDEZ, United States of America v. Oscar Carcamo-Soto\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,580,573		United States v. Lashay Lopez	2019-01-10	16-10261	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Paul L. Friedman,* District Judge.", "parties": "", "opinions": [{"author": "BYBEE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 16-10261\n Plaintiff-Appellee,\n D.C. No.\n v. 4:14-cr-01750-RCC-\n DTF-1\n LASHAY MARIE LOPEZ,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Raner C. Collins, Chief Judge, Presiding\n\n Argued and Submitted November 17, 2017\n San Francisco, California\n\n Filed January 10, 2019\n\n Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit\n Judges, and Paul L. Friedman,* District Judge.\n\n Opinion by Judge Bybee;\n Dissent by Judge Rawlinson\n\n\n\n\n \n The Honorable Paul L. Friedman, United States District Judge for\nthe District of Columbia, sitting by designation.\n\n2 UNITED STATES V. LOPEZ\n\n SUMMARY\n\n\n Criminal Law\n\n The panel vacated a conviction for false statement during\nthe purchase of a firearm, aggravated identity theft, and felon\nin possession of a firearm, in a case in which the only issue\nbefore the jury was the affirmative defense of duress.\n\n The panel held that expert testimony on Battered Woman\nSyndrome may be used by a defendant to support her duress\ndefense and rehabilitate her credibility, that the district court\ntherefore erred in precluding the defendant’s expert witness\nfrom testifying, and that this decision was prejudicial to her\ndefense.\n\n The panel held that the district court did not abuse its\ndiscretion by excluding a video of the defendant’s entire\ninterview in jail with ATF agents, where the evidence would\nhave consisted nearly exclusively of hearsay statements,\nincluding those made by the defendant.\n\n Dissenting, Judge Rawlinson could not say that the\ndistrict judge abused his discretion in determining that the\nexpert testimony on Battered Woman Syndrome was not\nadmissible in the context of establishing a duress defense, as\nopposed to the usual context of its admission—to establish\nself-defense.\n\n The panel remanded for a new trial.\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n UNITED STATES V. LOPEZ 3\n\n COUNSEL\n\nMichael L. Burke (argued), Assistant Federal Public\nDefender; Jon M. Sands, Federal Public Defender; Office of\nthe Federal Public Defender, Phoenix, Arizona; for\nDefendant-Appellant.\n\nErica Anderson McCallum (argued), Assistant United States\nAttorney; Robert L. Miskell, Appellate Chief; Elizabeth A.\nStrange, Acting United States Attorney; United States\nAttorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nBYBEE, Circuit Judge:\n\n Defendant-Appellant Lashay Marie Lopez was convicted\non three federal charges stemming from her purchase of a\nfirearm through the use of false identification (ID). Because\nLopez admitted to the offense conduct, the only issue before\nthe jury was the affirmative defense of duress. Lopez claims\nthat she purchased a handgun for Hector Karaca using her\nidentical twin sister’s ID in violation of her probation and\nfederal law because Karaca threatened to harm Lopez and her\nfamily if she failed to acquire a gun for him.\n\n In support of her duress defense, Lopez asked the district\ncourt to allow her to introduce expert testimony on Battered\nWoman Syndrome (BWS) and the effects of past abuse.\nLopez, who had been physically and sexually abused by her\nstepfather, contended that this evidence would “help provide\ncontext” to the jury regarding her fear of Karaca and why she\ndid not seek help from the police. Lopez similarly asserted\n\n4 UNITED STATES V. LOPEZ\n\nthat the expert’s description of the “characteristics of [a]\ndomestic violence victim” would help explain her\n“counterintuitive” behavior regarding Karaca. The court,\nhowever, excluded this evidence in a series of oral rulings,\nconcluding that BWS evidence is incompatible with the\nduress defense’s use of an objective reasonable-person\nstandard.\n\n We join the weight of authority in holding that such\nexpert testimony may be used by a defendant to support her\nduress defense and rehabilitate her credibility. We therefore\nfind that the district court committed legal error in precluding\nLopez’s expert witness from testifying and conclude that this\ndecision was prejudicial to her defense. Accordingly, we\nvacate her conviction and remand this case to the district\ncourt for a new trial.\n\n I. FACTS AND PROCEEDINGS\n\n A\n\n Lopez, who was twenty-seven years old at the time of the\ncrimes at issue, dated Karaca when the two were teenagers.\nThe relationship ended when Karaca was sentenced to eight-\nyears imprisonment in 2006 for a convenience-store\nshooting.1 Karaca was released from prison during the Fall of\n2013, but mere weeks later, police were searching for him in\nconnection with a double homicide in Phoenix, Arizona.\n\n In November 2013, Karaca arrived at Lopez’s home in\nTucson, where she lived with her mother, her identical twin\n\n 1\n It was, however, disputed at trial whether the two remained in\ncontact while he was in prison.\n\n UNITED STATES V. LOPEZ 5\n\nsister, her sister’s two young children, and a teenage sibling.\nKaraca and Lopez spoke for several hours and drank together.\nKaraca eventually admitted to Lopez that night that he was\n“on the run” from the police due to a shooting and asked her\nif she knew where he could get a gun. She told him she did\nnot, and Karaca accepted her answer. He later began making\nsexual advances towards Lopez, suggesting that they restart\ntheir relationship. Lopez initially rejected these overtures,\ntelling Karaca that she was currently involved with someone\nelse. Lopez “push[ed] him away” and “told him no . . . but he\ndidn’t stop” and “so [Lopez] just gave in.” Karaca eventually\nleft without further incident.\n\n Two days later, however, Karaca returned to Lopez’s\nhome and again asked her about acquiring a gun. She\nexplained to him at this point that she could not purchase a\ngun or “be around” one because she was on probation on a\nfelony drug conviction. Karaca responded by grabbing Lopez\nby the arm and threatening that, if she failed to get him a gun,\n“he[] [would] come back and shoot up [her] house and he\n[would] hurt [her] family.” Several days later, Karaca\nreturned to Lopez’s home and was limping. He told her that\nhe was in a “shootout” in the desert during a drug deal and\nwas shot in the leg. Lopez later testified at her trial that\nKaraca’s reference to a “shootout” made her believe that he\nalready had a gun, which increased her fear that he would\nharm her family.\n\n Four days later, Karaca returned and demanded that\nLopez purchase a gun for him that day from a nearby\npawnshop. She again responded that she was on probation.\nKaraca then insisted that Lopez pose as her identical twin\nsister during the purchase, demanding that they go to Lopez’s\nhome and retrieve her sister’s ID. After Lopez made various\n\n6 UNITED STATES V. LOPEZ\n\nexcuses as to why she could not obtain the ID that day,\nKaraca grabbed her again and threatened: “I already told you\nwhat I was going to do if you don’t get this gun for me. I\nknow you don’t want anything happening to your mom or\nyour sisters.” The two retrieved the ID and went to the\npawnshop that same day, where Lopez purchased a Ruger\npistol using the ID and her sister’s identifying information.\nShortly after she left the store, Karaca grabbed her purse,\nremoved the gun, and walked away.\n\n Two days later, Lopez saw Karaca one last time before\nher arrest. The two went together to a family barbeque hosted\nby her twin sister’s ex-husband, who was also Karaca’s\nfriend. The three left the party at one point to go to the store,\nwhere Karaca accused Lopez of flirting with her sister’s ex-\nhusband and slapped her in the face. Karaca initially left but\neventually returned to the party. Later that evening, Karaca\ngrabbed Lopez’s arm and told her he would “f--- [her] up, and\nno one will do anything about it.”\n\n Twelve days after purchasing the gun for Karaca, Lopez\nmet with her probation officer and a U.S. Marshal, who was\nsearching for Karaca. Lopez initially denied knowing\nKaraca, but after the probation officer found the pawnshop\nreceipt in Lopez’s purse, she admitted that she had purchased\na gun for Karaca. Lopez also stated she was seeing Karaca\nromantically, referring to him at one point as “my man.”\nLopez did not explain to the officers at this juncture why she\nhad bought the gun for Karaca and did not claim that Karaca\nhad threatened her. After refusing to provide them with any\nspecifics on Karaca’s location, Lopez was sent to jail. She\nlater explained at trial that she was afraid that Karaca would\nharm her if he discovered she had spoken to the authorities.\n\n UNITED STATES V. LOPEZ 7\n\n The following day, two agents with the Bureau of\nAlcohol, Tobacco, Firearms, and Explosives (ATF)\ninterviewed Lopez in a private room in the jail. For the first\ntime, Lopez claimed that she had purchased the gun for\nKaraca because he had threatened her and her family. She\nalso informed the agents that Karaca had told her he had\nanother gun. At trial, Lopez claimed that she only told the\nATF agents these details—as opposed to her probation officer\nthe previous day—because she felt “safer in the jail”:\n“[Karaca] can’t get me when I’m . . . in jail. There is no way\nof him getting ahold of me and finding out what I’m saying”\nto the agents. Shortly thereafter, the police located Karaca in\nTucson. He stole a vehicle using the gun purchased by Lopez\nand led the police on a lengthy car chase, which ended with\nKaraca taking his own life.\n\n B\n\n In late 2014, Lopez was indicted on three federal charges:\n(1) false statement during the purchase of a firearm under\n18 U.S.C. §§ 922(a)(6), 924(a)(2); (2) aggravated identity\ntheft under 18 U.S.C. §§ 1028A(a)(1), (c)(3); and (3) felon in\npossession of a firearm under 18 U.S.C. §§ 922(g)(1),\n924(a)(2). The case proceeded to a jury trial. Lopez\nstipulated to many of the elements of these offenses and\nconceded that she purchased the firearm using the false ID.\nHer trial strategy thus consisted entirely of proving that she\nacted under duress as a result of Karaca’s threats against her\nand her family.\n\n “Duress is not a statutory defense, but a common-law\ndefense that allows a jury to find that the defendant’s conduct\nis excused, even though the government has carried its burden\nof proof.” United States v. Kuok, 671 F.3d 931, 947 (9th Cir.\n\n8 UNITED STATES V. LOPEZ\n\n2012). In order to establish the defense, a defendant bears the\nburden of proving three elements by a preponderance of the\nevidence: “(1) [s]he was under an immediate threat of death\nor serious bodily injury, (2) [s]he had a well grounded fear\nthat the threat would be carried out, and (3) [s]he had no\nreasonable opportunity to escape.” Id.; see also United States\nv. Navarro, 608 F.3d 529, 532 (9th Cir. 2010); United States\nv. Johnson, 956 F.2d 894, 897 (9th Cir. 1992), superseded by\nregulation on other grounds; United States v.\nContento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984)). If\nsuccessful, a defendant is “legally excuse[d]” of the crime\ncommitted and must be found not guilty. Navarro, 608 F.3d\nat 532–33.\n\n Prior to trial, Lopez advised the district court of her intent\nto introduce testimony from Dr. Cheryl Karp, an expert “on\nissues of trauma, domestic violence, and victim behaviors.”\nLopez asserted that Dr. Karp’s testimony would assist the\njury “in understanding the evidence because . . . the trial\n[would] involve evidence as to coercion and threats of\nviolence leading up to the day Karaca took her from her home\nand forced her to purchase a firearm for him.” Lopez further\ncontended that Dr. Karp’s testimony regarding “behaviors of\nvictims of domestic violence” would “help provide context”\nto her duress defense, including whether her fear of Karaca\nwas “well-grounded” and whether she had a “reasonable\nopportunity” to escape from him. Finally, Lopez asserted that\nDr. Karp’s testimony would “liken to that of standard\ngovernment expert testimony in a domestic violence case\nwhere there is the counter-argument that the victim’s\nbehavior was not consistent or credible victim behavior.”\n\n The government moved in limine to exclude this\ntestimony, primarily arguing that the testimony would be\n\n UNITED STATES V. LOPEZ 9\n\nirrelevant because the duress defense applies an objective\nstandard. In an oral ruling, the district court described the\nissue as “pretty close” but ultimately granted the\ngovernment’s motion: “I don’t see how [Dr. Karp] can do\nanything to tell this jury how a reasonable person would have\nacted under the circumstances, so I’m not letting her in for\nthat purpose.” Lopez moved for reconsideration at several\npoints during trial, which the court orally denied each time.\nThe district court did, however, instruct the jury on the duress\ndefense and permitted Lopez herself to testify about how her\nexperience as an abuse victim influenced her interactions with\nKaraca.\n\n After the jury rendered a guilty verdict on all counts,\nLopez moved for a new trial, arguing in part that the\npreclusion of Dr. Karp’s testimony prejudiced her defense.\nIncluded with the motion was Dr. Karp’s affidavit, in which\nshe provided more detail as to her intended testimony.\nSpecifically, Dr. Karp asserted that “[t]he jury [did] not have\nthe proper knowledge base to understand some of the\npsychological explanations as to the dynamics involved in\nBattered Woman Syndrome and why Battered Women\nremain with abusive men, including the theory of Learned\nHelplessness.” She further attested that her “testimony would\nalso have given the jury an opportunity to hear from an expert\non Trauma and how that may have influenced [Lopez’s]\nfeelings when she did not seek the help of the police, given\nher own trauma history of being sexually abused by her step-\nfather and the police never protecting her.” The court denied\nthe motion in an oral ruling.\n\n The court eventually sentenced Lopez to a combined 30-\nmonths imprisonment. Lopez filed a timely appeal, and we\nhave jurisdiction under 28 U.S.C. § 1291.\n\n10 UNITED STATES V. LOPEZ\n\n II. ANALYSIS\n\n Lopez claims that two erroneous evidentiary rulings\nprejudiced her duress defense. First, she argues that the\ndistrict court erroneously excluded Dr. Karp’s testimony\nregarding BWS. Because we hold that the district court\ncommitted reversible error by barring this expert testimony,\nwe devote the bulk of our discussion below to addressing why\nsuch evidence is generally admissible. We then conclude by\nbriefly addressing (and ultimately rejecting) Lopez’s separate\nargument that the district court erred by excluding a video of\nher entire interview in jail with the ATF agents.2\n\n A\n\n Lopez argues that Dr. Karp’s testimony supports two\nelements of the duress defense: (1) whether Lopez had a\nwell-grounded fear that Karaca would harm her and her\nfamily if she refused to purchase a gun for him and (2)\nwhether she had a reasonable opportunity to escape from him\nby calling the police. The government continues to counter\nthat BWS evidence is incompatible with a duress defense\n\n 2\n Lopez also claims that the government engaged in prosecutorial\nmisconduct during its cross examination of her by stating, in response to\none of her answers, “Well, that’s just a lie right now” and, at several other\npoints, “Does that make sense?” Although the district court gave the jury\na curative instruction—“that what the lawyers said in their questioning and\ncross-examination is not evidence”—Lopez contends that the court should\nhave cited the prosecutor’s specific comments. On appeal, the\ngovernment concedes that the “that’s just a lie” comment was improper\nbut contends that the curative instruction was sufficient and that any\npotential error was harmless. Given the government’s concession and the\nfact that we are remanding for a new trial, we need not address this claim.\nSimilarly, we also decline to address Lopez’s claim of cumulative error.\n\n UNITED STATES V. LOPEZ 11\n\nbecause both aforementioned elements assess objective\nreasonableness. See United States v. Willis, 38 F.3d 170, 176\n(5th Cir. 1994); Johnson, 956 F.2d at 898. BWS, the\ngovernment argues, reflects only a defendant’s “subjective\nvulnerability.”\n\n Like the majority of courts that have addressed this\nquestion, we are unpersuaded by this proposed distinction.\nBefore turning to these authorities, however, we must first\naddress our decision in Johnson, which the government\nargued before the district court controls this question.3\n\n 1\n\n Johnson involved several female defendants who were\nconvicted for their nominal participation in a violent drug\norganization. 956 F.2d at 897. Three of the defendants—\nWood, Johnson, and Breck—had claimed that they acted\nunder duress from the organization’s “kingpin,” who\nthreatened and assaulted two of the defendants and their\nimmediate family members. Id. at 897–99, 901–02. The\ndistrict court permitted testimony on BWS from an expert on\nbehalf of Wood, but denied Johnson and Beck the opportunity\nto call an expert or cross-examine Wood’s expert. Id.\nBecause the jury nonetheless found all three defendants\nguilty, “[t]he dominant issue on the appeals of” these\n\n 3\n The government sparingly cites Johnson on appeal, and it no\nlonger appears to assert that we decided in Johnson that BWS supports\nevidence only of subjective reasonableness. But because at least one other\ncourt has interpreted Johnson in this manner, we must ensure that we are\nnot bound by our prior decision. See Willis, 38 F.3d at 175 (“[T]he\nJohnson court found that subjective evidence of the battered woman’s\nsyndrome could not be taken into account in determining criminal liability\nand thus could not upset the convictions.”).\n\n12 UNITED STATES V. LOPEZ\n\ndefendants was “the duress defense as it interacts with\nsentencing.” Id. at 897. Indeed, we remanded these\ndefendants’ cases for resentencing, in part, because the\ndistrict court erroneously believed that it lacked the authority\nunder the sentencing guidelines to depart downward based on\nduress if a defendant failed to prove the affirmative defense\nat trial. Id. at 900–03.\n\n Before addressing each defendant’s claims, we discussed\nthe principles underlying duress generally. We specified that\nthe defense applies an objective, reasonable-person standard:\n\n The formula is addressed to the impact of\n a threat of force upon a reasonable person:\n The fear must be “well-grounded.” There\n must be no “reasonable” opportunity to\n escape. The formula is in harmony with the\n analysis of duress in the Model Penal Code\n which recognizes duress in the use of\n unlawful force “that a person of reasonable\n firmness in his [or her] situation would have\n been unable to resist.” American Law\n Institute, Model Penal Code § 2.09(i) (1985).\n\nId. at 898. In determining whether a fear is well-grounded,\nthe jury may “take into account the objective situation in\nwhich the defendant was allegedly subjected to duress. Fear\nwhich would be irrational in one set of circumstances may be\nwell-grounded if the experience of the defendant with those\napplying the threat is such that the defendant can reasonably\nanticipate being harmed on failure to comply.” Id. (emphasis\nadded). In Johnson, for instance, there was little doubt that\nthe jury, in assessing the reasonableness of the defendants’\nfear, could properly consider the fact that the defendants had\n\n UNITED STATES V. LOPEZ 13\n\nwitnessed the kingpin commit brutal acts against others. See,\ne.g., id. at 898 (“Given the violence that [one defendant] had\nalready observed on the part of [the kingpin], including his\nputting of dynamite in her housemate[’s] . . . mouth, she was\nunder threat of immediate severe physical harm.”).\n\n The more difficult question was “whether a special\nvulnerability to fear—a vulnerability not produced by those\npersons causing the defendant’s criminal action—may be\ntaken into account.” Id. at 898 (emphasis added). We noted\nthat, “[a]s a defense to a charge of criminal conduct, such\nsubjective vulnerability has not been admitted.” Id. Our\nanalysis at this juncture was brief and opaque, however, as we\nprovided no elaboration on what constitutes a special,\nsubjective vulnerability to fear.\n\n Instead, we reasoned that there are factors related solely\nto the defendant—rather than to the coercing, threatening\nparty—that may be considered in the reasonableness inquiry.\nRelying on the Model Penal Code (MPC), we highlighted\n“[s]tark, tangible factors,” such as a person’s “size, strength,\nage, or health.” Id. (quoting MODEL PENAL CODE § 2.09 cmt.\n3 (AM. LAW INST. 1985)); see also MODEL PENAL CODE\n§ 2.09 cmt. 3 (“The [‘person of reasonable firmness’]\nstandard is not, however, wholly external in its reference;\naccount is taken of the actor’s ‘situation,’ a term that should\nhere be given the same scope it is accorded in appraising\nrecklessness and negligence.”). Indeed, a 5’ 3”, 100 lbs., 80-\nyear old individual will, all else equal, likely perceive a threat\nof physical violence differently than a 6’ 4”, 200 lbs., 25-year\nold. While we then acknowledged that the MPC did not list\n“gender as one of the ‘stark, tangible factors,’” we assured\nthat our analysis would demonstrate that “there are sets of\n\n14 UNITED STATES V. LOPEZ\n\ncircumstances in which gender is also a factor to be\nconsidered.” Johnson, 956 F.2d at 898.\n\n Once we turned to the claims raised by three of the female\ndefendants, it became evident that our mention of “gender”\nreferred to BWS evidence. At trial, one of the defendants,\nWood, “buttressed her contention of duress with the” expert\ntestimony of a psychologist who “had substantial experience\nin dealing with battered women.” Id. at 899. Summarizing\nthis testimony and the texts the psychologist cited, we\nexplained that BWS\n\n is a set of psychological and behavioral\n reactions exhibited by victims of severe,\n long-term, domestic physical and emotional\n abuse. L. Walker, The Battered Woman\n Syndrome (1984). Battered woman syndrome\n is not a mental disease or defect; rather,\n battered woman syndrome is a post-traumatic\n stress disorder. Its psychological effects are\n often similar to the effects of imprisonment on\n kidnap victims and prisoners of war. Once\n battered women believe themselves to be\n helpless victims of abusive men, they behave\n like hostages and link themselves to their\n captors out of fear that it is the only way to\n survive. Battered women are unable to\n respond effectively to violence because they\n are psychologically trapped in the violent\n relationship.\n\n Repeated beatings diminish the battered\n woman’s motivation to respond and instill in\n her a negative belief about the effectiveness of\n\n UNITED STATES V. LOPEZ 15\n\n her actions. This “learned helplessness”\n keeps the battered woman from leaving her\n batterer. One of the primary survival skills of\n battered women is hyperalertness. The\n battered woman learns to be sensitive to her\n environment to prevent further violence to\n herself. The development of survival skills,\n however, comes “at the expense of escape\n skills.” L. Walker at 33 & 87-89. Society\n often misinterprets the survival skills of\n battered women as signs of passivity and\n weakness coupled with an unwillingness to\n leave the violent relationship. Id. at 33. A\n common misunderstanding is that the battered\n woman’s responses are indicative of weak\n character. Rather, these responses must be\n seen as attempts to cope with the abusive and\n controlling environment in which she lives\n and from which she is helpless to escape.\n\nId.\n\n Although the duress defense did not sway the jury, we\nheld that the district court “should properly consider the\nindividual before the court and her particular vulnerability”\nin sentencing. Id. BWS evidence, we concluded, “has a\nparticular relation to the defense of duress as it has been\nexpanded by the commentary to the Model Penal Code.” Id.\nat 900. We highlighted the MPC’s citation to “[a] leading\nauthority on the common law [who] added that the defense\napplies when the defendant is so far ‘in thrall to some power’\nthat a legal sanction would be ineffective in controlling any\nchoice that may be made.” Id. (quoting GLANVILLE\nWILLIAMS, CRIMINAL LAW: THE GENERAL PART 755–62 (2nd\n\n16 UNITED STATES V. LOPEZ\n\ned. 1961)); see also MODEL PENAL CODE § 2.09 cmt. 2. We\ndescribed this model of duress as a “substantial expansion of\nthe defense,” which we cautioned “may go too far if not\nlinked to gross and identifiable classes of circumstances.” Id.\nBut we concluded that “[b]attered women are in\ncircumstances forming such a class.” Id.\n\n Regrettably, our discussion in Johnson of BWS provides\nno guidance on the appropriate role of such evidence in\nsupporting the affirmative defense of duress at trial. We\nnoted, without approval or disapproval, that Wood was\npermitted to call an expert on BWS, who testified not only on\nBWS generally, but opined that Wood “fitted the profile of a\nbattered woman.” Id. at 899.\n\n Nor did we add clarity in addressing the claims raised by\nthe other defendants. Johnson claimed that she should have\nbeen permitted either to call the same expert as Wood or\ncross-examine her. Id. at 901. We found no abuse of\ndiscretion in the exclusion of such evidence because the\nexpert had never examined Johnson and could only have\ntestified as to “a stereotype applied to a case she knew only\nin the most external way.” Id.\n\n The third defendant, Breck, also contended that the\ndistrict court erred in denying her a jury instruction on duress\nand by precluding her from calling the BWS expert on her\nown behalf. Id. at 902. Unlike the other two defendants who\nhad claimed duress, “Breck began to work for [the kingpin]\nwithout any overt threat on his part, and she continued to\nwork for him without such threats being made directly.” Id.\nRather, Breck’s defense relied solely on her testimony that\nshe had once seen his bodyguards strike a woman and had\n“herself heard on numerous occasions from [the kingpin] of\n\n UNITED STATES V. LOPEZ 17\n\nhis violent treatment of persons who crossed him.” Id. We\nupheld her conviction. Breck, we reasoned, “had not made\nout a prima facie case of duress because she had made no\nshowing that she could not far earlier have escaped [the\nkingpin], as she in fact finally did.” Id. Moreover, the expert\nwitness’ “testimony, going to [Breck’s] special subjective\nvulnerability, would not have established the lack of\nopportunity to escape that the defense of duress requires.” Id.\n\n Ultimately, we remanded all three defendants to the\ndistrict court for resentencing. Even though the defendants\nhad not proven their defense of duress at trial, the district\ncourt could take into account at sentencing their “subjective\nvulnerability” and, as appropriate, “depart downwards on the\ngrounds of incomplete duress.” Id. at 903.\n\n There is language in Johnson that lends support to the\ngovernment’s argument here that BWS evidence is\nincompatible with the duress defense’s objective\nreasonableness standard. See id. at 898. But we decline to\napply such a broad reading to our brief discussion of the three\ndefendants’ evidentiary challenges. Wood was permitted the\nuse of an expert to testify at trial as to BWS generally and as\nto Wood’s own profile. Id. at 899. Johnson was denied the\nuse of the same expert, in part because she wanted the expert\nto testify as to her motivation, and the expert had never\nexamined Johnson. Id. at 901. As to the third defendant,\nBreck, we held only that she lacked the elements of a prima\nfacie duress defense because she was not actually threatened\ndirectly by the drug kingpin and ultimately escaped. Id. at\n902.\n\n Unfortunately, our Johnson decision never elaborated on\nwhat it meant for Breck to have had a reasonable opportunity\n\n18 UNITED STATES V. LOPEZ\n\nto escape from the kingpin. We thus have no means of\ndiscerning what factors led us to conclude that Breck’s duress\ndefense was so lacking in evidentiary support that she failed\nto make out a prima facie case, nor can we discern how BWS\nevidence might have influenced those factors. If, for\ninstance, Breck had decided not to call the police at the first\nopportunity, then a decision holding that BWS evidence was\ninadmissable in assessing the reasonableness of her decision\nwould certainly be relevant to the case before us.\nUnfortunately, Johnson does not supply these answers. We\nmust, therefore, conclude that our holding was limited to the\ndearth of duress evidence in Breck’s case. We are unwilling\nto read Johnson as establishing a categorical bar on BWS\nevidence in support of a duress defense at trial; we think that\nreads too much into Johnson. See United States v. Marenghi,\n893 F. Supp. 85, 93 (D. Me. 1995) (“[T]he admissibility of\nexpert testimony during trial in a duress defense was not\nsquarely before the appellate court in Johnson”).\n\n Our conclusion is bolstered by United States v. Homick,\n964 F.2d 899 (9th Cir. 1992), which we decided mere months\nafter Johnson.4 There, a woman and her ex-husband were\ntried for wire fraud stemming from her falsified affidavit\nregarding stolen jewelry. 964 F.2d at 901–02. The female\ndefendant claimed that she acted under duress from her ex-\nhusband, and on appeal, contended “that the district court\n\n 4\n Our conclusion is also consistent with our non-BWS precedent,\nwhich has allowed consideration of factors unique to the defendant, rather\nthan the threatening party, in assessing whether the defendant had a\nreasonable opportunity to escape. See, e.g., Contento-Pachon, 723 F.2d\nat 694 (holding that it is the jury’s role to “decide whether one in [the\ndefendant’s] position might believe that some of the Bogota police were\npaid informants for drug traffickers and that reporting the matter to the\npolice did not represent a reasonable opportunity of escape”).\n\n UNITED STATES V. LOPEZ 19\n\nimproperly excluded expert testimony regarding battered\nwoman syndrome and thereby deprived her of her theory of\ndefense.” Id. at 905. We found no error in this exclusion, as\nthe wiretapped phone calls between her and her ex-husband\nrevealed “[t]here was nothing implicitly or explicitly\nthreatening about [their] conversation[s]” and she “readily\nagreed” to write the fraudulent affidavit. Id. at 906. In\nreaching this conclusion, we stated that “[t]he battered\nwoman defense is a species of the defense of duress.” Id. at\n905. And, citing to Johnson, “[w]e recognize[d] that the\nunique nature of battered woman syndrome justifies a\nsomewhat different approach to the way we have historically\napplied” the duress defense. Id. Homick thus adds little\nclarity to the proper role of BWS evidence at trial except for\nthis: It demonstrates that we have not viewed evidence of\nBWS as categorically incompatible with duress. Rather, as\nin Johnson, we rejected the defendant’s claim of duress based\non the lack of evidence supporting the affirmative defense.\n\n\n Here, Lopez testified that Karaca—a convicted felon\nfleeing from the police—threatened to harm her and her\nfamily if she failed to comply with his demands and that she\nfeared that he would carry out these threats if she went to the\npolice. Such evidence was more than sufficient to warrant a\nduress instruction, which Lopez received. We must therefore\naddress the question left unanswered in our prior decisions:\nwhat role BWS evidence may play in supporting the\naffirmative defense of duress.\n\n 2\n\n We do not begin from a blank slate. Because duress is a\ncommon-law defense, state and federal courts have long\n\n20 UNITED STATES V. LOPEZ\n\nopined on its application and parameters. See Johnson, 956\nF.2d at 897 (“The defense of duress is a common law concept\nthat federal criminal law has incorporated.”). Tellingly, the\ngovernment has cited to only one jurisdiction that\ncategorically bars BWS evidence in the duress context.5 In\nWillis, the Fifth Circuit held that BWS evidence is\n“inherently subjective” and thus incompatible with the duress\ndefense’s objective, reasonable-person standard. 38 F.3d at\n175. The court reasoned that\n\n [s]uch evidence is not addressed to whether a\n person of reasonable firmness would have\n succumbed to the level of coercion present in\n a given set of circumstances. Quite the\n contrary, such evidence is usually consulted to\n explain why this particular defendant\n succumbed when a reasonable person without\n a background of being battered might not\n have. Specifically, battered woman’s\n syndrome evidence seeks to establish that,\n because of her psychological condition, the\n defendant is unusually susceptible to the\n coercion.\n\n\n\n 5\n Curiously, the government also cites United States v. Smith, 987\nF.2d 888 (2d Cir. 1993). In that case the district court declined to appoint\nthe defendant a psychiatrist “on the ground that testimony as to [the\ndefendant’s] unusual susceptibility to coercion was irrelevant and\ninadmissible.” Smith, 987 F.2d at 891. The Second Circuit held this was\nerror: “A psychiatrist might have testified to other issues at trial and\nsentencing, including that [the defendant’s] behavior was not inconsistent\nwith his being under duress. . . . Explaining this behavior might have\nbolstered the credibility of his duress claim, which was relevant to the\njury’s determination.” Id.\n\n UNITED STATES V. LOPEZ 21\n\nId. (emphasis added); see also United States v. Dixon, 413\nF.3d 520, 523–24 (5th Cir. 2005) (applying Willis in a case\ninvolving facts similar to the instant case), aff’d on other\ngrounds, 548 U.S. 1 (2006).\n\n In contrast, in a recent case the D.C. Circuit observed that\n“[m]ost courts that have considered th[is] question—\nespecially in recent years—have recognized that expert\ntestimony on battered woman syndrome can be relevant to\nprove duress.” United States v. Nwoye, 824 F.3d 1129, 1136\n(D.C. Cir. 2016) (Kavanaugh, J.). In Nwoye, the D.C. Circuit\nconcluded that “expert [BWS] testimony can help a jury\nassess whether a battered woman’s actions were reasonable.”\nId. Reasonableness, the court explained, “is not assessed in\nthe abstract. Rather, any assessment of the reasonableness of\na defendant’s actions must take into account the defendant’s\n‘particular circumstances,’ at least to a certain extent.” Id. at\n1137 (emphasis added).\n\n Turning first to whether a defendant who suffers from\nBWS can have a well-grounded fear that the threat will be\ncarried out against her,6 the court explained that “women in\n\n 6\n The D.C. Circuit describes the duress defense as a two-element\ntest: (1) whether the defendant “acted under an unlawful threat of\nimminent death or serious bodily injury” and (2) whether “there was no\n‘reasonable, legal alternative to committing the crime.’” Nwoye, 824 F.3d\nat 1135 (quoting United States v. Nwoye, 663 F.3d 460, 462 (D.C. Cir.\n2011)). Because the D.C. Circuit has stated that reasonableness is a\ncomponent of both elements, id. at 1137, we interpret this test as the\nfunctional equivalent of our own three-part test. Its first element merely\ncombines the question of whether the defendant suffered “an immediate\nthreat of death or serious bodily injury” and whether she had “a\nwell-grounded fear that the threat will be carried out.” Johnson, 956 F.2d\nat 897. Moreover, we see no meaningful distinction between whether the\ndefendant had a “reasonable opportunity to escape the threatened harm,”\n\n22 UNITED STATES V. LOPEZ\n\nbattering relationships are often ‘hypervigilant to cues of\nimpending danger and accurately perceive the seriousness of\nthe situation before another person who had not been\nrepeatedly abused might recognize the danger.’” Id.\n(emphasis added) (quoting Lenore E.A. Walker, Battered\nWomen Syndrome and Self-Defense, 6 NOTRE DAME J.L.\nETHICS & PUB. POL’Y 321, 324 (1992)). Thus, “[r]emarks or\ngestures that may seem harmless to the average observer\nmight be reasonably understood to presage imminent and\nsevere violence when viewed against the backdrop of the\nbatterer’s particular pattern of violence.” Id.; see also\nMarenghi, 893 F. Supp. at 95 (“Providing the jury with\ninformation of specific incidents of abuse while providing no\ninformation about how such treatment can, over time,\nestablish a dynamic where the threat of abuse hovers over\nevery interaction between the individuals, even if such threat\nis not always articulated, would give the jury only half of the\nstory. In effect, [BWS] expert testimony may be\ncharacterized as explaining how a reasonable person can\nnonetheless be trapped and controlled by another at all times\neven if there is no overt threat of violence at any given\nmoment.”).\n\n As to the separate inquiry of whether a defendant has a\nreasonable opportunity to escape the threatened harm, the\nD.C. Circuit concluded that “battered women face significant\nimpediments to leaving abusive relationships. Most\nimportantly, battered women who leave their abusers risk a\nretaliatory escalation in violence against themselves or those\nclose to them—sometimes termed ‘separation abuse.’”\nNwoye, 824 F.3d at 1137–38 (quoting Mary Ann Dutton,\n\n\nid., and whether she had a “reasonable, legal alternative to committing the\ncrime,” Nwoye, 824 F.3d at 1135.\n\n UNITED STATES V. LOPEZ 23\n\nValidity of “Battered Woman Syndrome” in Criminal Cases\nInvolving Battered Women, in DEPARTMENT OF JUSTICE, ET\nAL., THE VALIDITY AND USE OF EVIDENCE CONCERNING\nBATTERING AND ITS EFFECTS IN CRIMINAL TRIALS pt. I, at\n14–15 (1996)). “Expert testimony on those impediments to\nseparation can help explain why a battered woman did not\ntake advantage of an otherwise reasonable-sounding\nopportunity to avoid committing the alleged crime.” Id. at\n1138 (emphasis added). Indeed, a defendant’s experiences\nmay lead her to “reasonably believe[] that reporting [the\nthreatening party] to the police (or others) would have been\nunlikely to result in his immediate arrest and would . . .\ntherefore place[] her at greater risk in the interim.” Id.\nat 1139.\n\n As the court in Nwoye observed, the majority of\ncourts—federal and state—that have addressed BWS in the\ncontext of a duress defense have concluded that such\nevidence is relevant and may be admitted. See, e.g., Dando\nv. Yukins, 461 F.3d 791, 801 (6th Cir. 2006); United States v.\nRamirez, 87 Fed. R. Evid. Serv. 1154 (D.P.R. 2012); United\nStates v. Ceballos, 593 F. Supp. 2d 1054, 1060–63 (S.D. Iowa\n2009); Marenghi, 893 F. Supp. at 91–97; Commonwealth v.\nAsenjo, 82 N.E.3d 966, 973–74 (Mass. 2017); Wonnum v.\nState, 942 A.2d 569, 572–73 (Del. 2007); State v. Williams,\n937 P.2d 1052, 1058 (Wash. 1997) (en banc). But see United\nStates v. Willis, 38 F.3d 170 (5th Cir. 1994); State v. Richter,\n424 P.3d 402 (Ariz. 2018); State v. B.H., 870 A.2d 273 (N.J.\n2005).\n\n This analysis of BWS as applied to duress also comports\nwith the way courts have long viewed self-defense, which is\nsimilar to duress in that both defenses “require a defendant to\ndemonstrate that she acted reasonably in response to a\n\n24 UNITED STATES V. LOPEZ\n\nreasonable fear of death or bodily injury.” Marenghi, 893 F.\nSupp. at 95; see Nwoye, 824 F.3d at 1138 (“Our conclusion\nis further supported by the decisions of the vast majority of\ncourts that have long held that expert testimony on battered\nwoman syndrome can be relevant in the analogous context of\nself-defense.”); Johnson, 956 F.2d at 900 (“The majority of\nstate courts that have considered the issue [of BWS] have\nadmitted expert testimony as to the syndrome on behalf of a\nwoman contending that she acted in self-defense.”); see also\nsee State v. Curley, No. 2016-KP-1708, 2018 WL 3154627,\nat 8 (La. June 27, 2018); Commonwealth v. Pike, 726 N.E.2d\n940, 948 (Mass. 2000); Boykins v. State, 995 P.2d 474,\n476–79 (Nev. 2000); People v. Humphrey, 921 P.2d 1, 8–9\n(Cal. 1996); People v. Wilson, 487 N.W.2d 822, 823–24\n(Mich. Ct App. 1992).\n\n In People v. Humphrey, the California Supreme Court\nconcluded that, by admitting BWS evidence in a self-defense\ntrial, it was “not changing the standard from objective to\nsubjective, or replacing the reasonable ‘person’ standard with\na reasonable ‘battered woman’ standard.” 921 P.2d at 9.\nRather, “[t]he jury must consider [a] defendant’s situation\nand knowledge, which makes the evidence relevant, but the\nultimate question is whether a reasonable person, not a\nreasonable battered woman, would believe in the need to kill\nto prevent imminent harm.” Id. (first emphasis added). As\nwith duress, “objective reasonableness” for self-defense\n“must view the situation from the defendant’s perspective.”\nId. at 8 (emphasis in original). “As violence increases over\ntime, and threats gain credibility, a battered person might\nbecome sensitized and thus able reasonably to discern when\ndanger is real and when it is not.” Id. at 9. “The cyclical\nnature of an intimate battering relationship enables a battered\nspouse to become expert at recognizing the warning signs of\n\n UNITED STATES V. LOPEZ 25\n\nan impending assault from her partner—signs frequently\nimperceptible to outsiders.” Id. at 17 (Brown, J., concurring)\n(emphasis added) (quotation marks and citation omitted).\nThus, “[a]lthough a jury might not find the appearances\nsufficient to provoke a reasonable person’s fear, they might\nconclude otherwise as to a reasonable person’s perception of\nthe reality when enlightened by expert testimony on the\nconcept of hypervigilance.” Id. (emphasis in original).\n\n On balance, we are persuaded that expert testimony on\nhow BWS can cause individuals to become hypervigilant to\nimpending harm does not, as the Fifth Circuit perceives, seek\nto alter the duress defense’s reasonable-person standard. See\nWillis, 38 F.3d at 175. The question is still whether or not “a\nperson of reasonable firmness in [the defendant’s] situation\nwould have been unable to resist.” MODEL PENAL CODE\n§ 2.09(1) (1985) (emphasis added). We acknowledge,\nhowever, that the “‘snapshot’ of circumstances” shown to the\njury is not limited to just those circumstances existing\nimmediately prior to the commission of the crime. Marenghi,\n893 F. Supp. 94. This court has long recognized that a\ndefendant’s particular situation includes consideration of past\nexperiences. See Johnson, 956 F.2d at 898 (“Fear which\nwould be irrational in one set of circumstances may be\nwell-grounded if the experience of the defendant with those\napplying the threat is such that the defendant can reasonably\nanticipate being harmed on failure to comply.” (emphasis\nadded)).\n\n Moreover, BWS evidence is compatible with assessing\nwhether a defendant had a reasonable opportunity to escape\nfrom the coercing party. As seen above, this inquiry often\nfocuses on why the defendant did not call the police at the\nfirst opportunity. See, e.g., Kuok, 671 F.3d at 949;\n\n26 UNITED STATES V. LOPEZ\n\nContento-Pachon, 723 F.2d at 694; see also Nwoye, 824 F.3d\nat 1133. Experts on BWS, however, have explained that:\n\n The battered woman’s perception of viable\n options for stopping the violence and abuse by\n any means is not only shaped by her own\n prior experience with violence, but also\n influences her future actions in response to\n violence. The perception or understanding of\n whether there are options available that would\n end the violence is based largely on what has\n actually been learned through experience.\n\nMary Ann Dutton, Understanding Women’s Responses to\nDomestic Violence: A Redefinition of Battered Woman\nSyndrome, 21 HOFSTRA L. REV. 1191, 1219 (1993). For\nexample, a woman may “‘learn[]’ during childhood that the\npolice [are] not a viable option to stop the violence even in an\nimmediate situation” if she “observed her mother call the\npolice on many occasions when her father beat her mother,\nonly to hear them say that since the situation was ‘a\ndomestic,’ they could not intervene.” Id. at 1220. Indeed, an\nineffective attempt to seek help will likely amplify a woman’s\nrisk of being harmed. See id. at 1119–20; see also Humphrey,\n921 P.2d at 3 (“[M]any battered women remain in the\nrelationship because of lack of money, social isolation, lack\nof self-confidence, inadequate police response, and a fear\n(often justified) of reprisals by the batterer.”).\n\n Because an “assessment of the reasonableness of a\ndefendant’s actions must take into account the defendant’s\n‘particular circumstances,’” Nwoye, 824 F.3d at 1137, a jury\nmay consider the defendant’s prior experience with police\nresponse to abuse in determining whether it was reasonable\n\n UNITED STATES V. LOPEZ 27\n\nfor her not to contact them once threatened by the coercing\nparty. We perceive no meaningful distinction between a jury\nconsidering such evidence and assessing whether it was\nreasonable for a defendant not to contact the police due to\nfear either that close family members will be harmed or that\nthe police are in league with the coercing party. See, e.g.,\nKuok, 671 F.3d at 949–50 (“[T]he government’s suggestion\nthat [the defendant] should have cooperated with the\nauthorities immediately upon landing in the Atlanta airport\nmay be unreasonable, given that [the defendant] knew his\nfamily was still in danger of being jailed by Chinese\ngovernment officials beyond the control of U.S. authorities”);\nContento-Pachon, 723 F.2d at 694 (“The trier of fact should\ndecide whether one in [the defendant’s] position might\nbelieve that some of the Bogota police were paid informants\nfor drug traffickers and that reporting the matter to the police\ndid not represent a reasonable opportunity of escape.”); see\nalso Nwoye, 824 F.3d at 1132 (“[The defendant] also testified\nthat she was afraid to report [the coercing party] to the police\nbecause [he] had told her that he was a former FBI agent.”).\n\n Although a defendant may testify to how her experiences\nshaped her perceptions, as the defendant was permitted to do\nin this case, this lay testimony is often insufficient to\neffectively mount a duress defense. “To effectively present\nthe situation as perceived by the defendant, and the\nreasonableness of her fear,” a defendant must often\n“overcome stereotyped impressions about women who\nremain in abusive relationships. It is appropriate that the jury\nbe given a professional explanation of the battering syndrome\nand its effects on the woman through the use of expert\ntestimony.” Humphrey, 921 P.2d at 9; see also Johnson, 956\nF.2d at 899 (“Society often misinterprets the survival skills of\nbattered women as signs of passivity and weakness coupled\n\n28 UNITED STATES V. LOPEZ\n\nwith an unwillingness to leave the violent relationship. A\ncommon misunderstanding is that the battered woman’s\nresponses are indicative of weak character.” (citation\nomitted)). We therefore conclude that expert testimony on\nBWS is relevant to supporting a defendant’s argument that\nshe had a well-grounded fear that she would be harmed if she\nfailed to commit the illegal act demanded of her and that she\nhad no reasonable opportunity to avoid committing the crime.\n\n Beyond directly buttressing the elements of duress, BWS\nis also relevant to the related issue of rehabilitating a\ndefendant’s credibility. Humphrey, 921 P.2d at 9; see also\nState v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) (citing\nstate cases in which “courts have admitted expert testimony\non” BWS for, inter alia, “the specific purpose of bolstering\nthe defendant’s position and lending credibility to her version\nof the facts”). Courts addressing “psychological states\nanalogous to BWS, such as rape trauma syndrome and child\nsexual abuse accommodation syndrome, . . . have generally\nheld expert opinion admissible for” the purpose of\n“disabus[ing] the jury of some widely held misconceptions\nabout [the] victims, so that it may evaluate the evidence free\nof the constraints of popular myths.” Humphrey, 921 P.2d at\n15 (Brown, J., concurring) (quotation marks and citations\nomitted). To this end, “[j]urors faced with testimony from a\nbattered woman concerning her abuse and its effects may\ndoubt the testimony because they do not believe that a woman\nsubject to such abuse would stay with her abuser without\nalerting police or others.” Nwoye, 824 F.3d at 1140. “Expert\ntestimony on battered woman syndrome” can help “dispel the\nordinary lay person’s perception that a woman in a battering\nrelationship is free to leave at any time.” Id. (quoting\nHumphrey, 921 P.2d at 9).\n\n UNITED STATES V. LOPEZ 29\n\n Moreover, BWS testimony can provide juries an\nunderstanding of why victims of abuse sometimes make\ninconsistent statements or act in ways that appear\ncounterintuitive to a layperson. For instance, in Arcoren v.\nUnited States, the key witness recanted at trial her prior grand\njury testimony that her husband, the defendant, had raped her.\n929 F.2d 1235, 1238 (8th Cir. 1991). The government then\nmoved to introduce expert testimony on BWS. It argued, and\nthe Eighth Circuit agreed, that such evidence would aid the\njury in determining the defendant’s credibility by providing\nthe jury an explanation for the victim’s change in testimony.\nId. at 1239. “As the [expert] witness told the jury, [BWS] is\na psychological condition, which leads a female victim of\nphysical abuse to accept her beatings because she believes\nthat she is responsible for them, and hopes that by accepting\none more beating, the pattern will stop.” Id. at 1240. The\nexpert testimony thus “provided the jury with information\nthat would help it to determine which” version of the victim’s\n“testimony to credit.” Id. Similarly, in the context of a child-\nabuse prosecution, we held that expert testimony on such\nabuse had “significant probative value in that it rehabilitated\n(without vouching for) the victim’s credibility after she was\ncross-examined about the reasons she delayed reporting and\nabout the inconsistencies in her testimony.” United States v.\nBighead, 128 F.3d 1329, 1331 (9th Cir. 1997). Expert\ntestimony on BWS could likewise rehabilitate the testimony\nof a domestic-abuse victim in cases of duress, regardless of\nwhether she is the defendant or a government witness.\n\n With this understanding of the appropriate role of BWS\nevidence in raising the affirmative defense of duress, we turn\nto the expert evidence proffered in this case.\n\n30 UNITED STATES V. LOPEZ\n\n 3\n\n Although Lopez’s proffer of Dr. Karp’s proposed\ntestimony—before trial, during trial and in her motion for a\nnew trial—was fairly cursory, it is evident that the testimony\nwould have comported with the permissible uses of BWS\nevidence. Dr. Karp attested that her testimony “would have\nprovided the jurors with information about . . . what the\ndynamics of the ‘hypervigilant’ behaviors experienced by\nabused women . . . are in deciding the dangerousness of the\nsituation.” If jurors harbored any doubt that Lopez had a\nwell-grounded fear that Karaca would harm her and her\nfamily if she failed to purchase a gun for him, this testimony\nmay have helped them understand why she “accurately\nperceive[d] the seriousness of the situation before another\nperson who had not been repeatedly abused might recognize\nthe danger.” Nwoye, 824 F.3d at 1137 (citation omitted).\n\n Moreover, Dr. Karp’s testimony would have supported\nLopez’s contention that she had no reasonable opportunity to\nescape from Karaca. Lopez testified at trial that her\nstepfather beat her, her mother, and her sisters on a near daily\nbasis and also sexually assaulted her. The police would often\n“take the report and leave,” and after one of the few occasions\nthey arrested her stepfather, “he was out the next day” and\n“broke into the house.” Lopez attributed these experiences to\nwhy she decided not to call the police after Karaca threatened\nher, explaining that she feared they would not help her and\nthat Karaca would discover that she had called them. The\ngovernment attempted to assail this point throughout its\nclosing argument, contending that Lopez’s fear “just doesn’t\nmake sense” and referring to her explanation as “really\nincredible.” Dr. Karp, however, attested that Lopez’s past\ntrauma “may have influenced [Lopez’s] feelings when she did\n\n UNITED STATES V. LOPEZ 31\n\nnot seek the help of the police, given her own trauma history\nof being sexually abused by her step-father and the police\nnever protecting her.” We, of course, offer no opinion as to\nwhether a jury would believe Lopez or, as the government\nargues, find her “really incredible,” but that is the jury’s role.\nKuok, 671 F.3d at 950. This proposed testimony would have\ntherefore aided the jury in assessing the reasonableness of\nLopez’s decision to buy Karaca the gun and not call the\npolice. See Nwoye, 824 F.3d at 1139 (“[The defendant] may\nhave reasonably believed that reporting [the coercing party]\nto the police (or others) would have been unlikely to result in\nhis immediate arrest and would have therefore placed her at\ngreater risk in the interim. Thus, [her] testimony concerning\n[his] abuse, supplemented by expert testimony on battered\nwoman syndrome, would have constituted ‘sufficient\nevidence from which a reasonable jury could find’ for [the\ndefendant] on a theory of duress.”).\n\n Similarly, Dr. Karp’s testimony could have rehabilitated\nLopez’s credibility in light of the government’s contention\nthat Lopez complied with Karaca, not out of fear of him, but\nto keep her “relationship [with him] alive[] [and] to keep her\ncontact with Karaca ongoing.” Indeed, the government\nhighlighted the fact that, when confronted by her probation\nofficer, Lopez referred to Karaca as “my man,” asserting that\nthis was why she bought the gun. This is precisely the type of\nbehavior that might appear outwardly inconsistent with being\na victim of domestic violence but can be placed in context\nthrough expert testimony “as to the dynamics involved in\nBattered Woman Syndrome and why Battered Women\nremain with abusive men.”\n\n We garner from the district court’s series of oral rulings\non the admissibility of Dr. Karp’s testimony that the court\n\n32 UNITED STATES V. LOPEZ\n\nperceived the question of admitting the BWS evidence as\n“close,” but ultimately concluded that it was categorically\nirrelevant to Lopez’s duress defense. In light of the foregoing\ndiscussion, this was an error of law, which constitutes an\nabuse of discretion. United States v. Finley, 301 F.3d 1000,\n1007 (9th Cir. 2002). “A non-constitutional error requires\nreversal unless there is a ‘fair assurance’ of harmlessness, or\nstated another way, unless ‘it is more probable than not that\nthe error did not materially affect the verdict.’”7 United\nStates v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015)\n(quoting United States v. Seschillie, 310 F.3d 1208, 1214 (9th\nCir. 2002)). The government argues that the exclusion of Dr.\nKarp’s testimony was harmless, contending that it would\nhave been cumulative of Lopez’s own testimony about her\npast abuse and its effect on her decisions.8 But as discussed\n\n\n 7\n Lopez argues that the exclusion of Dr. Karp’s testimony prevented\nher from raising a complete defense and thus amounted to constitutional\nerror, which requires “the Government [to] convince[] us that the error\nwas harmless beyond a reasonable doubt.” United States v. Stever, 603\nF.3d 747, 757 (9th Cir. 2010). Because we find sufficient prejudice under\nthe less onerous standard for non-constitutional errors, we need not reach\nthis issue.\n 8\n The government also briefly argues that the testimony should be\nexcluded under Federal Rule of Evidence 403 as unfairly prejudicial\nbecause it would “likely . . . elicit a sympathetic emotional response in the\njury that would have affected their verdict.” We have cautioned, however,\n“that the exclusion of evidence offered by the defendant in a criminal\nprosecution under Rule 403 is ‘an extraordinary remedy to be used\nsparingly.’” United States v. Haischer, 780 F.3d 1277, 1281 (9th Cir.\n2015) (quoting United States v. Mende, 43 F.3d 1298, 1302 (9th Cir.\n1995)). Lopez had already testified to the physical and sexual abuse\ninflicted by her stepfather. The proposed expert testimony would have\nmerely explained how this abuse affected her interactions with Karaca and\nthe police. We perceive no undue prejudice. In any event, that is a matter\nfor the district court to decide.\n\n UNITED STATES V. LOPEZ 33\n\nabove, expert testimony on BWS serves an important role in\nhelping dispel many of the misconceptions regarding women\nin abusive relationships. Such evidence was vital to Lopez’s\ndefense, which hinged on persuading the jury that she acted\nonly out of an objectively reasonable fear. We will therefore\nvacate Lopez’s conviction on all counts and remand for a new\ntrial.\n\n **\n\n We hold that expert testimony on BWS is not\ncategorically excludable and may be relevant to a defense of\nduress. We understand that our opinion leaves open many\nquestions concerning the proper scope of an expert’s\ntestimony on BWS. These questions will have to be\naddressed in the first instance by the district court.\n\n B\n\n Finally, we turn to Lopez’s argument that the district\ncourt erred in excluding the tape of her complete interview\nwith the ATF agents as inadmissable hearsay. Lopez moved\nthe district court several times before and during trial to admit\nthe entire interview, raising numerous theories of\nadmissibility. In her motion for a new trial, Lopez again\nargued that the entire taped interview should have been\nadmitted. She contended that the ATF agents’ statements\nwere non-hearsay because she offered them to show their\neffect on her as the listener rather than for the truth of the\nmatter asserted. For instance, one of the agents told Lopez\nduring the interview that Karaca “is not gonna touch you. He\nhas no power in here. He is gonna be in jail or dead within a\nweek.” Lopez argued, as she does on appeal, that such\nstatements would not have been offered to prove that Karaca\n\n34 UNITED STATES V. LOPEZ\n\ncould not harm her in jail, but rather to show that the\nstatements had the effect of making her feel safe, which\ntherefore led to her telling the agents about Karaca’s threats.\nLopez contended that this evidence would have helped her\ncounter the government’s argument at trial that the impact of\nspending a night in jail led to her fabricating a story of acting\nunder duress the very next day. In a brief oral ruling, the\ncourt denied the motion for a new trial, merely commenting\nas to this issue that the statements were “self-serving\nhearsay.”\n\n A district court’s evidentiary rulings are reviewed for\nabuse of discretion, United States v. Beydler, 120 F.3d 985,\n987 (9th Cir. 1997), as is its denial of a motion for a new trial,\nUnited States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011).\n“As a general rule, a party is prohibited from introducing a\nstatement made by an out-of-court declarant when it is\noffered at trial to prove the truth of the matter asserted.”\nTorres, 794 F.3d at 1059. Accordingly, an out-of-court\nstatement is not hearsay if offered for any purpose other than\nthe truth of whatever the statement asserts. See United States\nv. Sanchez-Lopez, 879 F.2d 541, 554 (9th Cir. 1989). One\ncommon application of this principle is admitting a\ndeclarant’s out-of-court statement for the purpose of\nestablishing what effect it had on the listener. See, e.g.,\nUnited States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991);\n2 MCCORMICK ON EVIDENCE § 249 (7th ed. 2016) (providing\nexamples).\n\n Lopez is correct that the ATF agents’ statements would be\nnon-hearsay if considered only in the context of assessing\ntheir impact on Lopez—i.e., convincing her that it was safe\nto speak to the agents about Karaca. This conclusion is\nunderscored by the fact that there would be little relevance to\n\n UNITED STATES V. LOPEZ 35\n\nthe truth of the agents’ statements that Karaca could not harm\nLopez while she was in jail. In contrast, the non-hearsay\napplication of these statements would be relevant to rebutting\nthe government’s argument that Lopez’s night in jail\nconvinced her to fabricate her duress story.\n\n Nonetheless, the district court did not err in excluding this\nevidence because Lopez consistently sought to introduce the\nvideo of the entire interview. This evidence would have\nundoubtedly consisted nearly exclusively of hearsay\nstatements, including those made by Lopez.9 There was no\nabuse of discretion.\n\n III. CONCLUSION\n\n The district court abused its discretion in categorically\nexcluding Lopez’s expert witness on Battered Woman\nSyndrome. Because we find that this error prejudiced her\ndefense, we VACATE her conviction on all counts and\nREMAND for a new trial.\n\n\n\n\n 9\n Lopez has not argued on appeal that her statements would be non-\nhearsay (e.g., under the exclusion for prior consistent statements) or would\nfall under a hearsay exception.\n\n36 UNITED STATES V. LOPEZ", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357826/", "author_raw": "BYBEE, Circuit Judge:"}, {"author": "RAWLINSON, Circuit Judge, dissenting", "type": "dissent", "text": "RAWLINSON, Circuit Judge, dissenting:\n\n I respectfully dissent. Although I absolutely support the\nuse of expert testimony on Battered Woman Syndrome in\nappropriate circumstances, I cannot say that the able district\ncourt judge in this case abused his discretion in determining\nthat the testimony was not admissible in the context of\nestablishing a duress defense, as opposed to the usual context\nof its admission - to establish self-defense.\n\n We start from the premise that we owe deference to the\ndistrict court’s evidentiary rulings, particularly in the realm\nof expert testimony. See Saravia v. Sessions, 905 F.3d 1137,\n1141 (9th Cir. 2018) (“Abuse-of-discretion review is highly\ndeferential to the district court. . . .) (citation omitted); see\nalso Skidmore v. Led Zeppelin, 905 F.3d 1116, 1136 (9th Cir.\n2018) (“District courts have broad discretion in making\nevidentiary rulings, including whether to allow expert\ntestimony. . . .) (citation and internal quotation marks\nomitted).\n\n A district court abuses its discretion if it commits an error\nof law or “reaches a result that is illogical, implausible, or\nwithout support in the inferences that may be drawn from the\nrecord.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010)\n(citation omitted); see also Mujica v. Airscan, Inc., 771 F.3d\n580, 589 (9th Cir. 2017) (same). If the district court commits\nno error of law “[t]he abuse of discretion standard requires us\nto uphold a district court determination that falls within a\nbroad range of permissible conclusions.” Kode, 596 F.3d at\n612 (citation omitted). In my view, the district court’s\ndecision to exclude the evidence was based on such a\n“permissible conclusion” that the evidence was inadmissible.\nId.\n\n UNITED STATES V. LOPEZ 37\n\n The proposed testimony from Dr. Cheryl Karp focused on\nthe defendant’s history of having been “sexually abused by\nher step-father and the police never protecting her.”\nHowever, our precedent has not characterized evidence of\nthis nature as relevant to a duress defense.\n\n In United States v. Homick, 964 F.2d 899, 905 (9th Cir.\n1992), we recognized that the battered woman defense “is a\nspecies of the defense of duress.” In that case, the defendant\nsought to have expert testimony admitted to establish that her\nex-husband, who was charged with the murder of the victims,\ncoerced her into participating in the charged offenses through\n“his complete domination over her.” Id. at 902, 905. We\nultimately concluded that any error in excluding the proffered\nexpert testimony was harmless because the two recorded\ntelephone conversations between the defendant and her ex-\nhusband reflected ready acquiescence, with “nothing\nimplicitly or explicitly threatening about either conversation.”\nId. at 906.\n\n Notably, in Homick we addressed battered woman\nsyndrome in the context of a defense tethered to the co-\nperpetrator, who was alleged to be the duressor. See id. at\n902, 905. Similarly, in United States v. Johnson, 956 F.2d\n894 (9th Cir. 1992), superseded on other grounds in Martinez\nv. Martinez, 369 F.3d 1076, 1089 (9th Cir. 2004), we\nconsidered the duress defense in the context of women\nconvicted of drug offenses, who asserted that the drug\nkingpin for whom they worked abused and “psychologically\nthreatened” them. Id. at 901–02. We phrased the issue in the\nfollowing manner: “The question, relevant to the defense of\nduress in the cases before us, is whether a special\nvulnerability to fear—a vulnerability not produced by those\npersons causing the defendant’s criminal action—may be\n\n38 UNITED STATES V. LOPEZ\n\ntaken into account.” Id. at 898. We resolved the issue by\nanswering the question in the negative: “As a defense to a\ncharge of criminal conduct, such subjective vulnerability has\nnot been admitted.” Id. (emphasis added).\n\n In other words, we held in Johnson that evidence of\nsubjective vulnerability “not produced by” the named\nduressor is not admissible to establish the affirmative defense\nof duress. Id. Rather, such evidence may be used at\nsentencing. See id. (“[A] purely subjective element that\ncannot be taken into account in determining criminal liability\nmay be taken into account in sentencing. . . .”) (citations\nomitted).\n\n The real takeaway from our holding in Johnson is that the\nexpert testimony addressing Battered Woman Syndrome must\naddress vulnerability “produced by” the named duressor. Id.\nAnd that holding, in my view, solidifies why the district court\nin this case acted within its discretion by excluding the\nproffered expert testimony. As discussed, the record reflects\nonly that the testimony would focus on the defendant’s\nhistory of having been “sexually abused by her step-father\nand the police never protecting her.” Because her step-father\nwas not the named duressor for the crime for which she was\non trial, our reasoning in Johnson rendered the district court’s\nexclusion of the proffered evidence a “permissible\nconclusion” under our precedent. Kode, 596 F.3d at 612.\n\n The majority seeks to avoid our holding in Johnson by\nexpressing its “unwilling[ness] to read Johnson as\nestablishing a categorical bar on [Battered Woman\nSyndrome] evidence in support of a duress defense at trial.”\nMajority Opinion, p.18. But Johnson does not purport to\nestablish a categorical bar on Battered Woman Syndrome\n\n UNITED STATES V. LOPEZ 39\n\nevidence. Rather, it limits admissibility of that evidence to\ncircumstances where the individual producing the\nvulnerability to duress is the same as the named duressor for\nthe offense being defended. See Johnson, 956 F.2d at 898.\nAnd as a three-judge panel, we are bound to follow the\nprecedent of our court, no matter how unwilling we may be\nto hew to our past decisions, or how unpalatable the result\nmay be. See Lair v. Bullock, 798 F.3d 736, 747 (9th Cir.\n2015), as amended (“[W]e are bound by a prior three-judge\npanel’s published opinions . . .”) (citing Miller v. Gammie,\n335 F.3d 889, 892–93 (9th Cir. 2003 (en banc)).\n\n The majority also relies on Homick to bolster its disregard\nof our analysis in Johnson. See Majority Opinion, pp. 18–19,\n39. But as the majority must acknowledge, “Homick . . . adds\nlittle clarity to the proper role of [Battered Woman\nSyndrome] evidence at trial . . .” Majority Opinion, p.19.\nIndeed, other than a cf. citation to Johnson, the panel in\nHomick did not grapple at all with the analysis in Johnson.\nRather, the Homick panel resolved the issue by noting that the\nfacts in Homick did not “fall within the scope of any\nreasonable approach to the battered woman defense, no\nmatter how we modify the traditional duress standards.” 964\nF.2d at 905–906 (emphasis added). Nevertheless, it is notable\nthat the Homick case fit within the parameters of the Johnson\nanalysis: a battered woman defense tethered to the alleged\nduressor. See Homick, 964 F.2d at 902, 905.\n\n The only other circuit to substantively address this issue\nis the Fifth Circuit.1 In United States v. Willis, 38 F.3d 170,\n\n\n 1\n The majority opinion cites to a case from the D.C. Circuit, United\nStates v. Nwoye, 824 F.3d 1129 (D.C. Cir. 2016). However, that case\naddressed the issue in the context of a claim of ineffective assistance of\n\n40 UNITED STATES V. LOPEZ\n\n176 (5th Cir. 1994), the Court relied on our Johnson decision\nto hold that subjective evidence of vulnerability is irrelevant\nto the duress defense in determining criminal liability.\nAdmittedly, the Fifth Circuit did not acknowledge our\nexplanation that the evidence attesting to subjective\nvulnerability is only subjective when the “vulnerability is not\nproduced by those persons causing the defendant’s criminal\naction.” Johnson, 956 F.2d at 898. Nevertheless, the analysis\nis consistent with Johnson because the Fifth Circuit similarly\nfocused on the irrelevance of subjective evidence in meeting\nthe objective standard required to establish a duress defense.\nSee Willis, 38 F.3d at 175.\n\n The expert testimony proffered by the defendant in this\ncase hinged on the childhood abuse suffered by the defendant\nat the hands of her step-father. In an affidavit, Dr. Karp\ndescribed how she would have testified:\n\n My testimony would have provided the\n jurors with information about the cycle of\n violence, how battered women behave when\n under duress, and what the dynamics of the\n “hyper-vigilant” behaviors experienced by\n abused women, as part of the dynamics of\n PTSD, are in deciding the dangerousness of\n the situation.\n\n\n\n\ncounsel, and says nothing more than that Battered Woman Syndrome\nevidence “would have entitled [the defendant] to a jury instruction on\nduress.” Id. at 1135. Nothing about that statement is inconsistent with our\nanalysis in Johnson, especially considering that the batterer and the\nduressor were one and the same in Nwoye. See id. at 1131.\n\n UNITED STATES V. LOPEZ 41\n\n My testimony would also have given the\n jury an opportunity to hear from an expert on\n Trauma and how that may have influenced\n [defendant’s] feelings when she did not seek\n the help of the police, given her own trauma\n history of being sexually abused by her step-\n father and the police never protecting her.\n [Defendant] felt they would not protect her or\n believe her, given her prior childhood history\n of trauma and never being “heard” or\n “protected” by law enforcement. The jury\n should have been given an explanation by an\n expert to understand how [Defendant’s]\n childhood abuse influenced her decision-\n making.\n\n It is enlightening to consider what the expert did say in\nher affidavit and what she did not say. She did say that the\nsource of Defendant’s PTSD was her step-father. She did not\nsay that the source of her PTSD was the named oppressor. In\nfact, the named oppressor was not mentioned once in the\nexpert’s affidavit. She did pinpoint the time of the trauma as\nDefendant’s childhood. She did not point to any trauma\nduring adulthood. Clearly, the focus of the expert was the\ndefendant’s childhood, specifically the sexual abuse inflicted\nupon the defendant when she was a child. This is precisely\nthe type of “subjective vulnerability” evidence that Johnson\nheld was not relevant to a duress offense. See 956 F.2d at\n898.\n\n I am not persuaded by the cases cited by the majority,\nparticularly in view of the binding precedent in this circuit\nthat supports the decision of the district court.\n\n42 UNITED STATES V. LOPEZ\n\n In Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006), the\nadmissibility of similar evidence was decided in the context\nof a claim of ineffective assistance of counsel, see id. at 798.\nThe Sixth Circuit concluded that defense counsel “failed . . .\nto adequately investigate the availability of a duress defense\nand the related possibility that [the defendant] suffered from\nBattered Women’s Syndrome.” Id. However, this Sixth\nCircuit case actually fits within the holding of Johnson,\ninasmuch as the defendant in Dando asserted that her co-\nperpetrator and duressor were one and the same. See id.; see\nalso Johnson, 956 F.2d at 898 (explaining that the proffered\nexpert testimony must address vulnerability “produced by”\nthe duressor to be relevant). In any event, the Sixth Circuit\nexpressly noted that the issue of allowing evidence of\nBattered Woman Syndrome to establish a duress defense had\nnot been “addresse[d] either way” under Michigan law. See\nDando, 461 F.3d at 801. This case absolutely does not\nsupport a conclusion that the district court in our case abused\nits discretion in disallowing the proffered testimony.\nSimilarly, the non-binding district court case of United States\nv. Ramirez, No. 10-344 (PG), 2012 WL 733973 at 1\ninvolved a co-perpetrator who was also the named duressor,\nas did the non-binding cases of United States v. Ceballos, 593\nF. Supp. 2d 1054, 1060–63 (S.D. Iowa 2009); and United\nStates v. Marenghi, 893 F. Supp. 85, 97 (D. Maine 1995).\n\n The non-binding state court cases are also singularly\nunpersuasive because they rely upon state statutes specifically\naddressing the admissibility of evidence establishing Battered\nWoman Syndrome. See Commonwealth v. Asenjo, 82 N.E.3d\n966, 973 (Mass. 2017) (“G.L.C. 233 § 23F, provides the\ndefendant the statutory right to present [evidence of Battered\nWoman Syndrome]”); see also Wonnum v. State, 942 A.2d\n569, 573 (Del. 2007) (referencing Del. Code §§ 303 and 304);\n\n UNITED STATES V. LOPEZ 43\n\nState v. Williams, 937 P.2d 1052, 1058 (Wash. 1997) (en\nbanc) (involving a statutory duress defense and a co-\nperpetrator who was also the named duressor). Importantly,\nthe Supreme Court of Arizona, the state where Lopez\ncommitted her crime, has recently ruled that similar expert\ntestimony is not admissible under Arizona law. See State v.\nRichter, 424 P.3d 402, 404 (Ariz. 2018).\n\n In sum, none of the non-binding cases relied upon by the\nmajority, singly or in combination, are sufficiently persuasive\nthat the district court was compelled to admit the proffered\nexpert testimony. This is especially true considering that the\ndistrict court’s decision fit squarely within our binding\nprecedent, as the proffered testimony was not linked by the\nexpert to the asserted duressor. See Johnson, 956 F.2d at 898\n(explaining that the proffered expert testimony must address\nvulnerabilities that are “produced by” the duressor). And the\ndistrict court’s decision was consistent with precedent from\nthe highest court in the state where the crime was committed.\nSee Richter, 424 P.3d at 404.\n\n Under the deferential abuse of discretion standard of\nreview, it cannot be fairly said that the district court\ncommitted an error of law, because its decision did not run\nafoul of any binding precedent, and the non-binding\nprecedent relied on by the majority was singularly\nunpersuasive. Indeed, the district court’s decision was\nactually consistent with Ninth Circuit precedent and Arizona\nprecedent. Largely for the same reason, the district court’s\ndecision was not “illogical, implausible, or without support in\nthe inferences that may be drawn from the record.” Kode,\n596 F.3d at 612. Rather the district court’s decision fell\n“within a broad range of permissible conclusions.” Id. I\nwould affirm the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357826/", "author_raw": "RAWLINSON, Circuit Judge, dissenting"}]}	JOHNNIE B RAWLINSON	JAY S BYBEE	PAUL L FRIEDMAN	1		{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580573/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Lashay Lopez\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 16-10261\n Plaintiff-Appellee,\n D.C. No.\n v. 4:14-cr-01750-RCC-\n DTF-1\n LASHAY MARIE LOPEZ,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Raner C. Collins, Chief Judge, Presiding\n\n Argued and Submitted November 17, 2017\n San Francisco, California\n\n Filed January 10, 2019\n\n Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit\n Judges, and Paul L. Friedman,* District Judge.\n\n Opinion by Judge Bybee;\n Dissent by Judge Rawlinson\n\n\n\n\n \n The Honorable Paul L. Friedman, United States District Judge for\nthe District of Columbia, sitting by designation.\n\n2 UNITED STATES V. LOPEZ\n\n SUMMARY\n\n\n Criminal Law\n\n The panel vacated a conviction for false statement during\nthe purchase of a firearm, aggravated identity theft, and felon\nin possession of a firearm, in a case in which the only issue\nbefore the jury was the affirmative defense of duress.\n\n The panel held that expert testimony on Battered Woman\nSyndrome may be used by a defendant to support her duress\ndefense and rehabilitate her credibility, that the district court\ntherefore erred in precluding the defendant’s expert witness\nfrom testifying, and that this decision was prejudicial to her\ndefense.\n\n The panel held that the district court did not abuse its\ndiscretion by excluding a video of the defendant’s entire\ninterview in jail with ATF agents, where the evidence would\nhave consisted nearly exclusively of hearsay statements,\nincluding those made by the defendant.\n\n Dissenting, Judge Rawlinson could not say that the\ndistrict judge abused his discretion in determining that the\nexpert testimony on Battered Woman Syndrome was not\nadmissible in the context of establishing a duress defense, as\nopposed to the usual context of its admission—to establish\nself-defense.\n\n The panel remanded for a new trial.\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n UNITED STATES V. LOPEZ 3\n\n COUNSEL\n\nMichael L. Burke (argued), Assistant Federal Public\nDefender; Jon M. Sands, Federal Public Defender; Office of\nthe Federal Public Defender, Phoenix, Arizona; for\nDefendant-Appellant.\n\nErica Anderson McCallum (argued), Assistant United States\nAttorney; Robert L. Miskell, Appellate Chief; Elizabeth A.\nStrange, Acting United States Attorney; United States\nAttorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nBYBEE, Circuit Judge:\n\n Defendant-Appellant Lashay Marie Lopez was convicted\non three federal charges stemming from her purchase of a\nfirearm through the use of false identification (ID). Because\nLopez admitted to the offense conduct, the only issue before\nthe jury was the affirmative defense of duress. Lopez claims\nthat she purchased a handgun for Hector Karaca using her\nidentical twin sister’s ID in violation of her probation and\nfederal law because Karaca threatened to harm Lopez and her\nfamily if she failed to acquire a gun for him.\n\n In support of her duress defense, Lopez asked the district\ncourt to allow her to introduce expert testimony on Battered\nWoman Syndrome (BWS) and the effects of past abuse.\nLopez, who had been physically and sexually abused by her\nstepfather, contended that this evidence would “help provide\ncontext” to the jury regarding her fear of Karaca and why she\ndid not seek help from the police. Lopez similarly asserted\n\n4 UNITED STATES V. LOPEZ\n\nthat the expert’s description of the “characteristics of [a]\ndomestic violence victim” would help explain her\n“counterintuitive” behavior regarding Karaca. The court,\nhowever, excluded this evidence in a series of oral rulings,\nconcluding that BWS evidence is incompatible with the\nduress defense’s use of an objective reasonable-person\nstandard.\n\n We join the weight of authority in holding that such\nexpert testimony may be used by a defendant to support her\nduress defense and rehabilitate her credibility. We therefore\nfind that the district court committed legal error in precluding\nLopez’s expert witness from testifying and conclude that this\ndecision was prejudicial to her defense. Accordingly, we\nvacate her conviction and remand this case to the district\ncourt for a new trial.\n\n I. FACTS AND PROCEEDINGS\n\n A\n\n Lopez, who was twenty-seven years old at the time of the\ncrimes at issue, dated Karaca when the two were teenagers.\nThe relationship ended when Karaca was sentenced to eight-\nyears imprisonment in 2006 for a convenience-store\nshooting.1 Karaca was released from prison during the Fall of\n2013, but mere weeks later, police were searching for him in\nconnection with a double homicide in Phoenix, Arizona.\n\n In November 2013, Karaca arrived at Lopez’s home in\nTucson, where she lived with her mother, her identical twin\n\n 1\n It was, however, disputed at trial whether the two remained in\ncontact while he was in prison.\n\n UNITED STATES V. LOPEZ 5\n\nsister, her sister’s two young children, and a teenage sibling.\nKaraca and Lopez spoke for several hours and drank together.\nKaraca eventually admitted to Lopez that night that he was\n“on the run” from the police due to a shooting and asked her\nif she knew where he could get a gun. She told him she did\nnot, and Karaca accepted her answer. He later began making\nsexual advances towards Lopez, suggesting that they restart\ntheir relationship. Lopez initially rejected these overtures,\ntelling Karaca that she was currently involved with someone\nelse. Lopez “push[ed] him away” and “told him no . . . but he\ndidn’t stop” and “so [Lopez] just gave in.” Karaca eventually\nleft without further incident.\n\n Two days later, however, Karaca returned to Lopez’s\nhome and again asked her about acquiring a gun. She\nexplained to him at this point that she could not purchase a\ngun or “be around” one because she was on probation on a\nfelony drug conviction. Karaca responded by grabbing Lopez\nby the arm and threatening that, if she failed to get him a gun,\n“he[] [would] come back and shoot up [her] house and he\n[would] hurt [her] family.” Several days later, Karaca\nreturned to Lopez’s home and was limping. He told her that\nhe was in a “shootout” in the desert during a drug deal and\nwas shot in the leg. Lopez later testified at her trial that\nKaraca’s reference to a “shootout” made her believe that he\nalready had a gun, which increased her fear that he would\nharm her family.\n\n Four days later, Karaca returned and demanded that\nLopez purchase a gun for him that day from a nearby\npawnshop. She again responded that she was on probation.\nKaraca then insisted that Lopez pose as her identical twin\nsister during the purchase, demanding that they go to Lopez’s\nhome and retrieve her sister’s ID. After Lopez made various\n\n6 UNITED STATES V. LOPEZ\n\nexcuses as to why she could not obtain the ID that day,\nKaraca grabbed her again and threatened: “I already told you\nwhat I was going to do if you don’t get this gun for me. I\nknow you don’t want anything happening to your mom or\nyour sisters.” The two retrieved the ID and went to the\npawnshop that same day, where Lopez purchased a Ruger\npistol using the ID and her sister’s identifying information.\nShortly after she left the store, Karaca grabbed her purse,\nremoved the gun, and walked away.\n\n Two days later, Lopez saw Karaca one last time before\nher arrest. The two went together to a family barbeque hosted\nby her twin sister’s ex-husband, who was also Karaca’s\nfriend. The three left the party at one point to go to the store,\nwhere Karaca accused Lopez of flirting with her sister’s ex-\nhusband and slapped her in the face. Karaca initially left but\neventually returned to the party. Later that evening, Karaca\ngrabbed Lopez’s arm and told her he would “f--- [her] up, and\nno one will do anything about it.”\n\n Twelve days after purchasing the gun for Karaca, Lopez\nmet with her probation officer and a U.S. Marshal, who was\nsearching for Karaca. Lopez initially denied knowing\nKaraca, but after the probation officer found the pawnshop\nreceipt in Lopez’s purse, she admitted that she had purchased\na gun for Karaca. Lopez also stated she was seeing Karaca\nromantically, referring to him at one point as “my man.”\nLopez did not explain to the officers at this juncture why she\nhad bought the gun for Karaca and did not claim that Karaca\nhad threatened her. After refusing to provide them with any\nspecifics on Karaca’s location, Lopez was sent to jail. She\nlater explained at trial that she was afraid that Karaca would\nharm her if he discovered she had spoken to the authorities.\n\n UNITED STATES V. LOPEZ 7\n\n The following day, two agents with the Bureau of\nAlcohol, Tobacco, Firearms, and Explosives (ATF)\ninterviewed Lopez in a private room in the jail. For the first\ntime, Lopez claimed that she had purchased the gun for\nKaraca because he had threatened her and her family. She\nalso informed the agents that Karaca had told her he had\nanother gun. At trial, Lopez claimed that she only told the\nATF agents these details—as opposed to her probation officer\nthe previous day—because she felt “safer in the jail”:\n“[Karaca] can’t get me when I’m . . . in jail. There is no way\nof him getting ahold of me and finding out what I’m saying”\nto the agents. Shortly thereafter, the police located Karaca in\nTucson. He stole a vehicle using the gun purchased by Lopez\nand led the police on a lengthy car chase, which ended with\nKaraca taking his own life.\n\n B\n\n In late 2014, Lopez was indicted on three federal charges:\n(1) false statement during the purchase of a firearm under\n18 U.S.C. §§ 922(a)(6), 924(a)(2); (2) aggravated identity\ntheft under 18 U.S.C. §§ 1028A(a)(1), (c)(3); and (3) felon in\npossession of a firearm under 18 U.S.C. §§ 922(g)(1),\n924(a)(2). The case proceeded to a jury trial. Lopez\nstipulated to many of the elements of these offenses and\nconceded that she purchased the firearm using the false ID.\nHer trial strategy thus consisted entirely of proving that she\nacted under duress as a result of Karaca’s threats against her\nand her family.\n\n “Duress is not a statutory defense, but a common-law\ndefense that allows a jury to find that the defendant’s conduct\nis excused, even though the government has carried its burden\nof proof.” United States v. Kuok, 671 F.3d 931, 947 (9th Cir.\n\n8 UNITED STATES V. LOPEZ\n\n2012). In order to establish the defense, a defendant bears the\nburden of proving three elements by a preponderance of the\nevidence: “(1) [s]he was under an immediate threat of death\nor serious bodily injury, (2) [s]he had a well grounded fear\nthat the threat would be carried out, and (3) [s]he had no\nreasonable opportunity to escape.” Id.; see also United States\nv. Navarro, 608 F.3d 529, 532 (9th Cir. 2010); United States\nv. Johnson, 956 F.2d 894, 897 (9th Cir. 1992), superseded by\nregulation on other grounds; United States v.\nContento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984)). If\nsuccessful, a defendant is “legally excuse[d]” of the crime\ncommitted and must be found not guilty. Navarro, 608 F.3d\nat 532–33.\n\n Prior to trial, Lopez advised the district court of her intent\nto introduce testimony from Dr. Cheryl Karp, an expert “on\nissues of trauma, domestic violence, and victim behaviors.”\nLopez asserted that Dr. Karp’s testimony would assist the\njury “in understanding the evidence because . . . the trial\n[would] involve evidence as to coercion and threats of\nviolence leading up to the day Karaca took her from her home\nand forced her to purchase a firearm for him.” Lopez further\ncontended that Dr. Karp’s testimony regarding “behaviors of\nvictims of domestic violence” would “help provide context”\nto her duress defense, including whether her fear of Karaca\nwas “well-grounded” and whether she had a “reasonable\nopportunity” to escape from him. Finally, Lopez asserted that\nDr. Karp’s testimony would “liken to that of standard\ngovernment expert testimony in a domestic violence case\nwhere there is the counter-argument that the victim’s\nbehavior was not consistent or credible victim behavior.”\n\n The government moved in limine to exclude this\ntestimony, primarily arguing that the testimony would be\n\n UNITED STATES V. LOPEZ 9\n\nirrelevant because the duress defense applies an objective\nstandard. In an oral ruling, the district court described the\nissue as “pretty close” but ultimately granted the\ngovernment’s motion: “I don’t see how [Dr. Karp] can do\nanything to tell this jury how a reasonable person would have\nacted under the circumstances, so I’m not letting her in for\nthat purpose.” Lopez moved for reconsideration at several\npoints during trial, which the court orally denied each time.\nThe district court did, however, instruct the jury on the duress\ndefense and permitted Lopez herself to testify about how her\nexperience as an abuse victim influenced her interactions with\nKaraca.\n\n After the jury rendered a guilty verdict on all counts,\nLopez moved for a new trial, arguing in part that the\npreclusion of Dr. Karp’s testimony prejudiced her defense.\nIncluded with the motion was Dr. Karp’s affidavit, in which\nshe provided more detail as to her intended testimony.\nSpecifically, Dr. Karp asserted that “[t]he jury [did] not have\nthe proper knowledge base to understand some of the\npsychological explanations as to the dynamics involved in\nBattered Woman Syndrome and why Battered Women\nremain with abusive men, including the theory of Learned\nHelplessness.” She further attested that her “testimony would\nalso have given the jury an opportunity to hear from an expert\non Trauma and how that may have influenced [Lopez’s]\nfeelings when she did not seek the help of the police, given\nher own trauma history of being sexually abused by her step-\nfather and the police never protecting her.” The court denied\nthe motion in an oral ruling.\n\n The court eventually sentenced Lopez to a combined 30-\nmonths imprisonment. Lopez filed a timely appeal, and we\nhave jurisdiction under 28 U.S.C. § 1291.\n\n10 UNITED STATES V. LOPEZ\n\n II. ANALYSIS\n\n Lopez claims that two erroneous evidentiary rulings\nprejudiced her duress defense. First, she argues that the\ndistrict court erroneously excluded Dr. Karp’s testimony\nregarding BWS. Because we hold that the district court\ncommitted reversible error by barring this expert testimony,\nwe devote the bulk of our discussion below to addressing why\nsuch evidence is generally admissible. We then conclude by\nbriefly addressing (and ultimately rejecting) Lopez’s separate\nargument that the district court erred by excluding a video of\nher entire interview in jail with the ATF agents.2\n\n A\n\n Lopez argues that Dr. Karp’s testimony supports two\nelements of the duress defense: (1) whether Lopez had a\nwell-grounded fear that Karaca would harm her and her\nfamily if she refused to purchase a gun for him and (2)\nwhether she had a reasonable opportunity to escape from him\nby calling the police. The government continues to counter\nthat BWS evidence is incompatible with a duress defense\n\n 2\n Lopez also claims that the government engaged in prosecutorial\nmisconduct during its cross examination of her by stating, in response to\none of her answers, “Well, that’s just a lie right now” and, at several other\npoints, “Does that make sense?” Although the district court gave the jury\na curative instruction—“that what the lawyers said in their questioning and\ncross-examination is not evidence”—Lopez contends that the court should\nhave cited the prosecutor’s specific comments. On appeal, the\ngovernment concedes that the “that’s just a lie” comment was improper\nbut contends that the curative instruction was sufficient and that any\npotential error was harmless. Given the government’s concession and the\nfact that we are remanding for a new trial, we need not address this claim.\nSimilarly, we also decline to address Lopez’s claim of cumulative error.\n\n UNITED STATES V. LOPEZ 11\n\nbecause both aforementioned elements assess objective\nreasonableness. See United States v. Willis, 38 F.3d 170, 176\n(5th Cir. 1994); Johnson, 956 F.2d at 898. BWS, the\ngovernment argues, reflects only a defendant’s “subjective\nvulnerability.”\n\n Like the majority of courts that have addressed this\nquestion, we are unpersuaded by this proposed distinction.\nBefore turning to these authorities, however, we must first\naddress our decision in Johnson, which the government\nargued before the district court controls this question.3\n\n 1\n\n Johnson involved several female defendants who were\nconvicted for their nominal participation in a violent drug\norganization. 956 F.2d at 897. Three of the defendants—\nWood, Johnson, and Breck—had claimed that they acted\nunder duress from the organization’s “kingpin,” who\nthreatened and assaulted two of the defendants and their\nimmediate family members. Id. at 897–99, 901–02. The\ndistrict court permitted testimony on BWS from an expert on\nbehalf of Wood, but denied Johnson and Beck the opportunity\nto call an expert or cross-examine Wood’s expert. Id.\nBecause the jury nonetheless found all three defendants\nguilty, “[t]he dominant issue on the appeals of” these\n\n 3\n The government sparingly cites Johnson on appeal, and it no\nlonger appears to assert that we decided in Johnson that BWS supports\nevidence only of subjective reasonableness. But because at least one other\ncourt has interpreted Johnson in this manner, we must ensure that we are\nnot bound by our prior decision. See Willis, 38 F.3d at 175 (“[T]he\nJohnson court found that subjective evidence of the battered woman’s\nsyndrome could not be taken into account in determining criminal liability\nand thus could not upset the convictions.”).\n\n12 UNITED STATES V. LOPEZ\n\ndefendants was “the duress defense as it interacts with\nsentencing.” Id. at 897. Indeed, we remanded these\ndefendants’ cases for resentencing, in part, because the\ndistrict court erroneously believed that it lacked the authority\nunder the sentencing guidelines to depart downward based on\nduress if a defendant failed to prove the affirmative defense\nat trial. Id. at 900–03.\n\n Before addressing each defendant’s claims, we discussed\nthe principles underlying duress generally. We specified that\nthe defense applies an objective, reasonable-person standard:\n\n The formula is addressed to the impact of\n a threat of force upon a reasonable person:\n The fear must be “well-grounded.” There\n must be no “reasonable” opportunity to\n escape. The formula is in harmony with the\n analysis of duress in the Model Penal Code\n which recognizes duress in the use of\n unlawful force “that a person of reasonable\n firmness in his [or her] situation would have\n been unable to resist.” American Law\n Institute, Model Penal Code § 2.09(i) (1985).\n\nId. at 898. In determining whether a fear is well-grounded,\nthe jury may “take into account the objective situation in\nwhich the defendant was allegedly subjected to duress. Fear\nwhich would be irrational in one set of circumstances may be\nwell-grounded if the experience of the defendant with those\napplying the threat is such that the defendant can reasonably\nanticipate being harmed on failure to comply.” Id. (emphasis\nadded). In Johnson, for instance, there was little doubt that\nthe jury, in assessing the reasonableness of the defendants’\nfear, could properly consider the fact that the defendants had\n\n UNITED STATES V. LOPEZ 13\n\nwitnessed the kingpin commit brutal acts against others. See,\ne.g., id. at 898 (“Given the violence that [one defendant] had\nalready observed on the part of [the kingpin], including his\nputting of dynamite in her housemate[’s] . . . mouth, she was\nunder threat of immediate severe physical harm.”).\n\n The more difficult question was “whether a special\nvulnerability to fear—a vulnerability not produced by those\npersons causing the defendant’s criminal action—may be\ntaken into account.” Id. at 898 (emphasis added). We noted\nthat, “[a]s a defense to a charge of criminal conduct, such\nsubjective vulnerability has not been admitted.” Id. Our\nanalysis at this juncture was brief and opaque, however, as we\nprovided no elaboration on what constitutes a special,\nsubjective vulnerability to fear.\n\n Instead, we reasoned that there are factors related solely\nto the defendant—rather than to the coercing, threatening\nparty—that may be considered in the reasonableness inquiry.\nRelying on the Model Penal Code (MPC), we highlighted\n“[s]tark, tangible factors,” such as a person’s “size, strength,\nage, or health.” Id. (quoting MODEL PENAL CODE § 2.09 cmt.\n3 (AM. LAW INST. 1985)); see also MODEL PENAL CODE\n§ 2.09 cmt. 3 (“The [‘person of reasonable firmness’]\nstandard is not, however, wholly external in its reference;\naccount is taken of the actor’s ‘situation,’ a term that should\nhere be given the same scope it is accorded in appraising\nrecklessness and negligence.”). Indeed, a 5’ 3”, 100 lbs., 80-\nyear old individual will, all else equal, likely perceive a threat\nof physical violence differently than a 6’ 4”, 200 lbs., 25-year\nold. While we then acknowledged that the MPC did not list\n“gender as one of the ‘stark, tangible factors,’” we assured\nthat our analysis would demonstrate that “there are sets of\n\n14 UNITED STATES V. LOPEZ\n\ncircumstances in which gender is also a factor to be\nconsidered.” Johnson, 956 F.2d at 898.\n\n Once we turned to the claims raised by three of the female\ndefendants, it became evident that our mention of “gender”\nreferred to BWS evidence. At trial, one of the defendants,\nWood, “buttressed her contention of duress with the” expert\ntestimony of a psychologist who “had substantial experience\nin dealing with battered women.” Id. at 899. Summarizing\nthis testimony and the texts the psychologist cited, we\nexplained that BWS\n\n is a set of psychological and behavioral\n reactions exhibited by victims of severe,\n long-term, domestic physical and emotional\n abuse. L. Walker, The Battered Woman\n Syndrome (1984). Battered woman syndrome\n is not a mental disease or defect; rather,\n battered woman syndrome is a post-traumatic\n stress disorder. Its psychological effects are\n often similar to the effects of imprisonment on\n kidnap victims and prisoners of war. Once\n battered women believe themselves to be\n helpless victims of abusive men, they behave\n like hostages and link themselves to their\n captors out of fear that it is the only way to\n survive. Battered women are unable to\n respond effectively to violence because they\n are psychologically trapped in the violent\n relationship.\n\n Repeated beatings diminish the battered\n woman’s motivation to respond and instill in\n her a negative belief about the effectiveness of\n\n UNITED STATES V. LOPEZ 15\n\n her actions. This “learned helplessness”\n keeps the battered woman from leaving her\n batterer. One of the primary survival skills of\n battered women is hyperalertness. The\n battered woman learns to be sensitive to her\n environment to prevent further violence to\n herself. The development of survival skills,\n however, comes “at the expense of escape\n skills.” L. Walker at 33 & 87-89. Society\n often misinterprets the survival skills of\n battered women as signs of passivity and\n weakness coupled with an unwillingness to\n leave the violent relationship. Id. at 33. A\n common misunderstanding is that the battered\n woman’s responses are indicative of weak\n character. Rather, these responses must be\n seen as attempts to cope with the abusive and\n controlling environment in which she lives\n and from which she is helpless to escape.\n\nId.\n\n Although the duress defense did not sway the jury, we\nheld that the district court “should properly consider the\nindividual before the court and her particular vulnerability”\nin sentencing. Id. BWS evidence, we concluded, “has a\nparticular relation to the defense of duress as it has been\nexpanded by the commentary to the Model Penal Code.” Id.\nat 900. We highlighted the MPC’s citation to “[a] leading\nauthority on the common law [who] added that the defense\napplies when the defendant is so far ‘in thrall to some power’\nthat a legal sanction would be ineffective in controlling any\nchoice that may be made.” Id. (quoting GLANVILLE\nWILLIAMS, CRIMINAL LAW: THE GENERAL PART 755–62 (2nd\n\n16 UNITED STATES V. LOPEZ\n\ned. 1961)); see also MODEL PENAL CODE § 2.09 cmt. 2. We\ndescribed this model of duress as a “substantial expansion of\nthe defense,” which we cautioned “may go too far if not\nlinked to gross and identifiable classes of circumstances.” Id.\nBut we concluded that “[b]attered women are in\ncircumstances forming such a class.” Id.\n\n Regrettably, our discussion in Johnson of BWS provides\nno guidance on the appropriate role of such evidence in\nsupporting the affirmative defense of duress at trial. We\nnoted, without approval or disapproval, that Wood was\npermitted to call an expert on BWS, who testified not only on\nBWS generally, but opined that Wood “fitted the profile of a\nbattered woman.” Id. at 899.\n\n Nor did we add clarity in addressing the claims raised by\nthe other defendants. Johnson claimed that she should have\nbeen permitted either to call the same expert as Wood or\ncross-examine her. Id. at 901. We found no abuse of\ndiscretion in the exclusion of such evidence because the\nexpert had never examined Johnson and could only have\ntestified as to “a stereotype applied to a case she knew only\nin the most external way.” Id.\n\n The third defendant, Breck, also contended that the\ndistrict court erred in denying her a jury instruction on duress\nand by precluding her from calling the BWS expert on her\nown behalf. Id. at 902. Unlike the other two defendants who\nhad claimed duress, “Breck began to work for [the kingpin]\nwithout any overt threat on his part, and she continued to\nwork for him without such threats being made directly.” Id.\nRather, Breck’s defense relied solely on her testimony that\nshe had once seen his bodyguards strike a woman and had\n“herself heard on numerous occasions from [the kingpin] of\n\n UNITED STATES V. LOPEZ 17\n\nhis violent treatment of persons who crossed him.” Id. We\nupheld her conviction. Breck, we reasoned, “had not made\nout a prima facie case of duress because she had made no\nshowing that she could not far earlier have escaped [the\nkingpin], as she in fact finally did.” Id. Moreover, the expert\nwitness’ “testimony, going to [Breck’s] special subjective\nvulnerability, would not have established the lack of\nopportunity to escape that the defense of duress requires.” Id.\n\n Ultimately, we remanded all three defendants to the\ndistrict court for resentencing. Even though the defendants\nhad not proven their defense of duress at trial, the district\ncourt could take into account at sentencing their “subjective\nvulnerability” and, as appropriate, “depart downwards on the\ngrounds of incomplete duress.” Id. at 903.\n\n There is language in Johnson that lends support to the\ngovernment’s argument here that BWS evidence is\nincompatible with the duress defense’s objective\nreasonableness standard. See id. at 898. But we decline to\napply such a broad reading to our brief discussion of the three\ndefendants’ evidentiary challenges. Wood was permitted the\nuse of an expert to testify at trial as to BWS generally and as\nto Wood’s own profile. Id. at 899. Johnson was denied the\nuse of the same expert, in part because she wanted the expert\nto testify as to her motivation, and the expert had never\nexamined Johnson. Id. at 901. As to the third defendant,\nBreck, we held only that she lacked the elements of a prima\nfacie duress defense because she was not actually threatened\ndirectly by the drug kingpin and ultimately escaped. Id. at\n902.\n\n Unfortunately, our Johnson decision never elaborated on\nwhat it meant for Breck to have had a reasonable opportunity\n\n18 UNITED STATES V. LOPEZ\n\nto escape from the kingpin. We thus have no means of\ndiscerning what factors led us to conclude that Breck’s duress\ndefense was so lacking in evidentiary support that she failed\nto make out a prima facie case, nor can we discern how BWS\nevidence might have influenced those factors. If, for\ninstance, Breck had decided not to call the police at the first\nopportunity, then a decision holding that BWS evidence was\ninadmissable in assessing the reasonableness of her decision\nwould certainly be relevant to the case before us.\nUnfortunately, Johnson does not supply these answers. We\nmust, therefore, conclude that our holding was limited to the\ndearth of duress evidence in Breck’s case. We are unwilling\nto read Johnson as establishing a categorical bar on BWS\nevidence in support of a duress defense at trial; we think that\nreads too much into Johnson. See United States v. Marenghi,\n893 F. Supp. 85, 93 (D. Me. 1995) (“[T]he admissibility of\nexpert testimony during trial in a duress defense was not\nsquarely before the appellate court in Johnson”).\n\n Our conclusion is bolstered by United States v. Homick,\n964 F.2d 899 (9th Cir. 1992), which we decided mere months\nafter Johnson.4 There, a woman and her ex-husband were\ntried for wire fraud stemming from her falsified affidavit\nregarding stolen jewelry. 964 F.2d at 901–02. The female\ndefendant claimed that she acted under duress from her ex-\nhusband, and on appeal, contended “that the district court\n\n 4\n Our conclusion is also consistent with our non-BWS precedent,\nwhich has allowed consideration of factors unique to the defendant, rather\nthan the threatening party, in assessing whether the defendant had a\nreasonable opportunity to escape. See, e.g., Contento-Pachon, 723 F.2d\nat 694 (holding that it is the jury’s role to “decide whether one in [the\ndefendant’s] position might believe that some of the Bogota police were\npaid informants for drug traffickers and that reporting the matter to the\npolice did not represent a reasonable opportunity of escape”).\n\n UNITED STATES V. LOPEZ 19\n\nimproperly excluded expert testimony regarding battered\nwoman syndrome and thereby deprived her of her theory of\ndefense.” Id. at 905. We found no error in this exclusion, as\nthe wiretapped phone calls between her and her ex-husband\nrevealed “[t]here was nothing implicitly or explicitly\nthreatening about [their] conversation[s]” and she “readily\nagreed” to write the fraudulent affidavit. Id. at 906. In\nreaching this conclusion, we stated that “[t]he battered\nwoman defense is a species of the defense of duress.” Id. at\n905. And, citing to Johnson, “[w]e recognize[d] that the\nunique nature of battered woman syndrome justifies a\nsomewhat different approach to the way we have historically\napplied” the duress defense. Id. Homick thus adds little\nclarity to the proper role of BWS evidence at trial except for\nthis: It demonstrates that we have not viewed evidence of\nBWS as categorically incompatible with duress. Rather, as\nin Johnson, we rejected the defendant’s claim of duress based\non the lack of evidence supporting the affirmative defense.\n\n\n Here, Lopez testified that Karaca—a convicted felon\nfleeing from the police—threatened to harm her and her\nfamily if she failed to comply with his demands and that she\nfeared that he would carry out these threats if she went to the\npolice. Such evidence was more than sufficient to warrant a\nduress instruction, which Lopez received. We must therefore\naddress the question left unanswered in our prior decisions:\nwhat role BWS evidence may play in supporting the\naffirmative defense of duress.\n\n 2\n\n We do not begin from a blank slate. Because duress is a\ncommon-law defense, state and federal courts have long\n\n20 UNITED STATES V. LOPEZ\n\nopined on its application and parameters. See Johnson, 956\nF.2d at 897 (“The defense of duress is a common law concept\nthat federal criminal law has incorporated.”). Tellingly, the\ngovernment has cited to only one jurisdiction that\ncategorically bars BWS evidence in the duress context.5 In\nWillis, the Fifth Circuit held that BWS evidence is\n“inherently subjective” and thus incompatible with the duress\ndefense’s objective, reasonable-person standard. 38 F.3d at\n175. The court reasoned that\n\n [s]uch evidence is not addressed to whether a\n person of reasonable firmness would have\n succumbed to the level of coercion present in\n a given set of circumstances. Quite the\n contrary, such evidence is usually consulted to\n explain why this particular defendant\n succumbed when a reasonable person without\n a background of being battered might not\n have. Specifically, battered woman’s\n syndrome evidence seeks to establish that,\n because of her psychological condition, the\n defendant is unusually susceptible to the\n coercion.\n\n\n\n 5\n Curiously, the government also cites United States v. Smith, 987\nF.2d 888 (2d Cir. 1993). In that case the district court declined to appoint\nthe defendant a psychiatrist “on the ground that testimony as to [the\ndefendant’s] unusual susceptibility to coercion was irrelevant and\ninadmissible.” Smith, 987 F.2d at 891. The Second Circuit held this was\nerror: “A psychiatrist might have testified to other issues at trial and\nsentencing, including that [the defendant’s] behavior was not inconsistent\nwith his being under duress. . . . Explaining this behavior might have\nbolstered the credibility of his duress claim, which was relevant to the\njury’s determination.” Id.\n\n UNITED STATES V. LOPEZ 21\n\nId. (emphasis added); see also United States v. Dixon, 413\nF.3d 520, 523–24 (5th Cir. 2005) (applying Willis in a case\ninvolving facts similar to the instant case), aff’d on other\ngrounds, 548 U.S. 1 (2006).\n\n In contrast, in a recent case the D.C. Circuit observed that\n“[m]ost courts that have considered th[is] question—\nespecially in recent years—have recognized that expert\ntestimony on battered woman syndrome can be relevant to\nprove duress.” United States v. Nwoye, 824 F.3d 1129, 1136\n(D.C. Cir. 2016) (Kavanaugh, J.). In Nwoye, the D.C. Circuit\nconcluded that “expert [BWS] testimony can help a jury\nassess whether a battered woman’s actions were reasonable.”\nId. Reasonableness, the court explained, “is not assessed in\nthe abstract. Rather, any assessment of the reasonableness of\na defendant’s actions must take into account the defendant’s\n‘particular circumstances,’ at least to a certain extent.” Id. at\n1137 (emphasis added).\n\n Turning first to whether a defendant who suffers from\nBWS can have a well-grounded fear that the threat will be\ncarried out against her,6 the court explained that “women in\n\n 6\n The D.C. Circuit describes the duress defense as a two-element\ntest: (1) whether the defendant “acted under an unlawful threat of\nimminent death or serious bodily injury” and (2) whether “there was no\n‘reasonable, legal alternative to committing the crime.’” Nwoye, 824 F.3d\nat 1135 (quoting United States v. Nwoye, 663 F.3d 460, 462 (D.C. Cir.\n2011)). Because the D.C. Circuit has stated that reasonableness is a\ncomponent of both elements, id. at 1137, we interpret this test as the\nfunctional equivalent of our own three-part test. Its first element merely\ncombines the question of whether the defendant suffered “an immediate\nthreat of death or serious bodily injury” and whether she had “a\nwell-grounded fear that the threat will be carried out.” Johnson, 956 F.2d\nat 897. Moreover, we see no meaningful distinction between whether the\ndefendant had a “reasonable opportunity to escape the threatened harm,”\n\n22 UNITED STATES V. LOPEZ\n\nbattering relationships are often ‘hypervigilant to cues of\nimpending danger and accurately perceive the seriousness of\nthe situation before another person who had not been\nrepeatedly abused might recognize the danger.’” Id.\n(emphasis added) (quoting Lenore E.A. Walker, Battered\nWomen Syndrome and Self-Defense, 6 NOTRE DAME J.L.\nETHICS & PUB. POL’Y 321, 324 (1992)). Thus, “[r]emarks or\ngestures that may seem harmless to the average observer\nmight be reasonably understood to presage imminent and\nsevere violence when viewed against the backdrop of the\nbatterer’s particular pattern of violence.” Id.; see also\nMarenghi, 893 F. Supp. at 95 (“Providing the jury with\ninformation of specific incidents of abuse while providing no\ninformation about how such treatment can, over time,\nestablish a dynamic where the threat of abuse hovers over\nevery interaction between the individuals, even if such threat\nis not always articulated, would give the jury only half of the\nstory. In effect, [BWS] expert testimony may be\ncharacterized as explaining how a reasonable person can\nnonetheless be trapped and controlled by another at all times\neven if there is no overt threat of violence at any given\nmoment.”).\n\n As to the separate inquiry of whether a defendant has a\nreasonable opportunity to escape the threatened harm, the\nD.C. Circuit concluded that “battered women face significant\nimpediments to leaving abusive relationships. Most\nimportantly, battered women who leave their abusers risk a\nretaliatory escalation in violence against themselves or those\nclose to them—sometimes termed ‘separation abuse.’”\nNwoye, 824 F.3d at 1137–38 (quoting Mary Ann Dutton,\n\n\nid., and whether she had a “reasonable, legal alternative to committing the\ncrime,” Nwoye, 824 F.3d at 1135.\n\n UNITED STATES V. LOPEZ 23\n\nValidity of “Battered Woman Syndrome” in Criminal Cases\nInvolving Battered Women, in DEPARTMENT OF JUSTICE, ET\nAL., THE VALIDITY AND USE OF EVIDENCE CONCERNING\nBATTERING AND ITS EFFECTS IN CRIMINAL TRIALS pt. I, at\n14–15 (1996)). “Expert testimony on those impediments to\nseparation can help explain why a battered woman did not\ntake advantage of an otherwise reasonable-sounding\nopportunity to avoid committing the alleged crime.” Id. at\n1138 (emphasis added). Indeed, a defendant’s experiences\nmay lead her to “reasonably believe[] that reporting [the\nthreatening party] to the police (or others) would have been\nunlikely to result in his immediate arrest and would . . .\ntherefore place[] her at greater risk in the interim.” Id.\nat 1139.\n\n As the court in Nwoye observed, the majority of\ncourts—federal and state—that have addressed BWS in the\ncontext of a duress defense have concluded that such\nevidence is relevant and may be admitted. See, e.g., Dando\nv. Yukins, 461 F.3d 791, 801 (6th Cir. 2006); United States v.\nRamirez, 87 Fed. R. Evid. Serv. 1154 (D.P.R. 2012); United\nStates v. Ceballos, 593 F. Supp. 2d 1054, 1060–63 (S.D. Iowa\n2009); Marenghi, 893 F. Supp. at 91–97; Commonwealth v.\nAsenjo, 82 N.E.3d 966, 973–74 (Mass. 2017); Wonnum v.\nState, 942 A.2d 569, 572–73 (Del. 2007); State v. Williams,\n937 P.2d 1052, 1058 (Wash. 1997) (en banc). But see United\nStates v. Willis, 38 F.3d 170 (5th Cir. 1994); State v. Richter,\n424 P.3d 402 (Ariz. 2018); State v. B.H., 870 A.2d 273 (N.J.\n2005).\n\n This analysis of BWS as applied to duress also comports\nwith the way courts have long viewed self-defense, which is\nsimilar to duress in that both defenses “require a defendant to\ndemonstrate that she acted reasonably in response to a\n\n24 UNITED STATES V. LOPEZ\n\nreasonable fear of death or bodily injury.” Marenghi, 893 F.\nSupp. at 95; see Nwoye, 824 F.3d at 1138 (“Our conclusion\nis further supported by the decisions of the vast majority of\ncourts that have long held that expert testimony on battered\nwoman syndrome can be relevant in the analogous context of\nself-defense.”); Johnson, 956 F.2d at 900 (“The majority of\nstate courts that have considered the issue [of BWS] have\nadmitted expert testimony as to the syndrome on behalf of a\nwoman contending that she acted in self-defense.”); see also\nsee State v. Curley, No. 2016-KP-1708, 2018 WL 3154627,\nat 8 (La. June 27, 2018); Commonwealth v. Pike, 726 N.E.2d\n940, 948 (Mass. 2000); Boykins v. State, 995 P.2d 474,\n476–79 (Nev. 2000); People v. Humphrey, 921 P.2d 1, 8–9\n(Cal. 1996); People v. Wilson, 487 N.W.2d 822, 823–24\n(Mich. Ct App. 1992).\n\n In People v. Humphrey, the California Supreme Court\nconcluded that, by admitting BWS evidence in a self-defense\ntrial, it was “not changing the standard from objective to\nsubjective, or replacing the reasonable ‘person’ standard with\na reasonable ‘battered woman’ standard.” 921 P.2d at 9.\nRather, “[t]he jury must consider [a] defendant’s situation\nand knowledge, which makes the evidence relevant, but the\nultimate question is whether a reasonable person, not a\nreasonable battered woman, would believe in the need to kill\nto prevent imminent harm.” Id. (first emphasis added). As\nwith duress, “objective reasonableness” for self-defense\n“must view the situation from the defendant’s perspective.”\nId. at 8 (emphasis in original). “As violence increases over\ntime, and threats gain credibility, a battered person might\nbecome sensitized and thus able reasonably to discern when\ndanger is real and when it is not.” Id. at 9. “The cyclical\nnature of an intimate battering relationship enables a battered\nspouse to become expert at recognizing the warning signs of\n\n UNITED STATES V. LOPEZ 25\n\nan impending assault from her partner—signs frequently\nimperceptible to outsiders.” Id. at 17 (Brown, J., concurring)\n(emphasis added) (quotation marks and citation omitted).\nThus, “[a]lthough a jury might not find the appearances\nsufficient to provoke a reasonable person’s fear, they might\nconclude otherwise as to a reasonable person’s perception of\nthe reality when enlightened by expert testimony on the\nconcept of hypervigilance.” Id. (emphasis in original).\n\n On balance, we are persuaded that expert testimony on\nhow BWS can cause individuals to become hypervigilant to\nimpending harm does not, as the Fifth Circuit perceives, seek\nto alter the duress defense’s reasonable-person standard. See\nWillis, 38 F.3d at 175. The question is still whether or not “a\nperson of reasonable firmness in [the defendant’s] situation\nwould have been unable to resist.” MODEL PENAL CODE\n§ 2.09(1) (1985) (emphasis added). We acknowledge,\nhowever, that the “‘snapshot’ of circumstances” shown to the\njury is not limited to just those circumstances existing\nimmediately prior to the commission of the crime. Marenghi,\n893 F. Supp. 94. This court has long recognized that a\ndefendant’s particular situation includes consideration of past\nexperiences. See Johnson, 956 F.2d at 898 (“Fear which\nwould be irrational in one set of circumstances may be\nwell-grounded if the experience of the defendant with those\napplying the threat is such that the defendant can reasonably\nanticipate being harmed on failure to comply.” (emphasis\nadded)).\n\n Moreover, BWS evidence is compatible with assessing\nwhether a defendant had a reasonable opportunity to escape\nfrom the coercing party. As seen above, this inquiry often\nfocuses on why the defendant did not call the police at the\nfirst opportunity. See, e.g., Kuok, 671 F.3d at 949;\n\n26 UNITED STATES V. LOPEZ\n\nContento-Pachon, 723 F.2d at 694; see also Nwoye, 824 F.3d\nat 1133. Experts on BWS, however, have explained that:\n\n The battered woman’s perception of viable\n options for stopping the violence and abuse by\n any means is not only shaped by her own\n prior experience with violence, but also\n influences her future actions in response to\n violence. The perception or understanding of\n whether there are options available that would\n end the violence is based largely on what has\n actually been learned through experience.\n\nMary Ann Dutton, Understanding Women’s Responses to\nDomestic Violence: A Redefinition of Battered Woman\nSyndrome, 21 HOFSTRA L. REV. 1191, 1219 (1993). For\nexample, a woman may “‘learn[]’ during childhood that the\npolice [are] not a viable option to stop the violence even in an\nimmediate situation” if she “observed her mother call the\npolice on many occasions when her father beat her mother,\nonly to hear them say that since the situation was ‘a\ndomestic,’ they could not intervene.” Id. at 1220. Indeed, an\nineffective attempt to seek help will likely amplify a woman’s\nrisk of being harmed. See id. at 1119–20; see also Humphrey,\n921 P.2d at 3 (“[M]any battered women remain in the\nrelationship because of lack of money, social isolation, lack\nof self-confidence, inadequate police response, and a fear\n(often justified) of reprisals by the batterer.”).\n\n Because an “assessment of the reasonableness of a\ndefendant’s actions must take into account the defendant’s\n‘particular circumstances,’” Nwoye, 824 F.3d at 1137, a jury\nmay consider the defendant’s prior experience with police\nresponse to abuse in determining whether it was reasonable\n\n UNITED STATES V. LOPEZ 27\n\nfor her not to contact them once threatened by the coercing\nparty. We perceive no meaningful distinction between a jury\nconsidering such evidence and assessing whether it was\nreasonable for a defendant not to contact the police due to\nfear either that close family members will be harmed or that\nthe police are in league with the coercing party. See, e.g.,\nKuok, 671 F.3d at 949–50 (“[T]he government’s suggestion\nthat [the defendant] should have cooperated with the\nauthorities immediately upon landing in the Atlanta airport\nmay be unreasonable, given that [the defendant] knew his\nfamily was still in danger of being jailed by Chinese\ngovernment officials beyond the control of U.S. authorities”);\nContento-Pachon, 723 F.2d at 694 (“The trier of fact should\ndecide whether one in [the defendant’s] position might\nbelieve that some of the Bogota police were paid informants\nfor drug traffickers and that reporting the matter to the police\ndid not represent a reasonable opportunity of escape.”); see\nalso Nwoye, 824 F.3d at 1132 (“[The defendant] also testified\nthat she was afraid to report [the coercing party] to the police\nbecause [he] had told her that he was a former FBI agent.”).\n\n Although a defendant may testify to how her experiences\nshaped her perceptions, as the defendant was permitted to do\nin this case, this lay testimony is often insufficient to\neffectively mount a duress defense. “To effectively present\nthe situation as perceived by the defendant, and the\nreasonableness of her fear,” a defendant must often\n“overcome stereotyped impressions about women who\nremain in abusive relationships. It is appropriate that the jury\nbe given a professional explanation of the battering syndrome\nand its effects on the woman through the use of expert\ntestimony.” Humphrey, 921 P.2d at 9; see also Johnson, 956\nF.2d at 899 (“Society often misinterprets the survival skills of\nbattered women as signs of passivity and weakness coupled\n\n28 UNITED STATES V. LOPEZ\n\nwith an unwillingness to leave the violent relationship. A\ncommon misunderstanding is that the battered woman’s\nresponses are indicative of weak character.” (citation\nomitted)). We therefore conclude that expert testimony on\nBWS is relevant to supporting a defendant’s argument that\nshe had a well-grounded fear that she would be harmed if she\nfailed to commit the illegal act demanded of her and that she\nhad no reasonable opportunity to avoid committing the crime.\n\n Beyond directly buttressing the elements of duress, BWS\nis also relevant to the related issue of rehabilitating a\ndefendant’s credibility. Humphrey, 921 P.2d at 9; see also\nState v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) (citing\nstate cases in which “courts have admitted expert testimony\non” BWS for, inter alia, “the specific purpose of bolstering\nthe defendant’s position and lending credibility to her version\nof the facts”). Courts addressing “psychological states\nanalogous to BWS, such as rape trauma syndrome and child\nsexual abuse accommodation syndrome, . . . have generally\nheld expert opinion admissible for” the purpose of\n“disabus[ing] the jury of some widely held misconceptions\nabout [the] victims, so that it may evaluate the evidence free\nof the constraints of popular myths.” Humphrey, 921 P.2d at\n15 (Brown, J., concurring) (quotation marks and citations\nomitted). To this end, “[j]urors faced with testimony from a\nbattered woman concerning her abuse and its effects may\ndoubt the testimony because they do not believe that a woman\nsubject to such abuse would stay with her abuser without\nalerting police or others.” Nwoye, 824 F.3d at 1140. “Expert\ntestimony on battered woman syndrome” can help “dispel the\nordinary lay person’s perception that a woman in a battering\nrelationship is free to leave at any time.” Id. (quoting\nHumphrey, 921 P.2d at 9).\n\n UNITED STATES V. LOPEZ 29\n\n Moreover, BWS testimony can provide juries an\nunderstanding of why victims of abuse sometimes make\ninconsistent statements or act in ways that appear\ncounterintuitive to a layperson. For instance, in Arcoren v.\nUnited States, the key witness recanted at trial her prior grand\njury testimony that her husband, the defendant, had raped her.\n929 F.2d 1235, 1238 (8th Cir. 1991). The government then\nmoved to introduce expert testimony on BWS. It argued, and\nthe Eighth Circuit agreed, that such evidence would aid the\njury in determining the defendant’s credibility by providing\nthe jury an explanation for the victim’s change in testimony.\nId. at 1239. “As the [expert] witness told the jury, [BWS] is\na psychological condition, which leads a female victim of\nphysical abuse to accept her beatings because she believes\nthat she is responsible for them, and hopes that by accepting\none more beating, the pattern will stop.” Id. at 1240. The\nexpert testimony thus “provided the jury with information\nthat would help it to determine which” version of the victim’s\n“testimony to credit.” Id. Similarly, in the context of a child-\nabuse prosecution, we held that expert testimony on such\nabuse had “significant probative value in that it rehabilitated\n(without vouching for) the victim’s credibility after she was\ncross-examined about the reasons she delayed reporting and\nabout the inconsistencies in her testimony.” United States v.\nBighead, 128 F.3d 1329, 1331 (9th Cir. 1997). Expert\ntestimony on BWS could likewise rehabilitate the testimony\nof a domestic-abuse victim in cases of duress, regardless of\nwhether she is the defendant or a government witness.\n\n With this understanding of the appropriate role of BWS\nevidence in raising the affirmative defense of duress, we turn\nto the expert evidence proffered in this case.\n\n30 UNITED STATES V. LOPEZ\n\n 3\n\n Although Lopez’s proffer of Dr. Karp’s proposed\ntestimony—before trial, during trial and in her motion for a\nnew trial—was fairly cursory, it is evident that the testimony\nwould have comported with the permissible uses of BWS\nevidence. Dr. Karp attested that her testimony “would have\nprovided the jurors with information about . . . what the\ndynamics of the ‘hypervigilant’ behaviors experienced by\nabused women . . . are in deciding the dangerousness of the\nsituation.” If jurors harbored any doubt that Lopez had a\nwell-grounded fear that Karaca would harm her and her\nfamily if she failed to purchase a gun for him, this testimony\nmay have helped them understand why she “accurately\nperceive[d] the seriousness of the situation before another\nperson who had not been repeatedly abused might recognize\nthe danger.” Nwoye, 824 F.3d at 1137 (citation omitted).\n\n Moreover, Dr. Karp’s testimony would have supported\nLopez’s contention that she had no reasonable opportunity to\nescape from Karaca. Lopez testified at trial that her\nstepfather beat her, her mother, and her sisters on a near daily\nbasis and also sexually assaulted her. The police would often\n“take the report and leave,” and after one of the few occasions\nthey arrested her stepfather, “he was out the next day” and\n“broke into the house.” Lopez attributed these experiences to\nwhy she decided not to call the police after Karaca threatened\nher, explaining that she feared they would not help her and\nthat Karaca would discover that she had called them. The\ngovernment attempted to assail this point throughout its\nclosing argument, contending that Lopez’s fear “just doesn’t\nmake sense” and referring to her explanation as “really\nincredible.” Dr. Karp, however, attested that Lopez’s past\ntrauma “may have influenced [Lopez’s] feelings when she did\n\n UNITED STATES V. LOPEZ 31\n\nnot seek the help of the police, given her own trauma history\nof being sexually abused by her step-father and the police\nnever protecting her.” We, of course, offer no opinion as to\nwhether a jury would believe Lopez or, as the government\nargues, find her “really incredible,” but that is the jury’s role.\nKuok, 671 F.3d at 950. This proposed testimony would have\ntherefore aided the jury in assessing the reasonableness of\nLopez’s decision to buy Karaca the gun and not call the\npolice. See Nwoye, 824 F.3d at 1139 (“[The defendant] may\nhave reasonably believed that reporting [the coercing party]\nto the police (or others) would have been unlikely to result in\nhis immediate arrest and would have therefore placed her at\ngreater risk in the interim. Thus, [her] testimony concerning\n[his] abuse, supplemented by expert testimony on battered\nwoman syndrome, would have constituted ‘sufficient\nevidence from which a reasonable jury could find’ for [the\ndefendant] on a theory of duress.”).\n\n Similarly, Dr. Karp’s testimony could have rehabilitated\nLopez’s credibility in light of the government’s contention\nthat Lopez complied with Karaca, not out of fear of him, but\nto keep her “relationship [with him] alive[] [and] to keep her\ncontact with Karaca ongoing.” Indeed, the government\nhighlighted the fact that, when confronted by her probation\nofficer, Lopez referred to Karaca as “my man,” asserting that\nthis was why she bought the gun. This is precisely the type of\nbehavior that might appear outwardly inconsistent with being\na victim of domestic violence but can be placed in context\nthrough expert testimony “as to the dynamics involved in\nBattered Woman Syndrome and why Battered Women\nremain with abusive men.”\n\n We garner from the district court’s series of oral rulings\non the admissibility of Dr. Karp’s testimony that the court\n\n32 UNITED STATES V. LOPEZ\n\nperceived the question of admitting the BWS evidence as\n“close,” but ultimately concluded that it was categorically\nirrelevant to Lopez’s duress defense. In light of the foregoing\ndiscussion, this was an error of law, which constitutes an\nabuse of discretion. United States v. Finley, 301 F.3d 1000,\n1007 (9th Cir. 2002). “A non-constitutional error requires\nreversal unless there is a ‘fair assurance’ of harmlessness, or\nstated another way, unless ‘it is more probable than not that\nthe error did not materially affect the verdict.’”7 United\nStates v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015)\n(quoting United States v. Seschillie, 310 F.3d 1208, 1214 (9th\nCir. 2002)). The government argues that the exclusion of Dr.\nKarp’s testimony was harmless, contending that it would\nhave been cumulative of Lopez’s own testimony about her\npast abuse and its effect on her decisions.8 But as discussed\n\n\n 7\n Lopez argues that the exclusion of Dr. Karp’s testimony prevented\nher from raising a complete defense and thus amounted to constitutional\nerror, which requires “the Government [to] convince[] us that the error\nwas harmless beyond a reasonable doubt.” United States v. Stever, 603\nF.3d 747, 757 (9th Cir. 2010). Because we find sufficient prejudice under\nthe less onerous standard for non-constitutional errors, we need not reach\nthis issue.\n 8\n The government also briefly argues that the testimony should be\nexcluded under Federal Rule of Evidence 403 as unfairly prejudicial\nbecause it would “likely . . . elicit a sympathetic emotional response in the\njury that would have affected their verdict.” We have cautioned, however,\n“that the exclusion of evidence offered by the defendant in a criminal\nprosecution under Rule 403 is ‘an extraordinary remedy to be used\nsparingly.’” United States v. Haischer, 780 F.3d 1277, 1281 (9th Cir.\n2015) (quoting United States v. Mende, 43 F.3d 1298, 1302 (9th Cir.\n1995)). Lopez had already testified to the physical and sexual abuse\ninflicted by her stepfather. The proposed expert testimony would have\nmerely explained how this abuse affected her interactions with Karaca and\nthe police. We perceive no undue prejudice. In any event, that is a matter\nfor the district court to decide.\n\n UNITED STATES V. LOPEZ 33\n\nabove, expert testimony on BWS serves an important role in\nhelping dispel many of the misconceptions regarding women\nin abusive relationships. Such evidence was vital to Lopez’s\ndefense, which hinged on persuading the jury that she acted\nonly out of an objectively reasonable fear. We will therefore\nvacate Lopez’s conviction on all counts and remand for a new\ntrial.\n\n ***\n\n We hold that expert testimony on BWS is not\ncategorically excludable and may be relevant to a defense of\nduress. We understand that our opinion leaves open many\nquestions concerning the proper scope of an expert’s\ntestimony on BWS. These questions will have to be\naddressed in the first instance by the district court.\n\n B\n\n Finally, we turn to Lopez’s argument that the district\ncourt erred in excluding the tape of her complete interview\nwith the ATF agents as inadmissable hearsay. Lopez moved\nthe district court several times before and during trial to admit\nthe entire interview, raising numerous theories of\nadmissibility. In her motion for a new trial, Lopez again\nargued that the entire taped interview should have been\nadmitted. She contended that the ATF agents’ statements\nwere non-hearsay because she offered them to show their\neffect on her as the listener rather than for the truth of the\nmatter asserted. For instance, one of the agents told Lopez\nduring the interview that Karaca “is not gonna touch you. He\nhas no power in here. He is gonna be in jail or dead within a\nweek.” Lopez argued, as she does on appeal, that such\nstatements would not have been offered to prove that Karaca\n\n34 UNITED STATES V. LOPEZ\n\ncould not harm her in jail, but rather to show that the\nstatements had the effect of making her feel safe, which\ntherefore led to her telling the agents about Karaca’s threats.\nLopez contended that this evidence would have helped her\ncounter the government’s argument at trial that the impact of\nspending a night in jail led to her fabricating a story of acting\nunder duress the very next day. In a brief oral ruling, the\ncourt denied the motion for a new trial, merely commenting\nas to this issue that the statements were “self-serving\nhearsay.”\n\n A district court’s evidentiary rulings are reviewed for\nabuse of discretion, United States v. Beydler, 120 F.3d 985,\n987 (9th Cir. 1997), as is its denial of a motion for a new trial,\nUnited States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011).\n“As a general rule, a party is prohibited from introducing a\nstatement made by an out-of-court declarant when it is\noffered at trial to prove the truth of the matter asserted.”\nTorres, 794 F.3d at 1059. Accordingly, an out-of-court\nstatement is not hearsay if offered for any purpose other than\nthe truth of whatever the statement asserts. See United States\nv. Sanchez-Lopez, 879 F.2d 541, 554 (9th Cir. 1989). One\ncommon application of this principle is admitting a\ndeclarant’s out-of-court statement for the purpose of\nestablishing what effect it had on the listener. See, e.g.,\nUnited States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991);\n2 MCCORMICK ON EVIDENCE § 249 (7th ed. 2016) (providing\nexamples).\n\n Lopez is correct that the ATF agents’ statements would be\nnon-hearsay if considered only in the context of assessing\ntheir impact on Lopez—i.e., convincing her that it was safe\nto speak to the agents about Karaca. This conclusion is\nunderscored by the fact that there would be little relevance to\n\n UNITED STATES V. LOPEZ 35\n\nthe truth of the agents’ statements that Karaca could not harm\nLopez while she was in jail. In contrast, the non-hearsay\napplication of these statements would be relevant to rebutting\nthe government’s argument that Lopez’s night in jail\nconvinced her to fabricate her duress story.\n\n Nonetheless, the district court did not err in excluding this\nevidence because Lopez consistently sought to introduce the\nvideo of the entire interview. This evidence would have\nundoubtedly consisted nearly exclusively of hearsay\nstatements, including those made by Lopez.9 There was no\nabuse of discretion.\n\n III. CONCLUSION\n\n The district court abused its discretion in categorically\nexcluding Lopez’s expert witness on Battered Woman\nSyndrome. Because we find that this error prejudiced her\ndefense, we VACATE her conviction on all counts and\nREMAND for a new trial.\n\n\n\n\n 9\n Lopez has not argued on appeal that her statements would be non-\nhearsay (e.g., under the exclusion for prior consistent statements) or would\nfall under a hearsay exception.\n\n36 UNITED STATES V. LOPEZ\n[END_CASE]", "role": "user" } ]
4,580,574		United States v. Jose Valencia-Mendoza	2019-01-10	17-30158	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Susan P. Graber, M. Margaret McKeown, and Morgan B. Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-30158\n Plaintiff-Appellee,\n D.C. No.\n v. 2:16-cr-00113-RMP-1\n\nJOSE MANUEL VALENCIA-\nMENDOZA, aka Jose OPINION\nValencia-Vargas,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Rosanna Malouf Peterson, District Judge, Presiding\n\n Argued and Submitted December 6, 2018\n Seattle, Washington\n\n Filed January 10, 2019\n\n Before: Susan P. Graber, M. Margaret McKeown, and\n Morgan B. Christen, Circuit Judges.\n\n Opinion by Judge Graber\n\f2 UNITED STATES V. VALENCIA-MENDOZA\n\n SUMMARY\n\n\n Criminal Law\n\n The panel vacated a sentence for unlawfully reentering\nthe United States after having been removed, and remanded\nfor resentencing, in a case in which the district court applied\na four-level increase to the offense level under U.S.S.G.\n§ 2L1.2 on the ground that, prior to his removal order, the\ndefendant had been convicted of a Washington state offense\npunishable by imprisonment for a term exceeding one year.\n\n In applying the four-level increase because the\ndefendant’s Washington conviction carried a general statutory\nmaximum term of imprisonment of five years, the district\ncourt applied this court’s precedent which required the\ndistrict court to disregard the maximum term that the\ndefendant actually could have received under state law. The\npanel held that this precedent is irreconcilable with later\nSupreme Court decisions—Carachuri-Rosendo v. Holder,\n560 U.S. 563 (2010), and Moncrieffe v. Holder, 569 U.S. 184\n(2013), which held that when determining whether an offense\nis “punishable” by a certain term of imprisonment, courts\nmust consider both a crime’s statutory elements and\nsentencing factors—and must be overruled.\n\n Because under the Washington statutes that prescribe a\nbinding sentencing range, the actual maximum term that the\ndefendant could have received was six months, the panel held\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. VALENCIA-MENDOZA 3\n\nthat the district court erred by concluding that the defendant’s\noffense was punishable by more than one year in prison.\n\n\n COUNSEL\n\nWilliam Miles Pope (argued), Federal Defenders of Eastern\nWashington & Idaho, Spokane, Washington, for\nDefendant-Appellant.\n\nMatthew F. Duggan (argued), Assistant United States\nAttorney; Joseph H. Harrington, United States Attorney;\nUnited States Attorney’s Office, Spokane, Washington; for\nPlaintiff-Appellee.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Defendant Jose Manuel Valencia-Mendoza pleaded guilty\nto unlawfully reentering the United States after having been\nremoved, in violation of 8 U.S.C. § 1326(a). At sentencing,\nthe district court applied a four-level increase to the total\noffense level, under United States Sentencing Guideline\n§ 2L1.2, because the court concluded that Defendant had\nbeen convicted of a “felony” under Washington law. The\ncommentary to § 2L1.2 defines “felony” as “any federal,\nstate, or local offense punishable by imprisonment for a term\nexceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2.\nDefendant’s conviction under Washington law carried a\ngeneral statutory maximum term of imprisonment of five\nyears. The district court faithfully applied our precedent and\nstopped its analysis there: Because the general statutory\n\f4 UNITED STATES V. VALENCIA-MENDOZA\n\nmaximum exceeded one year, the enhancement under § 2L1.2\napplied.\n\n But the actual maximum term that Defendant could have\nreceived was only six months, because Washington law\nimposed a mandatory sentencing range. Our precedent\nrequired the district court to disregard the maximum term that\nDefendant actually could have received under state law, in\nfavor of the maximum term that Defendant theoretically\ncould have received if different factual circumstances were\npresent. Reviewing de novo the interpretation of the\nSentencing Guidelines, United States v. Martinez, 870 F.3d\n1163, 1165 (9th Cir. 2017), we conclude that later Supreme\nCourt decisions are clearly irreconcilable with our precedent\non this point. Accordingly, we vacate the sentence and\nremand for resentencing.\n\n FACTUAL AND PROCEDURAL HISTORY\n\n In 2007, Defendant was convicted in Washington state\ncourt of possession of cocaine, in violation of Revised Code\nof Washington (“RCW”) section 69.50.4013.1 Defendant’s\nconviction was for a “class C felony punishable under chapter\n9A.20 RCW.” RCW § 69.50.4013(2). Section 9A.20.021\nprovided, in turn:\n\n Unless a different maximum sentence for\n a classified felony is specifically established\n by a statute, no person convicted of a\n classified felony shall be punished by\n confinement or fine exceeding the following:\n\n 1\n All citations to the RCW are to the version in effect in late 2007,\nwhen Defendant was indicted, convicted, and sentenced.\n\f UNITED STATES V. VALENCIA-MENDOZA 5\n\n ....\n\n (c) For a class C felony, by confinement in\n a state correctional institution for five years,\n or by a fine in an amount fixed by the court of\n ten thousand dollars, or by both such\n confinement and fine.\n\nThe general statutory maximum term of imprisonment for\nDefendant’s crime was, therefore, five years.\n\n But, in addition to providing statutory maximum terms,\nWashington law specified mandatory limits on criminal\nsentences. RCW section 9.94A.505 provided, at the relevant\ntime: “Unless another term of confinement applies, the court\nshall impose a sentence within the standard sentence range\nestablished in RCW 9.94A.510 or 9.94A.517.” (Emphasis\nadded.) Section 9.94A.517 applied to drug convictions and\nprovided a two-dimensional “[d]rug offense sentencing grid.”\nThe grid defined the “standard sentence range[]” for an\noffense, depending on the “seriousness level” and the\n“offender score.” RCW § 9.94A.517(1).\n\n Defendant’s crime had a “seriousness level” of “I.” See\nRCW § 9.94A.520 (“The offense seriousness level is\ndetermined by the offense of conviction.”); RCW\n§ 9.94A.518 (defining convictions under section 69.50.4013\nas having a seriousness level of “I”). The state court\ncalculated Defendant’s “offender score” as 0. See RCW\n§ 9.94A.525 (providing detailed calculation of “offender\nscore”). Turning back to the drug offense sentencing grid, the\n“standard sentence range” for seriousness level I and offender\nlevel 0 was “0 to 6 months.” RCW § 9.94A.517(1).\n\f6 UNITED STATES V. VALENCIA-MENDOZA\n\n If certain aggravating circumstances were present, the\nstatutes contained adjustments to that range. RCW\n§ 9.94A.533. For example, the presence or use of a firearm\ncould have resulted in a standard range that exceeded the\nsentencing range described in the two-dimensional chart.\nRCW § 9.94A.533(3)–(5). But none of those circumstances\nwas found to be present, so Defendant’s final standard range\nwas zero to six months.2 Defendant’s state criminal judgment\nsummarized the available sentence in a tidy table reproduced\nbelow.\n\nCOUNT NO. OFFENDER SERIOUSNESS LEVEL STANDARD Plus Enhancements Total STANDARD MAXIMUM TERM\n SCORE RANGE (not for Firearm (F), RANGE (including\n including other deadly enhancements)\n enhancements) weapon finding (D),\n VUCSA (V) in a\n protected zone,\n Veh. Hom. (VH).\n See RCW 46.61.520\n or Juvenile present\n (JP); Sexual\n Motivation (SM)\n\n 1 0 1 0 to 6 months N/A 0 to 6 months 5 years\n $10,000.00\n\n\n\n The calculation of the final standard range (sometimes\nreferred to as the “presumptive sentence”) does not end the\nstatutory analysis. Washington law allowed the sentencing\ncourt to deviate from the standard range—but only if certain\nstatutorily permitted findings were made. Section 9.94A.535,\ntitled “[d]epartures from the guidelines,” provided that “[t]he\n\n\n 2\n In most cases, the statutory maximum term of imprisonment acted\nas an absolute cap on the adjustments that could apply to the standard\nsentence range. That is, if the adjustments led to a standard sentence\nrange that exceeded the statutory maximum, then the standard sentence\nrange was the statutory maximum. Different rules applied, however, if the\ndefendant was a “persistent offender.” RCW § 9.94A.533(3)(g). In some\ncases, then, the defendant could have been sentenced to a term of\nimprisonment greater than the statutory maximum as defined in RCW\nsection 9.94A.505. That possibility in an exceptional case is not at issue\nhere and does not affect our analysis.\n\f UNITED STATES V. VALENCIA-MENDOZA 7\n\ncourt may impose a sentence outside the standard sentence\nrange for an offense if it finds, considering the purpose of this\nchapter, that there are substantial and compelling reasons\njustifying an exceptional sentence.” It further provided that\n“[w]henever a sentence outside the standard sentence range\nis imposed, the court shall set forth the reasons for its\ndecision in written findings of fact and conclusions of law.”\nRCW § 9.94A.535. (By contrast, sentences within the\nstandard range could be imposed without special descriptions.\nRCW § 9.94A.530(1).)\n\n Critically, whether “substantial and compelling reasons”\nexist was not an open-ended inquiry. The statute specified\ntwo categories of aggravating circumstances that permitted\ndeparture from the guidelines: findings by the sentencing\ncourt and findings by a jury. See RCW § 9.94A.535(2)\n(listing the four aggravating circumstances that could be\nfound by the sentencing court); RCW § 9.94A.535(3) (listing\nthe 26 aggravating circumstances that could be found by the\njury). If an aggravating circumstance was found, then the\nsentencing court could impose a sentence up to the statutory\nmaximum term. RCW § 9.94A.537(6). But unless one of the\nstatutorily specified aggravated circumstances was found, the\nsentencing court was required to impose a sentence within\nthe standard range. RCW § 9.94A.505.\n\n In Defendant’s case, as reflected on the face of the\ncriminal judgment, neither the court nor the jury found an\naggravating circumstance. Accordingly, Washington law\nrequired the sentencing court to impose a sentence within the\nfinal standard sentence range of zero to six months. The state\ncourt selected 30 days in jail.\n\f8 UNITED STATES V. VALENCIA-MENDOZA\n\n Following that conviction, Defendant was removed from\nthe United States. In 2016, the government indicted\nDefendant for unlawfully reentering the United States after\nhaving been removed, in violation of 8 U.S.C. § 1326(a).\nDefendant pleaded guilty, without a plea agreement.\n\n At sentencing, the district court applied a four-level\nenhancement under U.S.S.G. § 2L1.2. The relevant\nGuideline3 provided:\n\n If, before the defendant was ordered\n deported or ordered removed from the United\n States for the first time, the defendant\n sustained–\n\n ....\n\n (D) a conviction for any other felony\n offense (other than an illegal reentry offense),\n increase by 4 levels.\n\nU.S.S.G. § 2L1.2(b)(2) (2016); see also id. § 2L1.2(b)(1)(D)\n(2015) (using similar text). As noted, the commentary to the\nGuideline defined the term “felony”:\n\n “Felony” means any federal, state, or local\n offense punishable by imprisonment for a\n term exceeding one year.\n\n\n\n 3\n Defendant was sentenced on August 17, 2017, so the applicable\nversion of the Guidelines is the November 1, 2016 version. United States\nv. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012) (citing 18 U.S.C.\n§ 3553(a)(4)(A)(ii)); accord U.S.S.G. § 1B1.11(a).\n\f UNITED STATES V. VALENCIA-MENDOZA 9\n\nId. § 2L1.2 cmt. n.2 (2016); see also id. § 2L1.2 cmt. n.2\n(2015) (defining the term identically). The court concluded\nthat Defendant had sustained a felony conviction in\nWashington because the statutory maximum term of\nimprisonment for the drug conviction was five years. The\ncourt sentenced Defendant to 24 months of imprisonment.\nDefendant timely appeals, challenging only the four-level\nenhancement.\n\n DISCUSSION\n\n We must decide whether Defendant’s state conviction\nwas a “felony” for purposes of the federal Sentencing\nGuideline. According to the government, the statutory\nmaximum punishment for Defendant’s state offense was five\nyears, so he was convicted of an “offense punishable by\nimprisonment for a term exceeding one year.” U.S.S.G.\n§ 2L1.2 cmt. n.2. Defendant acknowledges the statutory\nmaximum but argues that, because the maximum sentence\nthat he actually could have received was only six months, he\nwas not convicted of an “offense punishable by imprisonment\nfor a term exceeding one year.” Id.\n\n A number of years ago, we sided with the government’s\nargument. In United States v. Rios-Beltran, 361 F.3d 1204,\n1208 (9th Cir. 2004), the defendant asserted that, under\nOregon law, “the maximum term of imprisonment the trial\ncourt could impose for his conviction was 90 days.” We\nrejected the relevance of the mandatory sentencing range\nunder state law:\n\n The actual sentence imposed on an\n individual for a prior conviction, or the actual\n sentence that potentially could have been\n\f10 UNITED STATES V. VALENCIA-MENDOZA\n\n imposed based upon the particular facts of\n that person’s case, is not the relevant inquiry.\n We look to the maximum penalty allowed by\n law in determining whether a prior conviction\n constitutes an aggravated felony under state\n law for purposes of § 2L1.2.\n\nId. The defendant “was convicted under an Oregon statute\nwhich carries a maximum term of imprisonment of five years.\nThe fact that the state’s ‘guideline’ sentence is less than that\ndoes not alter the statutory maximum.” Id. at 1209 (citations\nomitted).\n\n We used the same reasoning with respect to Washington’s\nsentencing scheme in United States v. Murillo, 422 F.3d 1152\n(9th Cir. 2005). The federal inquiry was whether the\ndefendant previously had been convicted of “a crime\npunishable by imprisonment for a term exceeding one year.”\nId. at 1153 (quoting 18 U.S.C. § 922(g)(1)). The defendant\nargued that, under Washington law,\n\n the maximum sentence a court may impose\n for a crime is defined by the maximum term\n that may be imposed based solely on the facts\n established by a guilty verdict. If no\n aggravating factors are pleaded and proved,\n then the maximum sentence must be\n considered the maximum of the range in the\n state’s sentencing guideline grid, not the\n maximum set by the state’s applicable\n criminal statute.\n\nId. at 1154. We disagreed: “the maximum sentence is the\nstatutory maximum sentence for the offense, not the\n\f UNITED STATES V. VALENCIA-MENDOZA 11\n\nmaximum sentence available in the particular case under the\nsentencing guidelines.” Id.; see also id. at 1155 (concluding\nthat the relevant maximum sentence is “the potential\nmaximum sentence defined by the applicable state criminal\nstatute, not the maximum sentence which could have been\nimposed against the particular defendant for his commission\nof that crime according to the state’s sentencing guidelines”);\nsee also United States v. Crawford, 520 F.3d 1072, 1079–80\n(9th Cir. 2008) (applying Murillo’s holding to the\ndetermination under federal Guideline § 4B1.2(b) whether a\nWashington conviction was for “an offense under federal or\nstate law, punishable by imprisonment for a term exceeding\none year”).\n\n Unless there is a higher intervening authority, those cases\ncontrol. We conclude that our earlier holdings are “clearly\nirreconcilable,” Miller v. Gammie, 335 F.3d 889, 899–900\n(9th Cir. 2003) (en banc), with two later Supreme Court\nprecedents: Carachuri-Rosendo v. Holder, 560 U.S. 563\n(2010), and Moncrieffe v. Holder, 569 U.S. 184 (2013).\n\n In Carachuri-Rosendo, the Board of Immigration Appeals\nconcluded that the petitioner had been convicted of an\n“aggravated felony” under the immigration laws. 560 U.S. at\n571–72. The petitioner’s earlier conviction was in Texas\nstate court for simple possession of a controlled substance.\nId. at 570–71. Before that, the petitioner had been convicted\nof a separate drug crime under state law. Id. at 570.\nUnderstanding the federal statutory term “aggravated felony”\nrequired navigating a “maze of statutory cross-references,”\nwhich asked in part whether the crime was a “drug\ntrafficking” crime. Id. at 567. The courts had to determine\nwhether the petitioner’s conduct was “punishable” as a felony\nunder federal criminal laws. Id. at 566–70. “A felony is a\n\f12 UNITED STATES V. VALENCIA-MENDOZA\n\ncrime for which the ‘maximum term of imprisonment\nauthorized’ is ‘more than one year.’” Id. at 567 (quoting 18\nU.S.C. § 3559(a)).\n\n Title 21 U.S.C. § 844(a) governs simple possession under\nfederal law. It provided, in relevant part:\n\n Any person who violates this subsection may\n be sentenced to a term of imprisonment of not\n more than 1 year, . . . except that if he\n commits such offense after . . . a prior\n conviction for any drug, narcotic, or chemical\n offense chargeable under the law of any State,\n has become final, he shall be sentenced to a\n term of imprisonment for . . . not more than 2\n years . . . .\n\n21 U.S.C. § 844(a) (2010). The Supreme Court noted that,\nalthough a prior conviction need not be found by a jury, the\nCourt would nevertheless describe the crime as two separate\ncrimes: “first-time simple possession” (a misdemeanor\nbecause the maximum penalty is one year) and “recidivist\nsimple possession” (a felony because the maximum penalty\nis more than one year). Carachuri-Rosendo, 560 U.S. at\n567–68 & n.3. The Court also noted that, to prove recidivist\nsimple possession, the prosecutor must provide pretrial\nnotice. Id. at 568–69. The government argued that the\npetitioner’s crime was punishable under federal law by more\nthan one year of imprisonment because, had the petitioner\nbeen prosecuted federally, the federal prosecutor could have\nalleged the petitioner’s prior conviction and, accordingly,\nconvicted him of recidivist simple possession, a felony. Id. at\n570.\n\f UNITED STATES V. VALENCIA-MENDOZA 13\n\n The Court rejected the government’s position and the\nmore generic “hypothetical approach” for five reasons. Id. at\n575–81. First, “and most fundamentally,” the government’s\nargument ignored the fact that the petitioner had been\nconvicted in state court of only simple possession, not\nrecidivist simple possession. Id. at 576–77. Second, as\nnoted, in order to convict a defendant under federal law of\nrecidivist simple possession, the government must give notice\nand an opportunity to defend against that charge. Id. at 578.\nThe petitioner had not received such notice, even though\nTexas law allows for a similar procedural mechanism; to\npermit an immigration judge to rule that the petitioner could\nhave been convicted of recidivism “would denigrate the\nindependent judgment of state prosecutors to execute the laws\nof those sovereigns.” Id. at 580. Third, the government’s\nposition misapplied the Court’s precedent:\n\n Not only does the Government wish us to\n consider a fictional federal felony—whether\n the crime for which Carachuri–Rosendo was\n actually convicted would be a felony under\n the Controlled Substances Act—but the\n Government also wants us to consider facts\n not at issue in the crime of conviction (i.e., the\n existence of a prior conviction) to determine\n whether Carachuri–Rosendo could have been\n charged with a federal felony. This\n methodology is far removed from the more\n focused, categorical inquiry employed in [an\n earlier case].\n\nId. Fourth, the government’s position is inconsistent with\nfederal prosecutorial practice: “The Government’s\n‘hypothetical’ approach to this case is therefore misleading as\n\f14 UNITED STATES V. VALENCIA-MENDOZA\n\nwell as speculative, in that Carachuri–Rosendo’s\nfederal-court counterpart would not, in actuality, have faced\nany felony charge.” Id. at 581. Finally, ambiguities in\ncriminal laws should be construed in the non-citizen’s favor.\nId.\n\n In Moncrieffe, 569 U.S. at 188, the Supreme Court\nanalyzed the same maze of federal statutory cross-references,\nbeginning with the immigration law’s term “aggravated\nfelony.”\n\n The upshot is that a noncitizen’s conviction of\n an offense that the [Federal] Controlled\n Substances Act (CSA) makes punishable by\n more than one year’s imprisonment will be\n counted as an “aggravated felony” for\n immigration purposes. A conviction under\n either state or federal law may qualify, but a\n state offense constitutes a “felony punishable\n under the Controlled Substances Act” only if\n it proscribes conduct punishable as a felony\n under that federal law.\n\nId. (some internal quotation marks omitted). The petitioner\nhad pleaded guilty, in Georgia state court, to possession with\nintent to distribute a small amount of marijuana. Id. at\n188–89. The Board of Immigration Appeals held that the\nconviction constituted an “aggravated felony” for\nimmigration purposes, and the Fifth Circuit denied the\npetition for review. Id. at 189. The Supreme Court reversed.\nId. at 190.\n\n Under the statutory scheme at issue, “to satisfy the\ncategorical approach, a state drug offense must meet two\n\f UNITED STATES V. VALENCIA-MENDOZA 15\n\nconditions: It must ‘necessarily’ proscribe conduct that is an\noffense under the CSA, and the CSA must ‘necessarily’\nprescribe felony punishment for that conduct.” Id. at 192.\nTurning to the CSA, the Court noted that possession of\nmarijuana with intent to distribute is a federal crime under 21\nU.S.C. § 841(a)(1). Id. The Court then held that “we must\nlook to what punishment the CSA imposes for this offense.”\nId. at 193.\n\n Section 841(b)(1)(D) provides:\n\n In the case of less than 50 kilograms of\n marihuana, . . . such person shall, except as\n provided in paragraphs (4) and (5) of this\n subsection, be sentenced to a term of\n imprisonment of not more than 5 years . . . .\n\nParagraph (4), in turn, provides:\n\n Notwithstanding paragraph (1)(D) of this\n subsection, any person who violates\n subsection (a) of this section by distributing a\n small amount of marihuana for no\n remuneration shall be treated as [a simple\n drug possessor, subject to no more than a year\n in prison].\n\n21 U.S.C. § 841(b)(4). “These dovetailing provisions create\ntwo mutually exclusive categories of punishment for CSA\nmarijuana distribution offenses: one a felony, and one not.\nThe only way to know whether a marijuana distribution\noffense is punishable as a felony under the CSA is to know\nwhether the conditions described in paragraph (4) are present\nor absent.” Moncrieffe, 569 U.S. at 194 (internal quotation\n\f16 UNITED STATES V. VALENCIA-MENDOZA\n\nmarks and citation omitted). Because Georgia law does not\nrequire proof of remuneration, the record was ambiguous. Id.\n“Ambiguity on this point means that the conviction did not\n‘necessarily’ involve facts that correspond to an offense\npunishable as a felony under the CSA.” Id. at 194–95.\n\n The government had argued that paragraph (4) was\nmerely a mitigating “sentencing factor,” not an “element” of\nthe offense, so the “offense” was punishable by more than a\nyear. Id. at 195. The Court disagreed that the label mattered,\nlargely because of the reasoning of Carachuri-Rosendo:\n\n [The government’s position] is inconsistent\n with Carachuri–Rosendo, our only decision to\n address both “elements” and “sentencing\n factors.” There we recognized that when\n Congress has chosen to define the generic\n federal offense by reference to punishment, it\n may be necessary to take account of federal\n sentencing factors too. See 130 S. Ct., at\n 2581–2582. In that case the relevant CSA\n offense was simple possession, which\n “becomes a ‘felony punishable under the\n [CSA]’ only because the sentencing factor of\n recidivism authorizes additional punishment\n beyond one year, the criterion for a felony.”\n Id., 130 S. Ct., at 2590 (SCALIA, J.,\n concurring in judgment). We therefore called\n the generic federal offense “recidivist simple\n possession,” even though such a crime is not\n actually “a separate offense” under the CSA,\n but rather an “‘amalgam’” of offense elements\n and sentencing factors.\n\f UNITED STATES V. VALENCIA-MENDOZA 17\n\n In other words, not only must the state\n offense of conviction meet the “elements” of\n the generic federal offense defined by the\n INA, but the CSA must punish that offense as\n a felony. Here, the facts giving rise to the\n CSA offense establish a crime that may be\n either a felony or a misdemeanor, depending\n upon the presence or absence of certain\n factors that are not themselves elements of the\n crime. And so to qualify as an aggravated\n felony, a conviction for the predicate offense\n must necessarily establish those factors as\n well.\n\nMoncrieffe, 569 U.S. at 195–96 (one citation omitted).\n\n The outcome in a hypothetical prosecution is\n not the relevant inquiry. Rather, our “more\n focused, categorical inquiry” is whether the\n record of conviction of the predicate offense\n necessarily establishes conduct that the CSA,\n on its own terms, makes punishable as a\n felony. . . . [W]e made clear in\n Carachuri–Rosendo that, for purposes of the\n INA, a generic federal offense may be defined\n by reference to both “‘elements’ in the\n traditional sense” and sentencing factors.\n\nId. at 197–98 (citations omitted).\n\n Although those Supreme Court cases arose under\ndifferent statutes, they are central to our analysis here. The\ncases concerned the interpretation of immigration laws and\nfederal crimes under the Controlled Substances Act. Here, by\n\f18 UNITED STATES V. VALENCIA-MENDOZA\n\ncontrast, we must interpret the meaning of Sentencing\nGuideline § 2L1.2. We recognize that\n\n “[t]he clearly irreconcilable requirement is a\n high standard.” United States v. Robertson,\n 875 F.3d 1281, 1291 (9th Cir. 2017)\n (quotation marks omitted). Accordingly, “[i]t\n is not enough for there to be some tension\n between the intervening higher authority and\n prior circuit precedent, or for the intervening\n higher authority to cast doubt on the prior\n circuit precedent.” Id. “So long as the court\n can apply our prior circuit precedent without\n running afoul of the intervening authority it\n must do so.” Id. (quotation marks omitted).\n\nClose v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018)\n(second alteration in original). But we are persuaded that our\nearlier precedents cannot survive.\n\n The Washington statute, like the federal CSA, defined\nonly one crime by elements. Moncrieffe, 569 U.S. at 195–96.\nAnd the Washington statute, like the federal CSA, imposed\ndifferent statutory maximum sentences depending on an\namalgam of elements and sentencing factors. Id. We held in\nRios-Beltran, Murillo, and Crawford that, when considering\nwhether a crime is “punishable” by more than one year, we\nwould look solely to the statutory maximum term of\nimprisonment that corresponds to the elements of the crime\ncharged; we declined to consider sentencing factors. But in\nCarachuri-Rosendo and Moncrieffe, the Supreme Court held\nthat, when considering whether a crime is “punishable” by\nmore than one year, the court must examine both the elements\nand the sentencing factors that correspond to the crime of\n\f UNITED STATES V. VALENCIA-MENDOZA 19\n\nconviction. Accordingly, we hold that our earlier precedents\nare irreconcilable with Carachuri-Rosendo and Moncrieffe\nand must be overruled.\n\n The Supreme Court’s decision in United States v.\nRodriquez, 553 U.S. 377 (2008), is not to the contrary.\nThere, the Supreme Court assessed the meaning of the\nstatutory phrase “‘maximum term of imprisonment . . .\nprescribed by law.’” Id. at 380 (quoting 18 U.S.C.\n§ 924(e)(2)(A)(ii)). The Court held that Congress intended\nfor courts to consider recidivist sentencing enhancements in\ndetermining the maximum term of imprisonment. Id. at 393.\nIn its analysis, the Court rejected the notion that the top\nsentence of a mandatory guidelines range—Washington\nstate’s guidelines in particular—was a relevant consideration.\nId. at 390–93. First, the Court held that the top sentence is\nnot truly the maximum because Washington law at the\nrelevant time permitted a sentencing judge to deviate for any\nsubstantial and compelling reason; that discretion was not\nlimited by statute. Id. at 390–91 & n.5. Second, the Court\nheld that the specific concept of the “maximum term of\nimprisonment” was always understood to mean the statutory\nmaximum, without regard to sentencing factors. Id. at\n391–92.\n\n Two important distinctions make Rodriquez irrelevant to\nour analysis. First, unlike the statutory question at issue\nthere—what is the “maximum term of imprisonment . . .\nprescribed by law”—the question at issue here is whether\nDefendant was convicted of an offense “punishable” by more\nthan one year. “Punishable” suggests a realistic look at what\na particular defendant actually could receive, whereas\n“maximum term of imprisonment . . . prescribed by law”\n\f20 UNITED STATES V. VALENCIA-MENDOZA\n\nsuggests a mechanistic examination of the highest possible\nterm in the statute.\n\n Second, Washington law is now materially more\nrestrictive than it was at the time of the relevant events in\nRodriquez. Under Washington law when Defendant was\nconvicted, the sentencing court could not deviate from the\nstatutory sentencing range unless it found that one of four\nspecific factual circumstances was present. It is plain from\nthe state criminal judgment that the sentencing court did not\nfind any of those circumstances, so the sentencing court was\nbound by the statutory sentencing range. In other words, the\ntop sentence of the guidelines range was the maximum\npossible statutory punishment. See United States v.\nRockymore, 909 F.3d 167, 172 (6th Cir. 2018) (“Because the\nstate [of Tennessee] did not seek a higher range when\nprosecuting Rockymore, he accordingly was never subject to\nthe enhancements. Therefore, the ‘maximum term of\nimprisonment’ that he could have received was [the\nmaximum term defined by the statutory sentencing\nguidelines].”). That distinction—between (as here)\nstatutorily defined factual circumstances and (as in\nRodriquez) an open-ended inquiry into any potential factual\ncircumstance—is important because it defines the maximum\npossible punishment assigned by the legislature. See id. at\n171 (holding that, to determine the maximum term of\nimprisonment under Tennessee law and Rodriquez, the court\nmust look to the mandatory sentencing scheme, including the\n“offender-based” attributes).\n\n Our holding today accords with decisions by several sister\ncircuits. Both the Eighth and Tenth Circuits have held that,\nwhen determining whether a Kansas offense is “punishable”\nby more than one year in prison, the Supreme Court’s recent\n\f UNITED STATES V. VALENCIA-MENDOZA 21\n\ncases require an examination of the maximum sentence\npossible under the state’s mandatory sentencing guidelines.\nUnited States v. Brooks, 751 F.3d 1204, 1209–13 (10th Cir.\n2014); United States v. Haltiwanger, 637 F.3d 881, 883–84\n(8th Cir. 2011). Similarly, the Fourth Circuit has held that,\nwhen determining whether a North Carolina offense is\n“punishable” by a prison term of more than one year, the\nSupreme Court’s recent cases require the court to consider the\nmaximum sentence possible under the state’s mandatory\nsentencing guidelines. United States v. Simmons, 649 F.3d\n237 (4th Cir. 2011) (en banc). We are aware of no relevant\ncircuit precedent to the contrary.4\n\n 4\n Our holding today also finds a surprising ally: the government’s\nposition in several cases in the Fifth Circuit. For example, in a case\ninvolving the mandatory sentencing regime in Oregon, the government\nasserted, in a motion to remand for resentencing:\n\n To be “punishable” as a felony—that is, by\n imprisonment for a term exceeding one year—a prior\n state conviction must establish all the elements and\n sentencing factors necessary to authorize the\n punishment beyond one year. See Moncrieffe, 133 S.\n Ct. at 1685-87; Carachuri-Rosendo, 560 U.S. at\n 569-70. The presumptive sentences in each of\n Martinez’s cases—the maximum sentence the state\n court could impose without additional fact-finding—are\n below one year, so that neither prior conviction counts\n as a “felony.”\n\nUnited States v. Martinez, No. 14-41020, United States’ Agreed Motion\nfor Summary Remand (5th Cir. Jan. 14, 2015) (one citation truncated);\naccord United States v. Zacarias-Lopez, No. 13-41011, Government’s\nAgreed Motion for Summary Remand (5th Cir. Oct. 22, 2014); United\nStates v. Garcia-Duarte, No. 14-40516, United States’ Agreed Motion for\nSummary Remand (5th Cir. Oct. 30, 2014); see also Brooks, 751 F.3d at\n1213 n.7 (reviewing briefs filed by the government in cases originating in\nthe Sixth Circuit and concluding that “the Government has seemingly\n\f22 UNITED STATES V. VALENCIA-MENDOZA\n\n In sum, the Supreme Court has held that courts must\nconsider both a crime’s statutory elements and sentencing\nfactors when determining whether an offense is “punishable”\nby a certain term of imprisonment. Here, we are called on to\ndecide whether Defendant’s earlier offense was punishable\nunder Washington law by more than one year, and we can no\nlonger follow our earlier precedents that eschewed\nconsideration of mandatory sentencing factors. As noted,\nWashington statutes prescribe a required sentencing range\nthat binds the sentencing court. The sentencing range can be\nmodified, or rendered inapplicable altogether, if but only if\nthe judge or the jury makes certain factual findings. In this\ncase, no such finding was made, so the court was bound to\nadhere to the statutory sentencing range. Defendant’s\noffense—as actually prosecuted and adjudicated—was\npunishable under Washington law by no more than six\nmonths in prison. The district court therefore erred by\nconcluding that his offense was punishable by more than one\nyear in prison.\n\n Sentence VACATED; REMANDED for resentencing.\n\n\n\n\ntaken contradictory positions on this issue in different federal courts”).\nThe government has failed to explain, either in briefing or at oral\nargument, why its position has changed. Although the government’s\nabout-face does not affect our analysis, we note that some Justices have\nconcluded that “serious questions are raised when the sovereign itself\ntakes inconsistent positions in two separate criminal proceedings against\ntwo of its citizens.” Bradshaw v. Stumpf, 545 U.S. 175, 189 (2005)\n(Souter, J., joined by Ginsburg, J., concurring) (quoting Jacobs v. Scott,\n513 U.S. 1067, 1070 (1995) (Stevens, J., dissenting from the denial of\ncertiorari)).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357827/", "author_raw": "GRABER, Circuit Judge:"}]}	SUSAN P GRABER	M MARGARET MCKEOWN	MORGAN B CHRISTEN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580574/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Jose Valencia-Mendoza\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-30158\n Plaintiff-Appellee,\n D.C. No.\n v. 2:16-cr-00113-RMP-1\n\nJOSE MANUEL VALENCIA-\nMENDOZA, aka Jose OPINION\nValencia-Vargas,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Rosanna Malouf Peterson, District Judge, Presiding\n\n Argued and Submitted December 6, 2018\n Seattle, Washington\n\n Filed January 10, 2019\n\n Before: Susan P. Graber, M. Margaret McKeown, and\n Morgan B. Christen, Circuit Judges.\n\n Opinion by Judge Graber\n\f2 UNITED STATES V. VALENCIA-MENDOZA\n\n SUMMARY\n\n\n Criminal Law\n\n The panel vacated a sentence for unlawfully reentering\nthe United States after having been removed, and remanded\nfor resentencing, in a case in which the district court applied\na four-level increase to the offense level under U.S.S.G.\n§ 2L1.2 on the ground that, prior to his removal order, the\ndefendant had been convicted of a Washington state offense\npunishable by imprisonment for a term exceeding one year.\n\n In applying the four-level increase because the\ndefendant’s Washington conviction carried a general statutory\nmaximum term of imprisonment of five years, the district\ncourt applied this court’s precedent which required the\ndistrict court to disregard the maximum term that the\ndefendant actually could have received under state law. The\npanel held that this precedent is irreconcilable with later\nSupreme Court decisions—Carachuri-Rosendo v. Holder,\n560 U.S. 563 (2010), and Moncrieffe v. Holder, 569 U.S. 184\n(2013), which held that when determining whether an offense\nis “punishable” by a certain term of imprisonment, courts\nmust consider both a crime’s statutory elements and\nsentencing factors—and must be overruled.\n\n Because under the Washington statutes that prescribe a\nbinding sentencing range, the actual maximum term that the\ndefendant could have received was six months, the panel held\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. VALENCIA-MENDOZA 3\n\nthat the district court erred by concluding that the defendant’s\noffense was punishable by more than one year in prison.\n\n\n COUNSEL\n\nWilliam Miles Pope (argued), Federal Defenders of Eastern\nWashington & Idaho, Spokane, Washington, for\nDefendant-Appellant.\n\nMatthew F. Duggan (argued), Assistant United States\nAttorney; Joseph H. Harrington, United States Attorney;\nUnited States Attorney’s Office, Spokane, Washington; for\nPlaintiff-Appellee.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Defendant Jose Manuel Valencia-Mendoza pleaded guilty\nto unlawfully reentering the United States after having been\nremoved, in violation of 8 U.S.C. § 1326(a). At sentencing,\nthe district court applied a four-level increase to the total\noffense level, under United States Sentencing Guideline\n§ 2L1.2, because the court concluded that Defendant had\nbeen convicted of a “felony” under Washington law. The\ncommentary to § 2L1.2 defines “felony” as “any federal,\nstate, or local offense punishable by imprisonment for a term\nexceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2.\nDefendant’s conviction under Washington law carried a\ngeneral statutory maximum term of imprisonment of five\nyears. The district court faithfully applied our precedent and\nstopped its analysis there: Because the general statutory\n\f4 UNITED STATES V. VALENCIA-MENDOZA\n\nmaximum exceeded one year, the enhancement under § 2L1.2\napplied.\n\n But the actual maximum term that Defendant could have\nreceived was only six months, because Washington law\nimposed a mandatory sentencing range. Our precedent\nrequired the district court to disregard the maximum term that\nDefendant actually could have received under state law, in\nfavor of the maximum term that Defendant theoretically\ncould have received if different factual circumstances were\npresent. Reviewing de novo the interpretation of the\nSentencing Guidelines, United States v. Martinez, 870 F.3d\n1163, 1165 (9th Cir. 2017), we conclude that later Supreme\nCourt decisions are clearly irreconcilable with our precedent\non this point. Accordingly, we vacate the sentence and\nremand for resentencing.\n\n FACTUAL AND PROCEDURAL HISTORY\n\n In 2007, Defendant was convicted in Washington state\ncourt of possession of cocaine, in violation of Revised Code\nof Washington (“RCW”) section 69.50.4013.1 Defendant’s\nconviction was for a “class C felony punishable under chapter\n9A.20 RCW.” RCW § 69.50.4013(2). Section 9A.20.021\nprovided, in turn:\n\n Unless a different maximum sentence for\n a classified felony is specifically established\n by a statute, no person convicted of a\n classified felony shall be punished by\n confinement or fine exceeding the following:\n\n 1\n All citations to the RCW are to the version in effect in late 2007,\nwhen Defendant was indicted, convicted, and sentenced.\n\f UNITED STATES V. VALENCIA-MENDOZA 5\n\n ....\n\n (c) For a class C felony, by confinement in\n a state correctional institution for five years,\n or by a fine in an amount fixed by the court of\n ten thousand dollars, or by both such\n confinement and fine.\n\nThe general statutory maximum term of imprisonment for\nDefendant’s crime was, therefore, five years.\n\n But, in addition to providing statutory maximum terms,\nWashington law specified mandatory limits on criminal\nsentences. RCW section 9.94A.505 provided, at the relevant\ntime: “Unless another term of confinement applies, the court\nshall impose a sentence within the standard sentence range\nestablished in RCW 9.94A.510 or 9.94A.517.” (Emphasis\nadded.) Section 9.94A.517 applied to drug convictions and\nprovided a two-dimensional “[d]rug offense sentencing grid.”\nThe grid defined the “standard sentence range[]” for an\noffense, depending on the “seriousness level” and the\n“offender score.” RCW § 9.94A.517(1).\n\n Defendant’s crime had a “seriousness level” of “I.” See\nRCW § 9.94A.520 (“The offense seriousness level is\ndetermined by the offense of conviction.”); RCW\n§ 9.94A.518 (defining convictions under section 69.50.4013\nas having a seriousness level of “I”). The state court\ncalculated Defendant’s “offender score” as 0. See RCW\n§ 9.94A.525 (providing detailed calculation of “offender\nscore”). Turning back to the drug offense sentencing grid, the\n“standard sentence range” for seriousness level I and offender\nlevel 0 was “0 to 6 months.” RCW § 9.94A.517(1).\n\f6 UNITED STATES V. VALENCIA-MENDOZA\n\n If certain aggravating circumstances were present, the\nstatutes contained adjustments to that range. RCW\n§ 9.94A.533. For example, the presence or use of a firearm\ncould have resulted in a standard range that exceeded the\nsentencing range described in the two-dimensional chart.\nRCW § 9.94A.533(3)–(5). But none of those circumstances\nwas found to be present, so Defendant’s final standard range\nwas zero to six months.2 Defendant’s state criminal judgment\nsummarized the available sentence in a tidy table reproduced\nbelow.\n\nCOUNT NO. OFFENDER SERIOUSNESS LEVEL STANDARD Plus Enhancements Total STANDARD MAXIMUM TERM\n SCORE RANGE (not for Firearm (F), RANGE (including\n including other deadly enhancements)\n enhancements) weapon finding (D),\n VUCSA (V) in a\n protected zone,\n Veh. Hom. (VH).\n See RCW 46.61.520\n or Juvenile present\n (JP); Sexual\n Motivation (SM)\n\n 1 0 1 0 to 6 months N/A 0 to 6 months 5 years\n $10,000.00\n\n\n\n The calculation of the final standard range (sometimes\nreferred to as the “presumptive sentence”) does not end the\nstatutory analysis. Washington law allowed the sentencing\ncourt to deviate from the standard range—but only if certain\nstatutorily permitted findings were made. Section 9.94A.535,\ntitled “[d]epartures from the guidelines,” provided that “[t]he\n\n\n 2\n In most cases, the statutory maximum term of imprisonment acted\nas an absolute cap on the adjustments that could apply to the standard\nsentence range. That is, if the adjustments led to a standard sentence\nrange that exceeded the statutory maximum, then the standard sentence\nrange was the statutory maximum. Different rules applied, however, if the\ndefendant was a “persistent offender.” RCW § 9.94A.533(3)(g). In some\ncases, then, the defendant could have been sentenced to a term of\nimprisonment greater than the statutory maximum as defined in RCW\nsection 9.94A.505. That possibility in an exceptional case is not at issue\nhere and does not affect our analysis.\n\f UNITED STATES V. VALENCIA-MENDOZA 7\n\ncourt may impose a sentence outside the standard sentence\nrange for an offense if it finds, considering the purpose of this\nchapter, that there are substantial and compelling reasons\njustifying an exceptional sentence.” It further provided that\n“[w]henever a sentence outside the standard sentence range\nis imposed, the court shall set forth the reasons for its\ndecision in written findings of fact and conclusions of law.”\nRCW § 9.94A.535. (By contrast, sentences within the\nstandard range could be imposed without special descriptions.\nRCW § 9.94A.530(1).)\n\n Critically, whether “substantial and compelling reasons”\nexist was not an open-ended inquiry. The statute specified\ntwo categories of aggravating circumstances that permitted\ndeparture from the guidelines: findings by the sentencing\ncourt and findings by a jury. See RCW § 9.94A.535(2)\n(listing the four aggravating circumstances that could be\nfound by the sentencing court); RCW § 9.94A.535(3) (listing\nthe 26 aggravating circumstances that could be found by the\njury). If an aggravating circumstance was found, then the\nsentencing court could impose a sentence up to the statutory\nmaximum term. RCW § 9.94A.537(6). But unless one of the\nstatutorily specified aggravated circumstances was found, the\nsentencing court was required to impose a sentence within\nthe standard range. RCW § 9.94A.505.\n\n In Defendant’s case, as reflected on the face of the\ncriminal judgment, neither the court nor the jury found an\naggravating circumstance. Accordingly, Washington law\nrequired the sentencing court to impose a sentence within the\nfinal standard sentence range of zero to six months. The state\ncourt selected 30 days in jail.\n\f8 UNITED STATES V. VALENCIA-MENDOZA\n\n Following that conviction, Defendant was removed from\nthe United States. In 2016, the government indicted\nDefendant for unlawfully reentering the United States after\nhaving been removed, in violation of 8 U.S.C. § 1326(a).\nDefendant pleaded guilty, without a plea agreement.\n\n At sentencing, the district court applied a four-level\nenhancement under U.S.S.G. § 2L1.2. The relevant\nGuideline3 provided:\n\n If, before the defendant was ordered\n deported or ordered removed from the United\n States for the first time, the defendant\n sustained–\n\n ....\n\n (D) a conviction for any other felony\n offense (other than an illegal reentry offense),\n increase by 4 levels.\n\nU.S.S.G. § 2L1.2(b)(2) (2016); see also id. § 2L1.2(b)(1)(D)\n(2015) (using similar text). As noted, the commentary to the\nGuideline defined the term “felony”:\n\n “Felony” means any federal, state, or local\n offense punishable by imprisonment for a\n term exceeding one year.\n\n\n\n 3\n Defendant was sentenced on August 17, 2017, so the applicable\nversion of the Guidelines is the November 1, 2016 version. United States\nv. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012) (citing 18 U.S.C.\n§ 3553(a)(4)(A)(ii)); accord U.S.S.G. § 1B1.11(a).\n\f UNITED STATES V. VALENCIA-MENDOZA 9\n\nId. § 2L1.2 cmt. n.2 (2016); see also id. § 2L1.2 cmt. n.2\n(2015) (defining the term identically). The court concluded\nthat Defendant had sustained a felony conviction in\nWashington because the statutory maximum term of\nimprisonment for the drug conviction was five years. The\ncourt sentenced Defendant to 24 months of imprisonment.\nDefendant timely appeals, challenging only the four-level\nenhancement.\n\n DISCUSSION\n\n We must decide whether Defendant’s state conviction\nwas a “felony” for purposes of the federal Sentencing\nGuideline. According to the government, the statutory\nmaximum punishment for Defendant’s state offense was five\nyears, so he was convicted of an “offense punishable by\nimprisonment for a term exceeding one year.” U.S.S.G.\n§ 2L1.2 cmt. n.2. Defendant acknowledges the statutory\nmaximum but argues that, because the maximum sentence\nthat he actually could have received was only six months, he\nwas not convicted of an “offense punishable by imprisonment\nfor a term exceeding one year.” Id.\n\n A number of years ago, we sided with the government’s\nargument. In United States v. Rios-Beltran, 361 F.3d 1204,\n1208 (9th Cir. 2004), the defendant asserted that, under\nOregon law, “the maximum term of imprisonment the trial\ncourt could impose for his conviction was 90 days.” We\nrejected the relevance of the mandatory sentencing range\nunder state law:\n\n The actual sentence imposed on an\n individual for a prior conviction, or the actual\n sentence that potentially could have been\n\f10 UNITED STATES V. VALENCIA-MENDOZA\n\n imposed based upon the particular facts of\n that person’s case, is not the relevant inquiry.\n We look to the maximum penalty allowed by\n law in determining whether a prior conviction\n constitutes an aggravated felony under state\n law for purposes of § 2L1.2.\n\nId. The defendant “was convicted under an Oregon statute\nwhich carries a maximum term of imprisonment of five years.\nThe fact that the state’s ‘guideline’ sentence is less than that\ndoes not alter the statutory maximum.” Id. at 1209 (citations\nomitted).\n\n We used the same reasoning with respect to Washington’s\nsentencing scheme in United States v. Murillo, 422 F.3d 1152\n(9th Cir. 2005). The federal inquiry was whether the\ndefendant previously had been convicted of “a crime\npunishable by imprisonment for a term exceeding one year.”\nId. at 1153 (quoting 18 U.S.C. § 922(g)(1)). The defendant\nargued that, under Washington law,\n\n the maximum sentence a court may impose\n for a crime is defined by the maximum term\n that may be imposed based solely on the facts\n established by a guilty verdict. If no\n aggravating factors are pleaded and proved,\n then the maximum sentence must be\n considered the maximum of the range in the\n state’s sentencing guideline grid, not the\n maximum set by the state’s applicable\n criminal statute.\n\nId. at 1154. We disagreed: “the maximum sentence is the\nstatutory maximum sentence for the offense, not the\n\f UNITED STATES V. VALENCIA-MENDOZA 11\n\nmaximum sentence available in the particular case under the\nsentencing guidelines.” Id.; see also id. at 1155 (concluding\nthat the relevant maximum sentence is “the potential\nmaximum sentence defined by the applicable state criminal\nstatute, not the maximum sentence which could have been\nimposed against the particular defendant for his commission\nof that crime according to the state’s sentencing guidelines”);\nsee also United States v. Crawford, 520 F.3d 1072, 1079–80\n(9th Cir. 2008) (applying Murillo’s holding to the\ndetermination under federal Guideline § 4B1.2(b) whether a\nWashington conviction was for “an offense under federal or\nstate law, punishable by imprisonment for a term exceeding\none year”).\n\n Unless there is a higher intervening authority, those cases\ncontrol. We conclude that our earlier holdings are “clearly\nirreconcilable,” Miller v. Gammie, 335 F.3d 889, 899–900\n(9th Cir. 2003) (en banc), with two later Supreme Court\nprecedents: Carachuri-Rosendo v. Holder, 560 U.S. 563\n(2010), and Moncrieffe v. Holder, 569 U.S. 184 (2013).\n\n In Carachuri-Rosendo, the Board of Immigration Appeals\nconcluded that the petitioner had been convicted of an\n“aggravated felony” under the immigration laws. 560 U.S. at\n571–72. The petitioner’s earlier conviction was in Texas\nstate court for simple possession of a controlled substance.\nId. at 570–71. Before that, the petitioner had been convicted\nof a separate drug crime under state law. Id. at 570.\nUnderstanding the federal statutory term “aggravated felony”\nrequired navigating a “maze of statutory cross-references,”\nwhich asked in part whether the crime was a “drug\ntrafficking” crime. Id. at 567. The courts had to determine\nwhether the petitioner’s conduct was “punishable” as a felony\nunder federal criminal laws. Id. at 566–70. “A felony is a\n\f12 UNITED STATES V. VALENCIA-MENDOZA\n\ncrime for which the ‘maximum term of imprisonment\nauthorized’ is ‘more than one year.’” Id. at 567 (quoting 18\nU.S.C. § 3559(a)).\n\n Title 21 U.S.C. § 844(a) governs simple possession under\nfederal law. It provided, in relevant part:\n\n Any person who violates this subsection may\n be sentenced to a term of imprisonment of not\n more than 1 year, . . . except that if he\n commits such offense after . . . a prior\n conviction for any drug, narcotic, or chemical\n offense chargeable under the law of any State,\n has become final, he shall be sentenced to a\n term of imprisonment for . . . not more than 2\n years . . . .\n\n21 U.S.C. § 844(a) (2010). The Supreme Court noted that,\nalthough a prior conviction need not be found by a jury, the\nCourt would nevertheless describe the crime as two separate\ncrimes: “first-time simple possession” (a misdemeanor\nbecause the maximum penalty is one year) and “recidivist\nsimple possession” (a felony because the maximum penalty\nis more than one year). Carachuri-Rosendo, 560 U.S. at\n567–68 & n.3. The Court also noted that, to prove recidivist\nsimple possession, the prosecutor must provide pretrial\nnotice. Id. at 568–69. The government argued that the\npetitioner’s crime was punishable under federal law by more\nthan one year of imprisonment because, had the petitioner\nbeen prosecuted federally, the federal prosecutor could have\nalleged the petitioner’s prior conviction and, accordingly,\nconvicted him of recidivist simple possession, a felony. Id. at\n570.\n\f UNITED STATES V. VALENCIA-MENDOZA 13\n\n The Court rejected the government’s position and the\nmore generic “hypothetical approach” for five reasons. Id. at\n575–81. First, “and most fundamentally,” the government’s\nargument ignored the fact that the petitioner had been\nconvicted in state court of only simple possession, not\nrecidivist simple possession. Id. at 576–77. Second, as\nnoted, in order to convict a defendant under federal law of\nrecidivist simple possession, the government must give notice\nand an opportunity to defend against that charge. Id. at 578.\nThe petitioner had not received such notice, even though\nTexas law allows for a similar procedural mechanism; to\npermit an immigration judge to rule that the petitioner could\nhave been convicted of recidivism “would denigrate the\nindependent judgment of state prosecutors to execute the laws\nof those sovereigns.” Id. at 580. Third, the government’s\nposition misapplied the Court’s precedent:\n\n Not only does the Government wish us to\n consider a fictional federal felony—whether\n the crime for which Carachuri–Rosendo was\n actually convicted would be a felony under\n the Controlled Substances Act—but the\n Government also wants us to consider facts\n not at issue in the crime of conviction (i.e., the\n existence of a prior conviction) to determine\n whether Carachuri–Rosendo could have been\n charged with a federal felony. This\n methodology is far removed from the more\n focused, categorical inquiry employed in [an\n earlier case].\n\nId. Fourth, the government’s position is inconsistent with\nfederal prosecutorial practice: “The Government’s\n‘hypothetical’ approach to this case is therefore misleading as\n\f14 UNITED STATES V. VALENCIA-MENDOZA\n\nwell as speculative, in that Carachuri–Rosendo’s\nfederal-court counterpart would not, in actuality, have faced\nany felony charge.” Id. at 581. Finally, ambiguities in\ncriminal laws should be construed in the non-citizen’s favor.\nId.\n\n In Moncrieffe, 569 U.S. at 188, the Supreme Court\nanalyzed the same maze of federal statutory cross-references,\nbeginning with the immigration law’s term “aggravated\nfelony.”\n\n The upshot is that a noncitizen’s conviction of\n an offense that the [Federal] Controlled\n Substances Act (CSA) makes punishable by\n more than one year’s imprisonment will be\n counted as an “aggravated felony” for\n immigration purposes. A conviction under\n either state or federal law may qualify, but a\n state offense constitutes a “felony punishable\n under the Controlled Substances Act” only if\n it proscribes conduct punishable as a felony\n under that federal law.\n\nId. (some internal quotation marks omitted). The petitioner\nhad pleaded guilty, in Georgia state court, to possession with\nintent to distribute a small amount of marijuana. Id. at\n188–89. The Board of Immigration Appeals held that the\nconviction constituted an “aggravated felony” for\nimmigration purposes, and the Fifth Circuit denied the\npetition for review. Id. at 189. The Supreme Court reversed.\nId. at 190.\n\n Under the statutory scheme at issue, “to satisfy the\ncategorical approach, a state drug offense must meet two\n\f UNITED STATES V. VALENCIA-MENDOZA 15\n\nconditions: It must ‘necessarily’ proscribe conduct that is an\noffense under the CSA, and the CSA must ‘necessarily’\nprescribe felony punishment for that conduct.” Id. at 192.\nTurning to the CSA, the Court noted that possession of\nmarijuana with intent to distribute is a federal crime under 21\nU.S.C. § 841(a)(1). Id. The Court then held that “we must\nlook to what punishment the CSA imposes for this offense.”\nId. at 193.\n\n Section 841(b)(1)(D) provides:\n\n In the case of less than 50 kilograms of\n marihuana, . . . such person shall, except as\n provided in paragraphs (4) and (5) of this\n subsection, be sentenced to a term of\n imprisonment of not more than 5 years . . . .\n\nParagraph (4), in turn, provides:\n\n Notwithstanding paragraph (1)(D) of this\n subsection, any person who violates\n subsection (a) of this section by distributing a\n small amount of marihuana for no\n remuneration shall be treated as [a simple\n drug possessor, subject to no more than a year\n in prison].\n\n21 U.S.C. § 841(b)(4). “These dovetailing provisions create\ntwo mutually exclusive categories of punishment for CSA\nmarijuana distribution offenses: one a felony, and one not.\nThe only way to know whether a marijuana distribution\noffense is punishable as a felony under the CSA is to know\nwhether the conditions described in paragraph (4) are present\nor absent.” Moncrieffe, 569 U.S. at 194 (internal quotation\n\f16 UNITED STATES V. VALENCIA-MENDOZA\n\nmarks and citation omitted). Because Georgia law does not\nrequire proof of remuneration, the record was ambiguous. Id.\n“Ambiguity on this point means that the conviction did not\n‘necessarily’ involve facts that correspond to an offense\npunishable as a felony under the CSA.” Id. at 194–95.\n\n The government had argued that paragraph (4) was\nmerely a mitigating “sentencing factor,” not an “element” of\nthe offense, so the “offense” was punishable by more than a\nyear. Id. at 195. The Court disagreed that the label mattered,\nlargely because of the reasoning of Carachuri-Rosendo:\n\n [The government’s position] is inconsistent\n with Carachuri–Rosendo, our only decision to\n address both “elements” and “sentencing\n factors.” There we recognized that when\n Congress has chosen to define the generic\n federal offense by reference to punishment, it\n may be necessary to take account of federal\n sentencing factors too. See 130 S. Ct., at\n 2581–2582. In that case the relevant CSA\n offense was simple possession, which\n “becomes a ‘felony punishable under the\n [CSA]’ only because the sentencing factor of\n recidivism authorizes additional punishment\n beyond one year, the criterion for a felony.”\n Id., 130 S. Ct., at 2590 (SCALIA, J.,\n concurring in judgment). We therefore called\n the generic federal offense “recidivist simple\n possession,” even though such a crime is not\n actually “a separate offense” under the CSA,\n but rather an “‘amalgam’” of offense elements\n and sentencing factors.\n\f UNITED STATES V. VALENCIA-MENDOZA 17\n\n In other words, not only must the state\n offense of conviction meet the “elements” of\n the generic federal offense defined by the\n INA, but the CSA must punish that offense as\n a felony. Here, the facts giving rise to the\n CSA offense establish a crime that may be\n either a felony or a misdemeanor, depending\n upon the presence or absence of certain\n factors that are not themselves elements of the\n crime. And so to qualify as an aggravated\n felony, a conviction for the predicate offense\n must necessarily establish those factors as\n well.\n\nMoncrieffe, 569 U.S. at 195–96 (one citation omitted).\n\n The outcome in a hypothetical prosecution is\n not the relevant inquiry. Rather, our “more\n focused, categorical inquiry” is whether the\n record of conviction of the predicate offense\n necessarily establishes conduct that the CSA,\n on its own terms, makes punishable as a\n felony. . . . [W]e made clear in\n Carachuri–Rosendo that, for purposes of the\n INA, a generic federal offense may be defined\n by reference to both “‘elements’ in the\n traditional sense” and sentencing factors.\n\nId. at 197–98 (citations omitted).\n\n Although those Supreme Court cases arose under\ndifferent statutes, they are central to our analysis here. The\ncases concerned the interpretation of immigration laws and\nfederal crimes under the Controlled Substances Act. Here, by\n\f18 UNITED STATES V. VALENCIA-MENDOZA\n\ncontrast, we must interpret the meaning of Sentencing\nGuideline § 2L1.2. We recognize that\n\n “[t]he clearly irreconcilable requirement is a\n high standard.” United States v. Robertson,\n 875 F.3d 1281, 1291 (9th Cir. 2017)\n (quotation marks omitted). Accordingly, “[i]t\n is not enough for there to be some tension\n between the intervening higher authority and\n prior circuit precedent, or for the intervening\n higher authority to cast doubt on the prior\n circuit precedent.” Id. “So long as the court\n can apply our prior circuit precedent without\n running afoul of the intervening authority it\n must do so.” Id. (quotation marks omitted).\n\nClose v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018)\n(second alteration in original). But we are persuaded that our\nearlier precedents cannot survive.\n\n The Washington statute, like the federal CSA, defined\nonly one crime by elements. Moncrieffe, 569 U.S. at 195–96.\nAnd the Washington statute, like the federal CSA, imposed\ndifferent statutory maximum sentences depending on an\namalgam of elements and sentencing factors. Id. We held in\nRios-Beltran, Murillo, and Crawford that, when considering\nwhether a crime is “punishable” by more than one year, we\nwould look solely to the statutory maximum term of\nimprisonment that corresponds to the elements of the crime\ncharged; we declined to consider sentencing factors. But in\nCarachuri-Rosendo and Moncrieffe, the Supreme Court held\nthat, when considering whether a crime is “punishable” by\nmore than one year, the court must examine both the elements\nand the sentencing factors that correspond to the crime of\n\f UNITED STATES V. VALENCIA-MENDOZA 19\n\nconviction. Accordingly, we hold that our earlier precedents\nare irreconcilable with Carachuri-Rosendo and Moncrieffe\nand must be overruled.\n\n The Supreme Court’s decision in United States v.\nRodriquez, 553 U.S. 377 (2008), is not to the contrary.\nThere, the Supreme Court assessed the meaning of the\nstatutory phrase “‘maximum term of imprisonment . . .\nprescribed by law.’” Id. at 380 (quoting 18 U.S.C.\n§ 924(e)(2)(A)(ii)). The Court held that Congress intended\nfor courts to consider recidivist sentencing enhancements in\ndetermining the maximum term of imprisonment. Id. at 393.\nIn its analysis, the Court rejected the notion that the top\nsentence of a mandatory guidelines range—Washington\nstate’s guidelines in particular—was a relevant consideration.\nId. at 390–93. First, the Court held that the top sentence is\nnot truly the maximum because Washington law at the\nrelevant time permitted a sentencing judge to deviate for any\nsubstantial and compelling reason; that discretion was not\nlimited by statute. Id. at 390–91 & n.5. Second, the Court\nheld that the specific concept of the “maximum term of\nimprisonment” was always understood to mean the statutory\nmaximum, without regard to sentencing factors. Id. at\n391–92.\n\n Two important distinctions make Rodriquez irrelevant to\nour analysis. First, unlike the statutory question at issue\nthere—what is the “maximum term of imprisonment . . .\nprescribed by law”—the question at issue here is whether\nDefendant was convicted of an offense “punishable” by more\nthan one year. “Punishable” suggests a realistic look at what\na particular defendant actually could receive, whereas\n“maximum term of imprisonment . . . prescribed by law”\n\f20 UNITED STATES V. VALENCIA-MENDOZA\n\nsuggests a mechanistic examination of the highest possible\nterm in the statute.\n\n Second, Washington law is now materially more\nrestrictive than it was at the time of the relevant events in\nRodriquez. Under Washington law when Defendant was\nconvicted, the sentencing court could not deviate from the\nstatutory sentencing range unless it found that one of four\nspecific factual circumstances was present. It is plain from\nthe state criminal judgment that the sentencing court did not\nfind any of those circumstances, so the sentencing court was\nbound by the statutory sentencing range. In other words, the\ntop sentence of the guidelines range was the maximum\npossible statutory punishment. See United States v.\nRockymore, 909 F.3d 167, 172 (6th Cir. 2018) (“Because the\nstate [of Tennessee] did not seek a higher range when\nprosecuting Rockymore, he accordingly was never subject to\nthe enhancements. Therefore, the ‘maximum term of\nimprisonment’ that he could have received was [the\nmaximum term defined by the statutory sentencing\nguidelines].”). That distinction—between (as here)\nstatutorily defined factual circumstances and (as in\nRodriquez) an open-ended inquiry into any potential factual\ncircumstance—is important because it defines the maximum\npossible punishment assigned by the legislature. See id. at\n171 (holding that, to determine the maximum term of\nimprisonment under Tennessee law and Rodriquez, the court\nmust look to the mandatory sentencing scheme, including the\n“offender-based” attributes).\n\n Our holding today accords with decisions by several sister\ncircuits. Both the Eighth and Tenth Circuits have held that,\nwhen determining whether a Kansas offense is “punishable”\nby more than one year in prison, the Supreme Court’s recent\n\f UNITED STATES V. VALENCIA-MENDOZA 21\n\ncases require an examination of the maximum sentence\npossible under the state’s mandatory sentencing guidelines.\nUnited States v. Brooks, 751 F.3d 1204, 1209–13 (10th Cir.\n2014); United States v. Haltiwanger, 637 F.3d 881, 883–84\n(8th Cir. 2011). Similarly, the Fourth Circuit has held that,\nwhen determining whether a North Carolina offense is\n“punishable” by a prison term of more than one year, the\nSupreme Court’s recent cases require the court to consider the\nmaximum sentence possible under the state’s mandatory\nsentencing guidelines. United States v. Simmons, 649 F.3d\n237 (4th Cir. 2011) (en banc). We are aware of no relevant\ncircuit precedent to the contrary.4\n\n 4\n Our holding today also finds a surprising ally: the government’s\nposition in several cases in the Fifth Circuit. For example, in a case\ninvolving the mandatory sentencing regime in Oregon, the government\nasserted, in a motion to remand for resentencing:\n\n To be “punishable” as a felony—that is, by\n imprisonment for a term exceeding one year—a prior\n state conviction must establish all the elements and\n sentencing factors necessary to authorize the\n punishment beyond one year. See Moncrieffe, 133 S.\n Ct. at 1685-87; Carachuri-Rosendo, 560 U.S. at\n 569-70. The presumptive sentences in each of\n Martinez’s cases—the maximum sentence the state\n court could impose without additional fact-finding—are\n below one year, so that neither prior conviction counts\n as a “felony.”\n\nUnited States v. Martinez, No. 14-41020, United States’ Agreed Motion\nfor Summary Remand (5th Cir. Jan. 14, 2015) (one citation truncated);\naccord United States v. Zacarias-Lopez, No. 13-41011, Government’s\nAgreed Motion for Summary Remand (5th Cir. Oct. 22, 2014); United\nStates v. Garcia-Duarte, No. 14-40516, United States’ Agreed Motion for\nSummary Remand (5th Cir. Oct. 30, 2014); see also Brooks, 751 F.3d at\n1213 n.7 (reviewing briefs filed by the government in cases originating in\nthe Sixth Circuit and concluding that “the Government has seemingly\n\f22 UNITED STATES V. VALENCIA-MENDOZA\n\n In sum, the Supreme Court has held that courts must\nconsider both a crime’s statutory elements and sentencing\nfactors when determining whether an offense is “punishable”\nby a certain term of imprisonment. Here, we are called on to\ndecide whether Defendant’s earlier offense was punishable\nunder Washington law by more than one year, and we can no\nlonger follow our earlier precedents that eschewed\nconsideration of mandatory sentencing factors. As noted,\nWashington statutes prescribe a required sentencing range\nthat binds the sentencing court. The sentencing range can be\nmodified, or rendered inapplicable altogether, if but only if\nthe judge or the jury makes certain factual findings. In this\ncase, no such finding was made, so the court was bound to\nadhere to the statutory sentencing range. Defendant’s\noffense—as actually prosecuted and adjudicated—was\npunishable under Washington law by no more than six\nmonths in prison. The district court therefore erred by\nconcluding that his offense was punishable by more than one\nyear in prison.\n\n Sentence VACATED; REMANDED for resentencing.\n\n\n\n\ntaken contradictory positions on this issue in different federal courts”).\nThe government has failed to explain, either in briefing or at oral\nargument, why its position has changed. Although the government’s\nabout-face does not affect our analysis, we note that some Justices have\nconcluded that “serious questions are raised when the sovereign itself\ntakes inconsistent positions in two separate criminal proceedings against\ntwo of its citizens.” Bradshaw v. Stumpf, 545 U.S. 175, 189 (2005)\n(Souter, J., joined by Ginsburg, J., concurring) (quoting Jacobs v. Scott,\n513 U.S. 1067, 1070 (1995) (Stevens, J., dissenting from the denial of\ncertiorari)).\n[END_CASE]", "role": "user" } ]
4,580,575		Paul Dachauer v. Nbty, Inc.	2019-01-10	17-16242	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, Susan P. Graber, Circuit Judge, and Leslie E. Kobayashi,* District Judge.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n PAUL DACHAUER, On Behalf No. 17-16242\n of Himself and All Others\n Similarly Situated, D.C. No.\n Plaintiff-Appellant, 3:16-cv-00216-VC\n\n v.\n OPINION\n NBTY, INC., a Delaware\n corporation; NATURE’S\n BOUNTY, INC., a Delaware\n corporation,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Vince Chhabria, District Judge, Presiding\n\n Argued and Submitted November 13, 2018\n San Francisco, California\n\n Filed January 10, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, Susan P. Graber,\n Circuit Judge, and Leslie E. Kobayashi,* District Judge.\n\n Opinion by Judge Graber\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge for\nthe District of Hawaii, sitting by designation.\n\f2 DACHAUER V. NBTY, INC.\n\n SUMMARY\n\n\n California Law / Federal Preemption\n\n The panel affirmed the district court’s summary judgment\nin favor of makers of vitamin E supplements in a\nplaintiff/consumer’s action alleging that the labels on the\nsupplements violated California laws against false\nadvertising.\n\n For dietary supplements, the Federal Food, Drug, and\nCosmetic Act (“FDCA”) distinguishes between “disease\nclaims” and “structure/function claims” that manufacturers\nmake about their products. A structure/function claim\ndescribes the role of a dietary ingredient, but may not claim\nto mitigate a specific disease. 21 U.S.C. § 343(r)(6).\nAlthough the FDCA requires manufacturers to have\nsubstantiation for their structure/function claims, California\nlaw does not allow private plaintiffs to demand substantiation\nfor advertising claims.\n\n The panel held that § 343-1(a)(5) of the FDCA expressly\npreempts state-law requirements for claims about dietary\nsupplements that differ from the FDCA’s requirements. The\npanel further held that, as applied here, § 343-1(a)(5)\npreempted most of plaintiff’s claims. Specifically, the panel\nheld that § 343-1(a)(5) preempted plaintiff’s claims to the\nextent that he argued that defendants’ structure/function\nclaims were false or misleading because their supplements\ndid not prevent cardiovascular disease. The panel also held\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f DACHAUER V. NBTY, INC. 3\n\nthat because the FDCA and California law have the same\nlabeling requirement with respect to failing to disclose an\nincreased risk of death, § 343-1(a)(5) did not preempt this\nparticular aspect of plaintiff’s case.\n\n The panel held that the record lacked evidence that\nvitamin E supplements are actually harmful, as opposed to\nsimply useless at reducing all-cause mortality (which they do\nnot claim to reduce). The panel concluded that, on this\nrecord, plaintiff failed to meet his burden to create a genuine\nissue of material fact as to whether defendants’ immune-\nhealth structure/function claim was misleading.\n\n\n COUNSEL\n\nStewart Weltman (argued), SIPRUT PC, Chicago, Illinois;\nMax A. Stein and Nada Djordjevic, Boodell & Domanskis,\nLLC, Chicago, Illinois; Patricia N. Syverson and Manfred\nMuecke, Bonnett, Fairbourn, Friedman & Balint, P.C., San\nDiego, California; Elaine Ryan, Bonnett, Fairbourn, Friedman\n& Balint, P.C., Phoenix, Arizona; for Plaintiff-Appellant.\n\nRobert Andalman (argued) and Rachael Blackburn, A&G\nLaw, LLC, Chicago, Illinois; William A. Delgado, Willenken\nWilson Loh & Delgado LLP, Los Angeles, California; for\nDefendants-Appellees.\n\f4 DACHAUER V. NBTY, INC.\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Defendants NBTY, Inc., and Nature’s Bounty, Inc., make\nvitamin E supplements that claim, on their labels, to “support\ncardiovascular health” and to “promote[] immune function,”\n“immune health,” “heart health,” and “circulatory health.”1\nPlaintiff Paul Dachauer purchased one bottle of the\nsupplements for health reasons. He claims that the labels’\nstatements violate two California laws against false\nadvertising, because the supplements do not prevent\ncardiovascular disease and might increase the risk of all-\ncause mortality. The district court disagreed and granted\nDefendants’ motion for summary judgment. Reviewing de\nnovo, and viewing the evidence in the light most favorable to\nPlaintiff, Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)\n(en banc), we affirm.\n\n A. Relevant Statutes and Regulations\n\n Plaintiff sued under California’s Unfair Competition Law,\nCal. Bus. & Prof. Code § 17200, and Consumers Legal\nRemedies Act, Cal. Civ. Code § 1770. Both statutes prohibit:\n(1) false advertising; and (2) advertising that is literally true,\nbut which is “actually misleading or which has a capacity,\nlikelihood or tendency to deceive or confuse the public.”\nWilliams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.\n2008) (quoting Kasky v. Nike, Inc., 45 P.3d 243, 250 (Cal.\n2002)). Our analysis, however, centers on the Federal Food,\nDrug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301–399i,\nand its implementing regulations.\n\n 1\n The Appendix includes two examples of the labels.\n\f DACHAUER V. NBTY, INC. 5\n\n For dietary supplements, the FDCA distinguishes between\n“disease claims” and “structure/function claims” that\nmanufacturers make about their products. A\nstructure/function claim “describes the role of a nutrient or\ndietary ingredient intended to affect the structure or function\nin humans” or “characterizes the documented mechanism by\nwhich a nutrient or dietary ingredient acts to maintain such\nstructure or function,” but “may not claim to diagnose,\nmitigate, treat, cure, or prevent a specific disease or class of\ndiseases.” 21 U.S.C. § 343(r)(6) (emphasis added). A\ndisease claim, conversely, “claims to diagnose, mitigate,\ntreat, cure, or prevent disease,” either explicitly or implicitly\n(such as by claiming that a product treats a disease’s\n“characteristic signs or symptoms”). 21 C.F.R.\n§ 101.93(g)(2)(ii). Structure/function claims must meet three\nrequirements: (1) the manufacturer has substantiation that the\nstatement is truthful and not misleading; (2) the statement\ncontains a prominent disclaimer that the Food and Drug\nAdministration (“FDA”) has not evaluated the statement and\nthat the product “is not intended to diagnose, treat, cure, or\nprevent any disease”; and (3) the statement itself does not\n“claim to diagnose, mitigate, treat, cure, or prevent” disease.\n21 U.S.C. § 343(r)(6).\n\n The FDA has published guidance in the Federal Register\ndiscussing, among other things, acceptable structure/function\nclaims. Regulations on Statements Made for Dietary\nSupplements Concerning the Effect of the Product on the\nStructure or Function of the Body, 65 Fed. Reg. 1000-01 (Jan.\n6, 2000). The guidance recognizes that structure/function\nclaims may use general terms such as “strengthen,”\n“improve,” and “protect,” as long as the claims “do not\nsuggest disease prevention or treatment.” Id. at 1028. For\nexample, the guidance identifies the phrase “helps maintain\n\f6 DACHAUER V. NBTY, INC.\n\ncardiovascular function and a healthy circulatory system” as\na permissible structure/function claim. Id. at 1012; see also\nid. at 1029 (The “FDA does not agree that . . . ‘supports the\nimmune system’” implies disease prevention.). The guidance\nfurther explains that manufacturers of supplements can\nsubstantiate structure/function claims with evidence of an\neffect on a small aspect of the related structure/function,\nrather than with evidence of an effect on the main disease that\nconsumers might associate with a given bodily structure or\nfunction. See id. at 1012 (“For example, to substantiate the\nclaim ‘supports mood,’ it is not necessary to study the effects\nof a substance on clinical depression. Instead, it is quite\npossible to assess the effects of a substance on mood changes\nthat do not constitute clinical depression.”).\n\n Although the FDCA requires manufacturers to have\nsubstantiation for their structure/function claims, California\nlaw does not allow private plaintiffs to demand substantiation\nfor advertising claims. Nat’l Council Against Health Fraud,\nInc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 213–14\n(Ct. App. 2003). Instead, a private plaintiff bears the burden\nof producing evidence to prove that the challenged statement\nis false or misleading. Id.\n\n B. Preemption\n\n The FDCA expressly preempts any state law that\nestablishes “any requirement respecting any claim of the type\ndescribed in section 343(r)(1) of this title made in the label or\nlabeling of food that is not identical to the requirement of\nsection 343(r) of this title.” 21 U.S.C. § 343-1(a)(5).\nDefendants argue that § 343-1(a)(5) preempts Plaintiff’s\nclaims because he seeks to impose labeling requirements\nunder California law that differ from the FDCA’s\n\f DACHAUER V. NBTY, INC. 7\n\nrequirements. Although the district court did not reach the\nissue of preemption, we may affirm on that ground because\nDefendants raised the issue below, and it is a threshold legal\nissue. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757\n(9th Cir. 2015).\n\n The preemption provision governs claims “of the type\ndescribed in section 343(r)(1).” 21 U.S.C. § 343-1(a)(5).\nSection 343(r)(6), which establishes the requirements for\nstructure/function claims, falls under subsection (r)(1)’s\numbrella. See id. § 343(r)(6) (“For purposes of paragraph\n(r)(1)(B), a statement for a dietary supplement may be made\nif . . . .” (emphasis added)). So, a structure/function claim\nmade under § 343(r)(6) is a “claim of the type described in\nsection 343(r)(1).” Also, the FDCA classifies dietary\nsupplements as food; indeed, § 343-1 (“National uniform\nnutrition labeling”) and § 343 (“Misbranded food”) fall under\nthe FDCA’s “Food” subchapter. Thus, a structure/function\nclaim also constitutes a claim “made in the label or labeling\nof food.” Id. § 343-1(a)(5). Accordingly, we hold that § 343-\n1(a)(5) preempts state-law requirements for claims about\ndietary supplements that differ from the FDCA’s\nrequirements.\n\n As applied here, § 343-1(a)(5) preempts most of\nPlaintiff’s claims. We first address Defendants’\nstructure/function claims that their supplements promote and\nsupport cardiovascular, circulatory, and heart health. Plaintiff\nargues that those claims are false because the supplements do\nnot prevent cardiovascular disease.\n\n Plaintiff’s expert witness, Edgar Miller, Ph.D., M.D.,\noffered ample evidence that vitamin E supplements, taken in\nthe doses that Defendants sell, fail to prevent cardiovascular\n\f8 DACHAUER V. NBTY, INC.\n\ndisease. In Dr. Miller’s view, no metric except the absence or\npresence of cardiovascular disease can measure heart health\n(and, accordingly, no other metric can demonstrate whether\na supplement promotes or supports heart health). In essence,\nDr. Miller rejects the discrete categories of claims that the\nFDCA establishes; by definition, structure/function claims do\nnot and may not claim to treat or prevent disease. Id.\n§ 343(r)(6); 21 C.F.R. § 101.93(g)(2). And Defendants’\nlabels do not claim that their vitamin E supplements treat or\nprevent cardiovascular disease. Yet Plaintiff seeks to impose\na requirement under California law that structure/function\nclaims—at least those related to cardiovascular, circulatory,\nand heart health—made on a supplement’s label require proof\nthat the supplement treats or prevents cardiovascular disease.2\nThat requirement “is not identical to the requirement of\nsection 343(r).” 21 U.S.C.§ 343-1(a)(5).\n\n On appeal, Plaintiff argues that it does not matter whether\nhe categorizes Defendants’ claims as structure/function\nclaims or as disease claims, because he addressed the falsity\nof the labels’ text. To the contrary, it matters very much.\nPlaintiff’s argument would vitiate the FDCA’s distinction\nbetween disease claims and structure/function claims. The\nFDA allows manufacturers of supplements to make general\nclaims—such as “promotes heart health”—and to substantiate\n\n\n 2\n Plaintiff suggests that we should grant him leave to amend his\ncomplaint to allege that Defendants make false implied-disease claims\ninstead of structure/function claims. But Plaintiff had a chance to raise\nimplied-disease claims, and he expressly told the district court that he had\nno such claims. Moreover, Plaintiff never requested leave from the\ndistrict court to amend his complaint, so his request on appeal comes too\nlate. See Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913,\n917 n.1 (9th Cir. 2002) (declining the plaintiff’s request, made for the first\ntime on appeal, for leave to amend its complaint).\n\f DACHAUER V. NBTY, INC. 9\n\nthem with evidence that a supplement has some structural or\nfunctional effect on a given part of the human body. 65 Fed.\nReg. at 1012. Manufacturers need not also have evidence that\nthose structural or functional effects reduce the risk of\ndeveloping a certain disease. See Kaufman v. CVS Caremark\nCorp., 836 F.3d 88, 95 (1st Cir. 2016) (rejecting the\nplaintiff’s argument that “evidence showing a supplement\ndoes not reduce heart disease necessarily implies that the\nnutrient itself has no function in maintaining heart health”).\nPlaintiff disagrees with the federal statutory scheme for\ndietary supplements, but we cannot accept his invitation to\nupend it. We hold that § 343-1(a)(5) preempts Plaintiff’s\nclaims to the extent that he argues that Defendants’\nstructure/function claims are false or misleading because their\nsupplements do not prevent cardiovascular disease.\n\n As for Defendants’ structure/function claim that their\nsupplements promote immune health, Plaintiff argues that the\nclaim is false and misleading, either because the supplements\nfail to reduce all-cause mortality or because the supplements\nincrease the risk of all-cause mortality. The FDCA does not\nrequire that manufacturers substantiate structure/function\nclaims about immune health with proof that their supplements\nreduce the risk of all-cause mortality. 21 U.S.C. § 343(r)(6).\n(Nor do Defendants claim that their supplements reduce that\nrisk.) Because any such requirement under California law\nwould differ from the FDCA’s labeling requirements, the\nFDCA preempts Plaintiff’s claim to the extent that he argues\nthat Defendants make a false structure/function claim because\ntheir supplements fail to reduce the risk of all-cause\nmortality.\n\n But the FDCA does not preempt Plaintiff’s claim that\nDefendants’ structure/function claim about immune health is\n\f10 DACHAUER V. NBTY, INC.\n\nmisleading because their supplements increase the risk of all-\ncause mortality. FDCA regulations state that a food label\n“shall be deemed to be misleading if it fails to reveal facts”\nthat are “[m]aterial with respect to consequences which may\nresult from use of the article” under normal conditions of use\nor the conditions of use that the label prescribes. 21 C.F.R.\n§ 1.21(a)(2). In other words, if a supplement’s label\nrecommends taking one capsule per day, and that dose\nactually causes an increased risk of death—a material fact\n“with respect to consequences which may result from use of\nthe article”—the FDCA would deem it misleading not to\nreveal that fact on the label. Id.; see also Kaufman, 836 F.3d\nat 96 (noting that a structure/function claim would be\nmisleading if it “fail[ed] to disclose the harmful aspects of the\nnutrient’s structure/function”).\n\n Likewise, a label that omitted that fact would be\nmisleading under California law. The associated\nstructure/function claim would have “a capacity, likelihood\nor tendency to deceive or confuse the public,” because a\nreasonable consumer would not expect to suffer an increased\nrisk of death from taking the product. Williams, 552 F.3d at\n938 (quoting Kasky, 45 P.3d at 250). Because the FDCA and\nCalifornia law have the same labeling requirement with\nrespect to failing to disclose an increased risk of death, § 343-\n1(a)(5) does not preempt this particular aspect of Plaintiff’s\ncase. Thus, we address whether Plaintiff created a genuine\nissue of material fact as to whether the immune-health claim\nis misleading.\n\f DACHAUER V. NBTY, INC. 11\n\n C. Defendants’ Immune-Health Claim\n\n Conceivably, evidence that a supplement endangered\nusers by increasing their risk of death could prove that a\nstructure/function claim that omitted the risk was misleading.\nBut the record lacks evidence that vitamin E supplements are\nactually harmful, as opposed to simply useless at reducing\nall-cause mortality (which they do not claim to reduce).\n\n At best, the record reveals, in Dr. Miller’s words, a\n“small” correlation between high-dose vitamin E\nsupplements (which Defendants sell) and an increased risk of\nall-cause mortality. Miller cited four meta-analyses3 for this\npoint, but none of them concluded that vitamin E supplements\ncaused an increased risk of all-cause mortality. See, e.g.,\nGoran Bjelakovic et al., Mortality in Randomized Trials of\nAntioxidant Supplements for Primary and Secondary\nPrevention, 297 J. Am. Med. Ass’n 842, 842, 854 (2007)4\n(concluding that “vitamin E may increase mortality,” but also\nstating that “[w]e are not able to determine the cause of the\nincreased mortality” (emphasis added)). And, as the term\n“all-cause mortality” suggests, the record contains no\nevidence about the actual cause of death for any of those\nincluded in the studies. Those causes could include many\nthings unrelated to vitamin E supplements or immune\nfunction, such as suicide or a car accident. Without more, no\nreasonable jury could conclude that Defendants misleadingly\n“fail[ed] to disclose the harmful aspects of the nutrient’s\nstructure/function.” Kaufman, 836 F.3d at 96. In summary,\n\n\n 3\n A meta-analysis combines results from multiple clinical trials to\ndraw broader conclusions about the subject under study.\n 4\n Available at: http://dcscience.net/bjelakovic-supplements-07.pdf.\n\f12 DACHAUER V. NBTY, INC.\n\nwe hold that, on this record, Plaintiff failed to meet his\nburden to create a genuine issue of material fact as to whether\nDefendants’ immune-health structure/function claim is\nmisleading.\n\n AFFIRMED.\n\fDACHAUER V. NBTY, INC. 13\n\n APPENDIX\n\f14 DACHAUER V. NBTY, INC.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357828/", "author_raw": "GRABER, Circuit Judge:"}]}	SIDNEY R THOMAS	SUSAN P GRABER	LESLIE E KOBAYASHI	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580575/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Paul Dachauer v. Nbty, Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n PAUL DACHAUER, On Behalf No. 17-16242\n of Himself and All Others\n Similarly Situated, D.C. No.\n Plaintiff-Appellant, 3:16-cv-00216-VC\n\n v.\n OPINION\n NBTY, INC., a Delaware\n corporation; NATURE’S\n BOUNTY, INC., a Delaware\n corporation,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Vince Chhabria, District Judge, Presiding\n\n Argued and Submitted November 13, 2018\n San Francisco, California\n\n Filed January 10, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, Susan P. Graber,\n Circuit Judge, and Leslie E. Kobayashi,* District Judge.\n\n Opinion by Judge Graber\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge for\nthe District of Hawaii, sitting by designation.\n\f2 DACHAUER V. NBTY, INC.\n\n SUMMARY\n\n\n California Law / Federal Preemption\n\n The panel affirmed the district court’s summary judgment\nin favor of makers of vitamin E supplements in a\nplaintiff/consumer’s action alleging that the labels on the\nsupplements violated California laws against false\nadvertising.\n\n For dietary supplements, the Federal Food, Drug, and\nCosmetic Act (“FDCA”) distinguishes between “disease\nclaims” and “structure/function claims” that manufacturers\nmake about their products. A structure/function claim\ndescribes the role of a dietary ingredient, but may not claim\nto mitigate a specific disease. 21 U.S.C. § 343(r)(6).\nAlthough the FDCA requires manufacturers to have\nsubstantiation for their structure/function claims, California\nlaw does not allow private plaintiffs to demand substantiation\nfor advertising claims.\n\n The panel held that § 343-1(a)(5) of the FDCA expressly\npreempts state-law requirements for claims about dietary\nsupplements that differ from the FDCA’s requirements. The\npanel further held that, as applied here, § 343-1(a)(5)\npreempted most of plaintiff’s claims. Specifically, the panel\nheld that § 343-1(a)(5) preempted plaintiff’s claims to the\nextent that he argued that defendants’ structure/function\nclaims were false or misleading because their supplements\ndid not prevent cardiovascular disease. The panel also held\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f DACHAUER V. NBTY, INC. 3\n\nthat because the FDCA and California law have the same\nlabeling requirement with respect to failing to disclose an\nincreased risk of death, § 343-1(a)(5) did not preempt this\nparticular aspect of plaintiff’s case.\n\n The panel held that the record lacked evidence that\nvitamin E supplements are actually harmful, as opposed to\nsimply useless at reducing all-cause mortality (which they do\nnot claim to reduce). The panel concluded that, on this\nrecord, plaintiff failed to meet his burden to create a genuine\nissue of material fact as to whether defendants’ immune-\nhealth structure/function claim was misleading.\n\n\n COUNSEL\n\nStewart Weltman (argued), SIPRUT PC, Chicago, Illinois;\nMax A. Stein and Nada Djordjevic, Boodell & Domanskis,\nLLC, Chicago, Illinois; Patricia N. Syverson and Manfred\nMuecke, Bonnett, Fairbourn, Friedman & Balint, P.C., San\nDiego, California; Elaine Ryan, Bonnett, Fairbourn, Friedman\n& Balint, P.C., Phoenix, Arizona; for Plaintiff-Appellant.\n\nRobert Andalman (argued) and Rachael Blackburn, A&G\nLaw, LLC, Chicago, Illinois; William A. Delgado, Willenken\nWilson Loh & Delgado LLP, Los Angeles, California; for\nDefendants-Appellees.\n\f4 DACHAUER V. NBTY, INC.\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Defendants NBTY, Inc., and Nature’s Bounty, Inc., make\nvitamin E supplements that claim, on their labels, to “support\ncardiovascular health” and to “promote[] immune function,”\n“immune health,” “heart health,” and “circulatory health.”1\nPlaintiff Paul Dachauer purchased one bottle of the\nsupplements for health reasons. He claims that the labels’\nstatements violate two California laws against false\nadvertising, because the supplements do not prevent\ncardiovascular disease and might increase the risk of all-\ncause mortality. The district court disagreed and granted\nDefendants’ motion for summary judgment. Reviewing de\nnovo, and viewing the evidence in the light most favorable to\nPlaintiff, Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)\n(en banc), we affirm.\n\n A. Relevant Statutes and Regulations\n\n Plaintiff sued under California’s Unfair Competition Law,\nCal. Bus. & Prof. Code § 17200, and Consumers Legal\nRemedies Act, Cal. Civ. Code § 1770. Both statutes prohibit:\n(1) false advertising; and (2) advertising that is literally true,\nbut which is “actually misleading or which has a capacity,\nlikelihood or tendency to deceive or confuse the public.”\nWilliams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.\n2008) (quoting Kasky v. Nike, Inc., 45 P.3d 243, 250 (Cal.\n2002)). Our analysis, however, centers on the Federal Food,\nDrug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301–399i,\nand its implementing regulations.\n\n 1\n The Appendix includes two examples of the labels.\n\f DACHAUER V. NBTY, INC. 5\n\n For dietary supplements, the FDCA distinguishes between\n“disease claims” and “structure/function claims” that\nmanufacturers make about their products. A\nstructure/function claim “describes the role of a nutrient or\ndietary ingredient intended to affect the structure or function\nin humans” or “characterizes the documented mechanism by\nwhich a nutrient or dietary ingredient acts to maintain such\nstructure or function,” but “may not claim to diagnose,\nmitigate, treat, cure, or prevent a specific disease or class of\ndiseases.” 21 U.S.C. § 343(r)(6) (emphasis added). A\ndisease claim, conversely, “claims to diagnose, mitigate,\ntreat, cure, or prevent disease,” either explicitly or implicitly\n(such as by claiming that a product treats a disease’s\n“characteristic signs or symptoms”). 21 C.F.R.\n§ 101.93(g)(2)(ii). Structure/function claims must meet three\nrequirements: (1) the manufacturer has substantiation that the\nstatement is truthful and not misleading; (2) the statement\ncontains a prominent disclaimer that the Food and Drug\nAdministration (“FDA”) has not evaluated the statement and\nthat the product “is not intended to diagnose, treat, cure, or\nprevent any disease”; and (3) the statement itself does not\n“claim to diagnose, mitigate, treat, cure, or prevent” disease.\n21 U.S.C. § 343(r)(6).\n\n The FDA has published guidance in the Federal Register\ndiscussing, among other things, acceptable structure/function\nclaims. Regulations on Statements Made for Dietary\nSupplements Concerning the Effect of the Product on the\nStructure or Function of the Body, 65 Fed. Reg. 1000-01 (Jan.\n6, 2000). The guidance recognizes that structure/function\nclaims may use general terms such as “strengthen,”\n“improve,” and “protect,” as long as the claims “do not\nsuggest disease prevention or treatment.” Id. at 1028. For\nexample, the guidance identifies the phrase “helps maintain\n\f6 DACHAUER V. NBTY, INC.\n\ncardiovascular function and a healthy circulatory system” as\na permissible structure/function claim. Id. at 1012; see also\nid. at 1029 (The “FDA does not agree that . . . ‘supports the\nimmune system’” implies disease prevention.). The guidance\nfurther explains that manufacturers of supplements can\nsubstantiate structure/function claims with evidence of an\neffect on a small aspect of the related structure/function,\nrather than with evidence of an effect on the main disease that\nconsumers might associate with a given bodily structure or\nfunction. See id. at 1012 (“For example, to substantiate the\nclaim ‘supports mood,’ it is not necessary to study the effects\nof a substance on clinical depression. Instead, it is quite\npossible to assess the effects of a substance on mood changes\nthat do not constitute clinical depression.”).\n\n Although the FDCA requires manufacturers to have\nsubstantiation for their structure/function claims, California\nlaw does not allow private plaintiffs to demand substantiation\nfor advertising claims. Nat’l Council Against Health Fraud,\nInc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 213–14\n(Ct. App. 2003). Instead, a private plaintiff bears the burden\nof producing evidence to prove that the challenged statement\nis false or misleading. Id.\n\n B. Preemption\n\n The FDCA expressly preempts any state law that\nestablishes “any requirement respecting any claim of the type\ndescribed in section 343(r)(1) of this title made in the label or\nlabeling of food that is not identical to the requirement of\nsection 343(r) of this title.” 21 U.S.C. § 343-1(a)(5).\nDefendants argue that § 343-1(a)(5) preempts Plaintiff’s\nclaims because he seeks to impose labeling requirements\nunder California law that differ from the FDCA’s\n\f DACHAUER V. NBTY, INC. 7\n\nrequirements. Although the district court did not reach the\nissue of preemption, we may affirm on that ground because\nDefendants raised the issue below, and it is a threshold legal\nissue. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 757\n(9th Cir. 2015).\n\n The preemption provision governs claims “of the type\ndescribed in section 343(r)(1).” 21 U.S.C. § 343-1(a)(5).\nSection 343(r)(6), which establishes the requirements for\nstructure/function claims, falls under subsection (r)(1)’s\numbrella. See id. § 343(r)(6) (“For purposes of paragraph\n(r)(1)(B), a statement for a dietary supplement may be made\nif . . . .” (emphasis added)). So, a structure/function claim\nmade under § 343(r)(6) is a “claim of the type described in\nsection 343(r)(1).” Also, the FDCA classifies dietary\nsupplements as food; indeed, § 343-1 (“National uniform\nnutrition labeling”) and § 343 (“Misbranded food”) fall under\nthe FDCA’s “Food” subchapter. Thus, a structure/function\nclaim also constitutes a claim “made in the label or labeling\nof food.” Id. § 343-1(a)(5). Accordingly, we hold that § 343-\n1(a)(5) preempts state-law requirements for claims about\ndietary supplements that differ from the FDCA’s\nrequirements.\n\n As applied here, § 343-1(a)(5) preempts most of\nPlaintiff’s claims. We first address Defendants’\nstructure/function claims that their supplements promote and\nsupport cardiovascular, circulatory, and heart health. Plaintiff\nargues that those claims are false because the supplements do\nnot prevent cardiovascular disease.\n\n Plaintiff’s expert witness, Edgar Miller, Ph.D., M.D.,\noffered ample evidence that vitamin E supplements, taken in\nthe doses that Defendants sell, fail to prevent cardiovascular\n\f8 DACHAUER V. NBTY, INC.\n\ndisease. In Dr. Miller’s view, no metric except the absence or\npresence of cardiovascular disease can measure heart health\n(and, accordingly, no other metric can demonstrate whether\na supplement promotes or supports heart health). In essence,\nDr. Miller rejects the discrete categories of claims that the\nFDCA establishes; by definition, structure/function claims do\nnot and may not claim to treat or prevent disease. Id.\n§ 343(r)(6); 21 C.F.R. § 101.93(g)(2). And Defendants’\nlabels do not claim that their vitamin E supplements treat or\nprevent cardiovascular disease. Yet Plaintiff seeks to impose\na requirement under California law that structure/function\nclaims—at least those related to cardiovascular, circulatory,\nand heart health—made on a supplement’s label require proof\nthat the supplement treats or prevents cardiovascular disease.2\nThat requirement “is not identical to the requirement of\nsection 343(r).” 21 U.S.C.§ 343-1(a)(5).\n\n On appeal, Plaintiff argues that it does not matter whether\nhe categorizes Defendants’ claims as structure/function\nclaims or as disease claims, because he addressed the falsity\nof the labels’ text. To the contrary, it matters very much.\nPlaintiff’s argument would vitiate the FDCA’s distinction\nbetween disease claims and structure/function claims. The\nFDA allows manufacturers of supplements to make general\nclaims—such as “promotes heart health”—and to substantiate\n\n\n 2\n Plaintiff suggests that we should grant him leave to amend his\ncomplaint to allege that Defendants make false implied-disease claims\ninstead of structure/function claims. But Plaintiff had a chance to raise\nimplied-disease claims, and he expressly told the district court that he had\nno such claims. Moreover, Plaintiff never requested leave from the\ndistrict court to amend his complaint, so his request on appeal comes too\nlate. See Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913,\n917 n.1 (9th Cir. 2002) (declining the plaintiff’s request, made for the first\ntime on appeal, for leave to amend its complaint).\n\f DACHAUER V. NBTY, INC. 9\n\nthem with evidence that a supplement has some structural or\nfunctional effect on a given part of the human body. 65 Fed.\nReg. at 1012. Manufacturers need not also have evidence that\nthose structural or functional effects reduce the risk of\ndeveloping a certain disease. See Kaufman v. CVS Caremark\nCorp., 836 F.3d 88, 95 (1st Cir. 2016) (rejecting the\nplaintiff’s argument that “evidence showing a supplement\ndoes not reduce heart disease necessarily implies that the\nnutrient itself has no function in maintaining heart health”).\nPlaintiff disagrees with the federal statutory scheme for\ndietary supplements, but we cannot accept his invitation to\nupend it. We hold that § 343-1(a)(5) preempts Plaintiff’s\nclaims to the extent that he argues that Defendants’\nstructure/function claims are false or misleading because their\nsupplements do not prevent cardiovascular disease.\n\n As for Defendants’ structure/function claim that their\nsupplements promote immune health, Plaintiff argues that the\nclaim is false and misleading, either because the supplements\nfail to reduce all-cause mortality or because the supplements\nincrease the risk of all-cause mortality. The FDCA does not\nrequire that manufacturers substantiate structure/function\nclaims about immune health with proof that their supplements\nreduce the risk of all-cause mortality. 21 U.S.C. § 343(r)(6).\n(Nor do Defendants claim that their supplements reduce that\nrisk.) Because any such requirement under California law\nwould differ from the FDCA’s labeling requirements, the\nFDCA preempts Plaintiff’s claim to the extent that he argues\nthat Defendants make a false structure/function claim because\ntheir supplements fail to reduce the risk of all-cause\nmortality.\n\n But the FDCA does not preempt Plaintiff’s claim that\nDefendants’ structure/function claim about immune health is\n\f10 DACHAUER V. NBTY, INC.\n\nmisleading because their supplements increase the risk of all-\ncause mortality. FDCA regulations state that a food label\n“shall be deemed to be misleading if it fails to reveal facts”\nthat are “[m]aterial with respect to consequences which may\nresult from use of the article” under normal conditions of use\nor the conditions of use that the label prescribes. 21 C.F.R.\n§ 1.21(a)(2). In other words, if a supplement’s label\nrecommends taking one capsule per day, and that dose\nactually causes an increased risk of death—a material fact\n“with respect to consequences which may result from use of\nthe article”—the FDCA would deem it misleading not to\nreveal that fact on the label. Id.; see also Kaufman, 836 F.3d\nat 96 (noting that a structure/function claim would be\nmisleading if it “fail[ed] to disclose the harmful aspects of the\nnutrient’s structure/function”).\n\n Likewise, a label that omitted that fact would be\nmisleading under California law. The associated\nstructure/function claim would have “a capacity, likelihood\nor tendency to deceive or confuse the public,” because a\nreasonable consumer would not expect to suffer an increased\nrisk of death from taking the product. Williams, 552 F.3d at\n938 (quoting Kasky, 45 P.3d at 250). Because the FDCA and\nCalifornia law have the same labeling requirement with\nrespect to failing to disclose an increased risk of death, § 343-\n1(a)(5) does not preempt this particular aspect of Plaintiff’s\ncase. Thus, we address whether Plaintiff created a genuine\nissue of material fact as to whether the immune-health claim\nis misleading.\n\f DACHAUER V. NBTY, INC. 11\n\n C. Defendants’ Immune-Health Claim\n\n Conceivably, evidence that a supplement endangered\nusers by increasing their risk of death could prove that a\nstructure/function claim that omitted the risk was misleading.\nBut the record lacks evidence that vitamin E supplements are\nactually harmful, as opposed to simply useless at reducing\nall-cause mortality (which they do not claim to reduce).\n\n At best, the record reveals, in Dr. Miller’s words, a\n“small” correlation between high-dose vitamin E\nsupplements (which Defendants sell) and an increased risk of\nall-cause mortality. Miller cited four meta-analyses3 for this\npoint, but none of them concluded that vitamin E supplements\ncaused an increased risk of all-cause mortality. See, e.g.,\nGoran Bjelakovic et al., Mortality in Randomized Trials of\nAntioxidant Supplements for Primary and Secondary\nPrevention, 297 J. Am. Med. Ass’n 842, 842, 854 (2007)4\n(concluding that “vitamin E may increase mortality,” but also\nstating that “[w]e are not able to determine the cause of the\nincreased mortality” (emphasis added)). And, as the term\n“all-cause mortality” suggests, the record contains no\nevidence about the actual cause of death for any of those\nincluded in the studies. Those causes could include many\nthings unrelated to vitamin E supplements or immune\nfunction, such as suicide or a car accident. Without more, no\nreasonable jury could conclude that Defendants misleadingly\n“fail[ed] to disclose the harmful aspects of the nutrient’s\nstructure/function.” Kaufman, 836 F.3d at 96. In summary,\n\n\n 3\n A meta-analysis combines results from multiple clinical trials to\ndraw broader conclusions about the subject under study.\n 4\n Available at: http://dcscience.net/bjelakovic-supplements-07.pdf.\n\f12 DACHAUER V. NBTY, INC.\n\nwe hold that, on this record, Plaintiff failed to meet his\nburden to create a genuine issue of material fact as to whether\nDefendants’ immune-health structure/function claim is\nmisleading.\n\n AFFIRMED.\n\fDACHAUER V. NBTY, INC. 13\n\n APPENDIX\n\f14 DACHAUER V. NBTY, INC.\n[END_CASE]", "role": "user" } ]
4,580,576		Judith Cox v. Wa Dept. Social & Health Svcs.	2019-01-10	15-35964	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Michael Daly Hawkins and Morgan Christen, Circuit Judges, and Leslie E. Kobayashi,* District Judge.", "parties": "", "opinions": [{"author": "KOBAYASHI, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nJUDITH COX, individually and as Nos.15-35964\nPersonal Representative of the estate 15-35980\nof C. J. P., and estate of B. T. P. and\nCHARLES COX, individually and as D.C. No.\nPersonal Representatives of the 3:14-cv-05923-\nestate of C. J. P. and estate of RBL\nB. T. P.,\n Plaintiffs-Appellants/\n Cross-Appellees, OPINION\n\n v.\n\nSTATE OF WASHINGTON,\nDEPARTMENT OF SOCIAL AND\nHEALTH SERVICES; FOREST\nJACOBSON; RANDY STEPHENSON;\nJANE WILSON; BILLIE REED-LYYSKI,\n Defendants-Appellees/\n Cross-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Ronald B. Leighton, District Judge, Presiding\n\n Argued and Submitted December 4, 2017\n Seattle, Washington\n\n Filed January 10, 2019\n\f2 COX V. STATE OF WASHINGTON DSHS\n\n Before: Michael Daly Hawkins and Morgan Christen,\n Circuit Judges, and Leslie E. Kobayashi,* District Judge.\n\n Opinion by Judge Kobayashi\n\n\n SUMMARY*\n\n\n Civil Rights\n\n The panel affirmed a grant of summary judgment in favor\nof social workers and reversed the dismissal of negligence\nclaims against Washington’s Department of Social and\nHealth Services, and remanded, in an action arising from the\nmurder of two young boys by their father during a social-\nworker-supervised visit.\n\n The amended complaint alleged a 42 U.S.C. § 1983 claim\nagainst the social workers for disregarding facts showing that\nthe father presented a serious risk of harm to the boys, as well\nas negligence claims against the Department for its failure to\ninvestigate and monitor the father prior to and during the\nvisits, and failure to train.\n\n The panel held that viewing the record in the light most\nfavorable to the plaintiffs, there was insufficient evidence to\nshow that the social workers recognized, or should have\n\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge for\nthe District of Hawai`i, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f COX V. STATE OF WASHINGTON DSHS 3\n\nrecognized, an objectively substantial risk that the father\nwould physically harm his sons. As the social workers did\nnot act with deliberate indifference to the boys’ liberty\ninterest, the district court did not err in concluding that the\nsocial workers were entitled to qualified immunity.\n\n Addressing the negligence claims, the panel held that the\nDepartment of Social and Health Services had a duty to\ninvestigate in order to reasonably ensure that a child is not\nplaced in an abusive situation. The panel held that material\nissues of fact existed regarding whether the Department used\nreasonable care to avoid placing the boys in harm’s way,\nincluding: (1) determining the visitation location; (2)\nfacilitating the February 5, 2012 visitation; and (3) training\nits social workers to conduct visitations. There also existed\nmaterial issues of fact as to whether the Service’s actions\nproximately caused the boys to be placed in harm’s way.\n\n\n COUNSEL\n\nTed Buck (argued), Evan Bariault, Anne M. Bremner, Frey\nBuck P.S., Seattle, Washington, for Plaintiffs-Appellants/\nCross-Appellees.\n\nPeter John Helmberger (argued), Assistant Attorney\nGeneral; Robert W. Ferguson, Attorney General; Office\nof the Attorney General, Tacoma, Washington; for\nDefendants-Appellees/Cross-Appellants.\n\f4 COX V. STATE OF WASHINGTON DSHS\n\n OPINION\n\nKOBAYASHI, District Judge:\n\n This appeal arises from the gruesome murder of two\nyoung boys by their father during a social-worker-supervised\nvisit during dependency proceedings brought by the State of\nWashington’s Department of Social and Health Services\n(“DSHS”). One set of grandparents, Judith Cox and Charles\nCox (“Coxes”), subsequently sued the social workers under\n42 U.S.C. § 1983, and DSHS for negligence. The Coxes\nappeal the adverse grant of summary judgment in favor of the\nsocial workers and DSHS. On cross-appeal, DSHS\nchallenges the conclusion that, in placement decisions,\nWashington state law imposes a duty to conduct investigation\nnecessary to avoid placing a child in an abusive or dangerous\nsituation. We have jurisdiction under 28 U.S.C. § 1291, and\nwe affirm the grant of summary judgment in favor of the\nsocial workers based on qualified immunity and the\nconclusion that, under Washington state law, those making\nplacement decisions have a duty to reasonably ensure a child\nis not placed in an abusive situation. We reverse as to the\nnegligence claims against DSHS, and remand for further\nproceedings.\n\nI. BACKGROUND\n\n The following facts are not in dispute. In December\n2009, Susan Powell disappeared from the Utah home she\nshared with her husband, Joshua Powell and their two boys.\nJoshua, the lead suspect in Susan’s disappearance,\nsubsequently moved with the two boys to his father Stephen\nPowell’s home in Washington. On August 25, 2011,\nWashington authorities—acting on information from Utah\n\f COX V. STATE OF WASHINGTON DSHS 5\n\nauthorities investigating Susan’s disappearance—conducted\na search of Stephen’s home. Washington authorities\nconfiscated fifteen computers that, when examined, were\nfound to contain child pornography and evidence of\nStephen’s obsession with Susan. Stephen was arrested, and\nthe two boys were removed from the home and placed under\nDSHS’s care.\n\n On September 28, 2011, the Superior Court of\nWashington, County of Pierce, Juvenile Court (“the\nDependency Court”) issued orders placing the two boys in the\ncustody of DSHS; authorizing placement with the Coxes;\nallowing Joshua weekly visits with the two boys under\nsupervision by a DSHS-approved provider; and prohibiting\nJoshua from either discussing pending litigation with the boys\nor making disparaging remarks about the Coxes. Pursuant to\nthese orders, one of the social workers submitted an initial\nvisiting plan to the Dependency Court that recommended the\nweekly supervised visits take place in DSHS’s Division of\nChild and Family Services (“DCFS”) offices or another\npreapproved DCFS location.\n\n Following an initial review, the Dependency Court found\nthe two boys were dependent and ordered the boys continue\nto be placed with the Coxes but maintained weekly visits with\ntheir father. The Dependency Court also ordered that\nvisitations could be expanded if the parties agreed and that\nJoshua undergo a psychological evaluation and parenting\nassessment. In November 2011, DSHS changed the location\nof the boys’ visits from a DCFS facility to a residence Joshua\nhad established separate and apart from his father. The\nchange was noted in the guardian ad litem’s report, filed with\nthe Dependency Court on January 6, 2012.\n\f6 COX V. STATE OF WASHINGTON DSHS\n\n Psychologist James Manley, Ph.D., evaluated Joshua\nbetween October 2011 and January 2012. As part of his\nevaluation, Dr. Manley assessed Joshua during visitations\noccurring both at a DCFS location and Joshua’s newly-\nestablished residence. Dr. Manley’s initial report registered\nconcerns about some of Joshua’s behaviors but concluded\nthat supervised visitations should continue. In January 2012,\nDr. Manley drafted an addendum to his report that included\na review of 400 pornographic images collected from\nStephen’s computer. Joshua’s potential connection to these\nimages led Dr. Manley to conclude “he may not presently be\na stable and appropriate resource for his children.” Dr.\nManley referred Joshua to a psychosexual evaluation and\nrecommended no “additional or change of visit structure.”\n\n The Dependency Court held its second review shortly\nthereafter. At this hearing, the Dependency Court denied\nJoshua’s motion to have the boys returned to him or placed\nwith his pastor. After reviewing reports from Dr. Manley, the\nguardian ad litem, and social workers, the Dependency Court\nordered visitation to continue twice a week for three hours.\nThe boys continued to live with the Coxes.\n\n On February 5, 2012, the visitation supervisor—a social\nworker who is not a defendant in this case—brought the boys\nto Joshua’s newly-established residence for a scheduled visit.\nAs they had done on prior visits, the boys, anxious to see their\nfather, ran into Joshua’s house ahead of the visitation\nsupervisor. Joshua locked the door to prevent the visitation\nsupervisor from entering the home, and proceeded to\nbludgeon both boys to death, set the house on fire, and kill\nhimself.\n\f COX V. STATE OF WASHINGTON DSHS 7\n\n The Coxes’ lawsuit seeks damages from the social\nworkers, Forest Jacobson, Randy Stephenson, Jane Wilson,\nand Billie Reed-Lyyski, as well as DSHS. The Coxes’\noriginal complaint was filed solely against DSHS, and was\nsuperseded by their amended complaint, which added the\nsocial workers as defendants. The amended complaint\nalleges a 42 U.S.C. § 1983 claim against the social workers\nfor disregarding facts showing that Joshua presented a serious\nrisk of harm to the boys, as well as negligence claims against\nDSHS for its failure to investigate and monitor Joshua prior\nto and during the visits, and failure to train.\n\n The district court granted the defendants’ motion for\nsummary judgment and concluded that the social workers\nhad absolute immunity or, alternatively, qualified immunity\nfrom the Coxes’ § 1983 claims. As to DSHS, the district\ncourt found that DSHS did not fail to provide material\ninformation about Joshua to the Dependency Court, that the\nDependency Court’s February 1, 2012 order was a\nsuperseding, intervening cause that precluded liability for the\ndeaths, and that DSHS did not negligently facilitate the fatal\nvisit. The district court also found that, under state law and\nin placement decisions, DSHS has a duty to investigate in\norder to reasonably ensure that a child is not placed in an\nabusive situation. This appeal and cross-appeal followed.\n\nII. STANDARD OF REVIEW\n\n We review de novo an order granting summary judgment,\napplying the same standard as the district court. Howard v.\nCity of Coos Bay, 871 F.3d 1032, 1038 n.1 (9th Cir. 2017).\nWhether a public official is entitled to immunity and the type\nof that immunity are questions of law also reviewed de novo.\nMabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237\n\f8 COX V. STATE OF WASHINGTON DSHS\n\nF.3d 1101, 1106 (9th Cir. 2001) (citing Greater L.A. Council\non Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987)).\n\nIII. DISCUSSION\n\n A. Liability of the Individual Social Workers under\n § 1983\n\n 1. Absolute Immunity\n\n We turn first to whether the district court properly\nconcluded that the social workers were entitled to absolute\nimmunity with regard to their reports to the Dependency\nCourt and supervision of Joshua’s visits with the two boys.\n“Absolute immunity from private lawsuits covers the official\nactivities of social workers only when they perform quasi-\nprosecutorial or quasi-judicial functions in juvenile\ndependency court.” Hardwick v. Cty. of Orange, 844 F.3d\n1112, 1115 (9th Cir. 2017) (citing Miller v. Gammie, 335\nF.3d 889, 898 (9th Cir. 2003) (en banc)). Absolute immunity\nis available only if the social worker’s “activity or ‘function’\n. . . was . . . part and parcel of presenting the state’s case as a\ngeneric advocate.” Id. “[S]ocial workers are not afforded\nabsolute immunity for their investigatory conduct,\ndiscretionary decisions or recommendations.” Tamas v.\nDep’t of Soc. & Health Servs., State of Wash., 630 F.3d 833,\n842 (9th Cir. 2010) (citing Beltran v. Santa Clara Cty., 514\nF.3d 906, 908–09 (9th Cir. 2008); Miller, 355 F.3d at 898).\n\n Viewing the record in the light most favorable to the\nCoxes, the visitation location was within the social workers’\ndiscretion. There is insufficient evidence that the\nDependency Court required the boys’ visits to take place in\nJoshua’s home. None of the Dependency Court’s rulings,\n\f COX V. STATE OF WASHINGTON DSHS 9\n\noral and written, dictated the visitation location. Thus, the\ndistrict court erred in concluding that the social workers were\nentitled to absolute immunity.\n\n 2. Qualified Immunity\n\n Whether qualified immunity shields the social workers\nfrom liability is a closer question. We must examine “(1)\nwhether the facts, taken in the light most favorable to the\nparty asserting the injury, show that the [social workers’]\nconduct violated a constitutional right and (2) if so, whether\nthe right was clearly established, such that a reasonable\nofficial would understand that his conduct violated that\nright.” Id. (citing Conn v. City of Reno, 572 F.3d 1047, 1061\n(9th Cir. 2009)). Because we conclude that the social\nworkers’ conduct did not violate a constitutional right, we\nneed not consider the second prong.\n\n Where children are in state custody, the Fourteenth\nAmendment’s substantive due process clause protects their\nliberty interest “in social worker supervision and protection\nfrom harm inflicted by [a third party].” Id. (citing Carlo v.\nCity of Chino, 105 F.3d 493, 501 (9th Cir. 1997); Campbell\nv. Burt, 141 F.3d 927, 931 n.2 (9th Cir. 1998)).\n\n “To violate due process, state officials must act with such\ndeliberate indifference to the liberty interest that their actions\n‘shock the conscience.’ Conduct that ‘shocks the conscience’\nis deliberate indifference to a known or so obvious as to\nimply knowledge of, danger.” Tamas, 630 F.3d at 844\n(footnote, citations, and some internal quotation marks\nomitted). As applied to children in state custody, deliberate\nindifference “requires a showing of an objectively substantial\nrisk of harm and a showing that the officials were\n\f10 COX V. STATE OF WASHINGTON DSHS\n\nsubjectively aware of facts from which an inference could be\ndrawn” that such a risk existed and that “either the official\nactually drew that inference or that a reasonable official\nwould have been compelled to draw that inference.” Id. at\n845.\n\n The Coxes argue that the social workers disregarded facts\nthat would compel an inference that there existed an\nobjectively substantial risk that Joshua would physically harm\nhis two sons. Specifically, the Coxes rely on several\nsources—Joshua’s sister, Jennifer Graves, law enforcement\nofficials, and the Coxes—who told the social workers about\ntheir specific concerns that Joshua would physically harm the\nboys. The district court discounted such evidence as mere\nhunches, gut feelings, and speculations that were not\nsupported by “superior knowledge” about what Joshua might\ndo.\n\n While we disagree with the district court’s\ncharacterization of the evidence, we recognize how difficult\nit is for social workers to sift through safety fears and\nconcerns, and to make reasoned and expeditious judgments\nabout the risk of harm. In hindsight, family members’\nconcerns about Joshua physically harming the two boys were\nheartbreakingly prescient. But entitlement to qualified\nimmunity turns on whether the facts known at the time\nreasonably revealed this terrible risk. Regrettably, the facts\ndid not. The initial visiting plan identified a potential safety\nissue related to the risk that Joshua might flee with the two\nboys, but not that he might cause them serious physical harm.\nNext, the reports by the Coxes, Joshua’s sister and law\nenforcement expressed only generalized (albeit strongly\nvoiced) fears about Joshua harming his sons. Further, the\nguardian ad litem reported that Joshua had a strong bond with\n\f COX V. STATE OF WASHINGTON DSHS 11\n\nthe two boys and that the visits were going well. Lastly,\nwhile the two boys ran into their father’s house ahead of the\nvisitation supervisor on at least nine occasions prior to the\nfinal, fatal visit, the children’s actions reasonably could be\ninterpreted as indications that they were not afraid of and\nwere excited to see their father, as opposed to indications of\na risk of physical harm. Viewing the record in the light most\nfavorable to the Coxes, there is insufficient evidence to show\nthat the social workers recognized, or should have\nrecognized, an objectively substantial risk that Joshua would\nphysically harm his sons. As the social workers did not act\nwith deliberate indifference to the boys’ liberty interest, the\ndistrict court did not err in concluding that the social workers\nwere entitled to qualified immunity.\n\n B. Negligence Claims\n\n As with a child placed in a foster or prospective adoptive\nhome, DSHS is the “custodian and caretaker” of a dependent\nchild who has been removed from his biological parent’s\ncustody and subject to court-ordered supervised visitations\nwith the biological parent. The Coxes presented multiple\ntheories of negligence against DSHS that can be aggregated\ninto two different groups. The first group involves actions\noccurring before the issuance of the Dependency Court’s\nFebruary 1 order, and includes claims that DSHS failed to use\nreasonable care while: (1) investigating and collecting\ninformation about Joshua’s potential for abusive behavior;1\n\n\n 1\n We emphasize that the Coxes did not plead a “negligent\ninvestigation” claim. Under Washington law, there is no “general tort\nclaim for negligent investigation[,] [and a] negligent investigation cause\nof action against DSHS is a narrow exception that is based on, and limited\nto,” the scope of Wash. Rev. Code § 26.44.050. M.W. v. Dep’t of Soc. &\n\f12 COX V. STATE OF WASHINGTON DSHS\n\nand (2) determining Joshua’s visitation duration and location.\nThe second group involves actions occurring after or\nunrelated to the issuance of the Dependency Court’s February\n1 order, and includes claims that DSHS failed to use\nreasonable care while: (1) facilitating the February 5, 2012\nvisitation; and (2) training its social workers to conduct\nvisitations.\n\n Under Washington law, a negligence action requires proof\nof four elements: existence of a duty; breach of the duty; a\nresulting injury; and proximate causation between the breach\nand the resulting injury. Michaels v. CH2M Hill, Inc., 257\nP.3d 532, 542 (Wash. 2011).\n\n\n\nHealth Servs., 70 P.3d 954, 960 (Wash. 2003) (en banc). Section\n26.44.050 states, in pertinent part:\n\n Except as provided in [Wash. Rev. Code]\n 26.44.030(11), upon the receipt of a report concerning\n the possible occurrence of abuse or neglect, the law\n enforcement agency or the department [of social and\n health services] must investigate and provide the\n protective services section with a report in accordance\n with chapter 74.13 [Wash. Rev. Code], and where\n necessary to refer such report to the court.\n\nWash. Rev. Code § 26.44.050. Thus, “a claim for negligent investigation\nagainst DSHS is available only to children, parents, and guardians of\nchildren who are harmed because DSHS has[, in response to report of\npossible abuse or neglect,] gathered incomplete or biased information that\nresults in a harmful placement decision.” M.W., 70 P.3d at 960. The\nCoxes do not allege a negligent investigation claim pursuant to\n§ 26.44.050; they merely rely on DSHS’s failure to use reasonable care in\nits investigation of this case as one of the ways in which DSHS breached\nthe duty of care it owed the boys because of its special relationship with\nthe boys. See infra.\n\f COX V. STATE OF WASHINGTON DSHS 13\n\n 1. Duty of Care Owed to the Boys\n\n On cross-appeal, DSHS contends that the district court\nerred in concluding that, under Washington law, DSHS owed\nthe boys a duty of care to reasonably ensure it did not place\nthe boys in a dangerous or abusive situation. It is wrong.\n\n The threshold determination in a negligence action is\nwhether a defendant owes a duty of care to the plaintiff. To\nbe actionable, the duty must be one owed to the injured\nplaintiff, and not one owed to the public in general. “While\nthere is generally no duty to prevent a third person from\nintentionally harming another, a duty arises when a special\nrelationship exists between the defendant and either the third\nparty or the foreseeable victim of the third party’s conduct.”\nH.B.H. v. State, 429 P.3d 484, 492 (Wash. 2018)\n(“H.B.H. II”) (citations and internal quotation marks omitted).\nA duty to prevent intentional harm by a third party arises\nwhere the defendant has either: (1) a special relationship with\nthe third party, such that the defendant has a duty to control\nthe third party’s conduct; or (2) a special relationship with the\nvictim, such that the defendant has a duty to protect the\nvictim. Id. (citations omitted). The second type of special\nrelationship, which the Supreme Court of Washington has\ndescribed as an “entrustment for the protection of a\nvulnerable victim,” id. at 494 (citation omitted), is relevant to\nthe Coxes’ claims against DSHS.\n\n In H.B.H. II, the Supreme Court of Washington held that\na special relationship exists between DSHS and the dependent\nchildren it places in foster homes. Id. at 496. The children in\nthat case sued the State of Washington, claiming “its\nnegligence in failing to investigate or take other protective\n\f14 COX V. STATE OF WASHINGTON DSHS\n\naction . . . allowed the[ir] [foster parents] to abuse them.” Id.\nat 488. The Supreme Court of Washington held:\n\n The State, through DSHS, stands in a\n special relationship with foster children.\n While DSHS contracts with foster parents and\n others to provide day-to-day care for\n dependent children, the State alone is\n custodian and caretaker of foster children.\n Consistent with our precedent, we hold that\n the special relationship between DSHS and\n foster children gives rise to a protective duty\n under Restatement § 315(b). . . .\n\nId. at 499 (citation and internal quotation marks omitted).\nThis duty to protect includes the duty to exercise reasonable\ncare in conducting the investigations underlying DSHS’s\ndecisions regarding the foster children, and a breach of that\nduty is actionable even where a § 26.44.050 claim is not\navailable. See id. at 496.\n\n Although H.B.H. II and the decision that it\naffirmed—H.B.H. v. State, 387 P.3d 1093 (Wash. Ct. App.\n2017) (“H.B.H. I”)—were decided after the district court’s\ndecision in this case, the holdings in H.B.H. I and H.B.H. II\nare not novel. See H.B.H. II, 429 P.3d at 496 (noting that\nM.W., 70 P.3d 954, “confirms, rather than rejects, common\nlaw claims [against DSHS] based on a special relationship”).\nH.B.H. I also recognized the State’s special relationship with\nfoster children, and a subsequent court of appeals decision\nrecognized that the court of appeals’ decision in “H.B.H. [I]\nis consistent with . . . earlier cases . . . finding a duty of\nprotection arising from a special relationship under\nRestatement (Second) of Torts § 315(b).” C.L. v. Dep’t of\n\f COX V. STATE OF WASHINGTON DSHS 15\n\nSoc. & Health Servs., 402 P.3d 346, 350 (Wash. Ct. App.\n2017). Indeed, as early as 1991, the Supreme Court of\nWashington implicitly recognized a duty of protection in\nallowing foster children to pursue negligence claims against\nthe State and its caseworkers related to the children’s\nplacement in foster homes. Babcock v. State, 809 P.2d 143\n(Wash. 1991).\n\n Although H.B.H., C.L., and Babcock involved placement\nof dependent children in foster or adoptive homes and\nsubsequent harm inflicted upon the children as a result of that\nplacement, the relationship here is identical. As with a child\nplaced in a foster or prospective adoptive home, DSHS is the\n“custodian and caretaker” of a dependent child who has been\nremoved from his biological parent’s custody and subject to\ncourt-ordered supervised visitations with the biological\nparent. See H.B.H. II, 429 P.3d at 499. That child is “wholly\nexposed to the will of the [biological] parent” during a\nvisitation, unless DSHS reasonably investigates and\nsupervises the conditions of visitation. See H.B.H. I, 387\nP.3d at 1101. Thus, a special relationship and duty existed\nbetween DSHS and the boys.2\n\n While the district court’s conclusion was made without\nthe benefit of the Washington Supreme Court’s holding in\nH.B.H. II, there is sufficient basis to affirm its conclusion that\nDSHS had a duty to investigate in order to reasonably ensure\nthat a child is not placed in an abusive situation. Because\nDSHS owed a duty to protect the boys, we affirm the district\ncourt’s conclusion that it owed a duty to avoid placing them\n\n\n 2\n Because we hold that the second special relationship exception\napplies, we need not address whether another type of special relationship\nexception applies.\n\f16 COX V. STATE OF WASHINGTON DSHS\n\nin an abusive situation during their visitations with Joshua.\nSee S. Cal. Painters & Allied Trades, Dist. Council No. 36 v.\nRodin & Co., 558 F.3d 1028, 1034 n.5 (9th Cir. 2009)\n(recognizing we “may affirm on any ground supported by the\nrecord, even if it differs from the district court’s rationale”\n(citation omitted)). DSHS’s cross-appeal is denied.\n\n 2. Breach\n\n The district court held that, as a matter of law, DSHS did\nnot breach its duty of care owed to the boys in conducting the\ninvestigation necessary to provide all material information to\nthe Dependency Court,3 determining the duration and location\nof visitations, or facilitating the February 5, 2012 visitation.4\n\n What constitutes reasonable care and whether a defendant\nbreached its duty “are fact questions for the trier of fact.”\nHertog v. City of Seattle, 979 P.2d 400, 406 (Wash. 1999).\nWashington courts have declined to comprehensively define\nthe bounds of the duty DSHS owed to the boys. Indeed,\nH.B.H. I cautioned that “compliance with DSHS policies is\n[not] necessarily enough to ensure compliance with the duty\n\n\n\n 3\n Because the inquiry into whether DSHS breached its duty of care\nby failing to conduct the investigation necessary to inform the\nDependency Court of all material information is the same as the inquiry\ninto whether the Dependency Court’s February 1 order was a superseding\ncause, we address both inquiries in the proximate cause section.\n 4\n The district court did not specifically address the Coxes’ claim that\nDSHS negligently trained its social workers to conduct visitations.\nHowever, it appears the district court held the claim necessarily fails\nbecause it concluded that no social worker unreasonably facilitated a\nvisitation.\n\f COX V. STATE OF WASHINGTON DSHS 17\n\nto exercise ordinary care to protect foster children.” 387 P.3d\nat 1101 n.6.\n\n Here, as to the Coxes’ claim that DSHS unreasonably\nmoved the visitation location to Joshua’s residence, the Coxes\ncontend the decision took the boys from a secure government\nfacility to a location where Joshua—who was both the\nprimary suspect in the disappearance of his wife and\nsuspected to have been in the possession of child\npornography—had unfettered control. DSHS’s decision was\ninfluenced by discussions Joshua had with the boys about his\nnew residence—discussions that violated the Dependency\nCourt’s visitation order. DSHS’s decision was also made\nnotwithstanding Joshua’s repeated violations of the\nDependency Court’s visitation order and contrary to DSHS’s\nvisitation plans. Further, DSHS continued to allow visitations\ndespite Dr. Manley’s notation that “it is difficult to conclude\n[Joshua] could provide a stable, safe, and consistent nurturing\nenvironment for his sons.” Similarly, the Coxes claim DSHS\nrashly decided to increase the duration of the visitations prior\nto the completion of a psychological evaluation and when the\narrest of Joshua was “imminent.”\n\n Viewing the facts and reasonable inferences therefrom in\nthe light most favorable to the Coxes, there remains a genuine\nissue of material fact as to whether DSHS breached its duty\nof care owed to the boys in deciding to alter the location and\nduration of the visitations. The district court’s reliance on\nDSHS’s “continuing goal of reunification” and “relative\nsuccess of earlier family visits” to hold that DSHS’s decision\nwas reasonable as a matter of law ignores the extraordinary\nsafety concerns Joshua presented. Given the information\nDSHS possessed regarding Joshua, we cannot say that\nDSHS’s decision to move visitations to Joshua’s home and\n\f18 COX V. STATE OF WASHINGTON DSHS\n\nincrease duration of visitations was reasonable as a matter of\nlaw.\n\n The Coxes also argue that DSHS unreasonably facilitated\nthe February 5, 2012 visitation. They assert that DSHS\nshould have relocated the visitations before the February 5\nvisitation because Joshua was in an increasingly desperate\nposition following Dr. Manley’s concerns in his report\naddendum, the Dependency Court’s denial of Joshua’s\nmotion to remove children from the Coxes’ home, and the\nDependency Court’s order that Joshua undergo a\npsychosexual evaluation. As to the actual visitation, the\nCoxes argue it was unreasonable that DSHS had no\nemergency plan in place, as evidenced by the nearly 10\nminutes that elapsed before the visitation supervisor’s phone\ncall to 911. Similarly, the Coxes argue that DSHS did not use\nreasonable care in training its visitation supervisors, and that\nthe visitation supervisor in this case had never conducted a\nresidential supervised visitation before supervising the boys.\n\n Again, we cannot conclude as a matter of law that DSHS\nreasonably facilitated the February 5 visitation or reasonably\ntrained its visitation supervisors. DSHS reserves the right to\nchange aspects of visitations “based on increased or\ndecreased safety concerns, changes in permanency plans\nand/or the well-being of the child.” Reacting to new\ninformation and making appropriate changes falls within the\nspirit and duty DSHS owes to dependent children. However,\nno documented response was made or emergency plan\ncontemplated by DSHS despite revelations of increasingly\nconcerning information about Joshua, and DSHS’s utilization\nof a visitation supervisor who lacked firsthand experience\nwith the safety concerns of residential visitations. If such\n\f COX V. STATE OF WASHINGTON DSHS 19\n\nomissions were reasonable as a matter of law, they would\nrender hollow DSHS’s duty to dependent children.\n\n 3. Proximate Cause\n\n The district court also held that the Dependency Court’s\nFebruary 1 order, which concluded that visitation would\n“remain as it currently is,” was a superseding cause that\nsevered DSHS’s liability.\n\n To prevail on its negligence claims, the Coxes must prove\nDSHS’s incomplete investigation and failure to produce\nmaterial information to the Dependency Court was a\nproximate cause of the boys’ death. See Petcu v. State, 86\nP.3d 1234, 1244 (Wash. 2004). Proximate cause contains\ntwo elements: cause in fact and legal cause. “Cause in fact is\na jury question, established by showing that ‘but for’ the\ndefendant’s actions, the claimant would not have been\ninjured.” Id. at 1244. “Legal cause involves the\ndetermination, in view of ‘logic, common sense, justice,\npolicy, and precedent,’ of the extent to which a defendant\nshould remain legally responsible for the harmful\nconsequences of his acts” and is generally “a question for the\ncourt.” Id. at 1244–45 (quoting Minahan v. W. Wash. Fair\nAss’n, 73 P.3d 1019, 1023 (Wash. Ct. App. 2003)).\n\n Judicial action may sufficiently disrupt the causal\nconnection between a negligent act and subsequent harm to\nbecome a superseding, intervening cause. See Bishop v.\nMiche, 973 P.2d 465, 472 (Wash. 1999). A judicial order\nconstitutes a superseding, intervening cause “if all material\ninformation has been presented to the court and reasonable\nminds could not differ as to this question.” Tyner v. Dep’t of\nSoc. & Health Servs., 1 P.3d 1148, 1159 (Wash. 2000).\n\f20 COX V. STATE OF WASHINGTON DSHS\n\nOtherwise, materiality is “a question for the jury.” Id. at\n1158.\n\n Under this standard, the district court’s grant of summary\njudgment in favor of DSHS must be reversed. While the\ndistrict court recognized that the Dependency Court’s order\ndirected that visitations continue to occur, this directive did\nnot wholly “ratify” the manner in which DSHS conducted the\nboys’ visitations. If DSHS failed to supply “sufficient\nmaterial information” to the Dependency Court, then the\nDependency Court’s order did not break the causal chain.\nSee id. at 1159.\n\n Information withheld from the Dependency Court\nincluded opinions of Detectives Gary Sanders and Teresa\nBerg, investigators of the child pornography found in Steven\nPowell’s home. Detectives Sanders and Berg told DSHS that,\nbased on their personal interactions with the boys and Joshua,\nthey had concerns for the boys’ safety and believed Joshua\nposed a danger to the boys.5 DSHS also withheld the opinion\nof Joshua’s sister, Jennifer Graves, who stated Joshua was\n“unpredictable and volatile” and expressed concerns for the\nboys’ well-being while in Joshua’s care. Other information\nwithheld included concerned opinions from the boys’\ncounselor, and Joshua’s repeated violations of the\nDependency Court’s orders.\n\n\n\n 5\n DSHS argues that four social workers and attorney John Long\nsigned declarations denying that Detectives Sanders and Berg ever made\nthese statements. However, at this stage, we do not resolve issues of\nmaterial fact. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam)\n(“[C]ourts may not resolve genuine disputes of fact in favor of the party\nseeking summary judgment.” (citations omitted)).\n\f COX V. STATE OF WASHINGTON DSHS 21\n\n The district court held that the above-referenced\ninformation was immaterial as a matter of law. This is\nincorrect. The Supreme Court of Washington has recognized\nthat such information as opinions about an individual’s\ncapability to do harm to children from family members or\nthose with close familiarity with the individual may be\nmaterial. See Tyner, 1 P.3d at 1158. Here, it cannot be said\nthat the Dependency Court could have reached but one\nconclusion—to ratify visitations—had it been aware of the\nwithheld information. Thus, the district court erred in\nresolving as a matter of law the question of materiality as to\nsuch information.\n\nIV. CONCLUSION\n\n Material issues of fact exist regarding whether DSHS\nused reasonable care to avoid placing the boys in harm’s way,\nincluding: (1) determining Joshua’s visitation location; (2)\nfacilitating the February 5, 2012 visitation; and (3) training its\nsocial workers to conduct visitations. There also exists\nmaterial issues of fact as to whether DSHS’s actions\nproximately caused the boys to be placed in harm’s way. We\nreverse and remand these issues for trial.\n\n The dismissal of the negligence claims against\nDefendants State of Washington and Department of Social\nand Health Services is reversed and remanded because the\ndistrict court dismissed them without according justifiable\ninferences in favor of the non-moving party. We express no\nopinion as to the merits of those reinstated claims.\n\n We affirm the district court’s ruling that the social\nworkers, Defendants Forest Jacobson, Randy Stephenson,\nJane Wilson, and Billie Reed-Lyyski, were entitled to\n\f22 COX V. STATE OF WASHINGTON DSHS\n\nqualified immunity from Plaintiffs Judith Cox and Charles\nCox’s 42 U.S.C. § 1983 claims. The judgment in favor of\nJacobson, Stephenson, Wilson, and Reed-Lyyski is therefore\naffirmed.\n\n We affirm the district court’s conclusion that, under\nWashington state law, DSHS, in making placement decisions,\nhas a duty to reasonably ensure that it does not place a\ndependent child in an abusive situation.\n\n AFFIRMED in part, REVERSED in part, and\nREMANDED.\n\n Each party to bear its own costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357829/", "author_raw": "KOBAYASHI, District Judge:"}]}	MICHAEL DALY HAWKINS	MORGAN CHRISTEN	LESLIE E KOBAYASHI	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580576/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Judith Cox v. Wa Dept. Social & Health Svcs.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nJUDITH COX, individually and as Nos.15-35964\nPersonal Representative of the estate 15-35980\nof C. J. P., and estate of B. T. P. and\nCHARLES COX, individually and as D.C. No.\nPersonal Representatives of the 3:14-cv-05923-\nestate of C. J. P. and estate of RBL\nB. T. P.,\n Plaintiffs-Appellants/\n Cross-Appellees, OPINION\n\n v.\n\nSTATE OF WASHINGTON,\nDEPARTMENT OF SOCIAL AND\nHEALTH SERVICES; FOREST\nJACOBSON; RANDY STEPHENSON;\nJANE WILSON; BILLIE REED-LYYSKI,\n Defendants-Appellees/\n Cross-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Ronald B. Leighton, District Judge, Presiding\n\n Argued and Submitted December 4, 2017\n Seattle, Washington\n\n Filed January 10, 2019\n\f2 COX V. STATE OF WASHINGTON DSHS\n\n Before: Michael Daly Hawkins and Morgan Christen,\n Circuit Judges, and Leslie E. Kobayashi,* District Judge.\n\n Opinion by Judge Kobayashi\n\n\n SUMMARY*\n\n\n Civil Rights\n\n The panel affirmed a grant of summary judgment in favor\nof social workers and reversed the dismissal of negligence\nclaims against Washington’s Department of Social and\nHealth Services, and remanded, in an action arising from the\nmurder of two young boys by their father during a social-\nworker-supervised visit.\n\n The amended complaint alleged a 42 U.S.C. § 1983 claim\nagainst the social workers for disregarding facts showing that\nthe father presented a serious risk of harm to the boys, as well\nas negligence claims against the Department for its failure to\ninvestigate and monitor the father prior to and during the\nvisits, and failure to train.\n\n The panel held that viewing the record in the light most\nfavorable to the plaintiffs, there was insufficient evidence to\nshow that the social workers recognized, or should have\n\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge for\nthe District of Hawai`i, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f COX V. STATE OF WASHINGTON DSHS 3\n\nrecognized, an objectively substantial risk that the father\nwould physically harm his sons. As the social workers did\nnot act with deliberate indifference to the boys’ liberty\ninterest, the district court did not err in concluding that the\nsocial workers were entitled to qualified immunity.\n\n Addressing the negligence claims, the panel held that the\nDepartment of Social and Health Services had a duty to\ninvestigate in order to reasonably ensure that a child is not\nplaced in an abusive situation. The panel held that material\nissues of fact existed regarding whether the Department used\nreasonable care to avoid placing the boys in harm’s way,\nincluding: (1) determining the visitation location; (2)\nfacilitating the February 5, 2012 visitation; and (3) training\nits social workers to conduct visitations. There also existed\nmaterial issues of fact as to whether the Service’s actions\nproximately caused the boys to be placed in harm’s way.\n\n\n COUNSEL\n\nTed Buck (argued), Evan Bariault, Anne M. Bremner, Frey\nBuck P.S., Seattle, Washington, for Plaintiffs-Appellants/\nCross-Appellees.\n\nPeter John Helmberger (argued), Assistant Attorney\nGeneral; Robert W. Ferguson, Attorney General; Office\nof the Attorney General, Tacoma, Washington; for\nDefendants-Appellees/Cross-Appellants.\n\f4 COX V. STATE OF WASHINGTON DSHS\n\n OPINION\n\nKOBAYASHI, District Judge:\n\n This appeal arises from the gruesome murder of two\nyoung boys by their father during a social-worker-supervised\nvisit during dependency proceedings brought by the State of\nWashington’s Department of Social and Health Services\n(“DSHS”). One set of grandparents, Judith Cox and Charles\nCox (“Coxes”), subsequently sued the social workers under\n42 U.S.C. § 1983, and DSHS for negligence. The Coxes\nappeal the adverse grant of summary judgment in favor of the\nsocial workers and DSHS. On cross-appeal, DSHS\nchallenges the conclusion that, in placement decisions,\nWashington state law imposes a duty to conduct investigation\nnecessary to avoid placing a child in an abusive or dangerous\nsituation. We have jurisdiction under 28 U.S.C. § 1291, and\nwe affirm the grant of summary judgment in favor of the\nsocial workers based on qualified immunity and the\nconclusion that, under Washington state law, those making\nplacement decisions have a duty to reasonably ensure a child\nis not placed in an abusive situation. We reverse as to the\nnegligence claims against DSHS, and remand for further\nproceedings.\n\nI. BACKGROUND\n\n The following facts are not in dispute. In December\n2009, Susan Powell disappeared from the Utah home she\nshared with her husband, Joshua Powell and their two boys.\nJoshua, the lead suspect in Susan’s disappearance,\nsubsequently moved with the two boys to his father Stephen\nPowell’s home in Washington. On August 25, 2011,\nWashington authorities—acting on information from Utah\n\f COX V. STATE OF WASHINGTON DSHS 5\n\nauthorities investigating Susan’s disappearance—conducted\na search of Stephen’s home. Washington authorities\nconfiscated fifteen computers that, when examined, were\nfound to contain child pornography and evidence of\nStephen’s obsession with Susan. Stephen was arrested, and\nthe two boys were removed from the home and placed under\nDSHS’s care.\n\n On September 28, 2011, the Superior Court of\nWashington, County of Pierce, Juvenile Court (“the\nDependency Court”) issued orders placing the two boys in the\ncustody of DSHS; authorizing placement with the Coxes;\nallowing Joshua weekly visits with the two boys under\nsupervision by a DSHS-approved provider; and prohibiting\nJoshua from either discussing pending litigation with the boys\nor making disparaging remarks about the Coxes. Pursuant to\nthese orders, one of the social workers submitted an initial\nvisiting plan to the Dependency Court that recommended the\nweekly supervised visits take place in DSHS’s Division of\nChild and Family Services (“DCFS”) offices or another\npreapproved DCFS location.\n\n Following an initial review, the Dependency Court found\nthe two boys were dependent and ordered the boys continue\nto be placed with the Coxes but maintained weekly visits with\ntheir father. The Dependency Court also ordered that\nvisitations could be expanded if the parties agreed and that\nJoshua undergo a psychological evaluation and parenting\nassessment. In November 2011, DSHS changed the location\nof the boys’ visits from a DCFS facility to a residence Joshua\nhad established separate and apart from his father. The\nchange was noted in the guardian ad litem’s report, filed with\nthe Dependency Court on January 6, 2012.\n\f6 COX V. STATE OF WASHINGTON DSHS\n\n Psychologist James Manley, Ph.D., evaluated Joshua\nbetween October 2011 and January 2012. As part of his\nevaluation, Dr. Manley assessed Joshua during visitations\noccurring both at a DCFS location and Joshua’s newly-\nestablished residence. Dr. Manley’s initial report registered\nconcerns about some of Joshua’s behaviors but concluded\nthat supervised visitations should continue. In January 2012,\nDr. Manley drafted an addendum to his report that included\na review of 400 pornographic images collected from\nStephen’s computer. Joshua’s potential connection to these\nimages led Dr. Manley to conclude “he may not presently be\na stable and appropriate resource for his children.” Dr.\nManley referred Joshua to a psychosexual evaluation and\nrecommended no “additional or change of visit structure.”\n\n The Dependency Court held its second review shortly\nthereafter. At this hearing, the Dependency Court denied\nJoshua’s motion to have the boys returned to him or placed\nwith his pastor. After reviewing reports from Dr. Manley, the\nguardian ad litem, and social workers, the Dependency Court\nordered visitation to continue twice a week for three hours.\nThe boys continued to live with the Coxes.\n\n On February 5, 2012, the visitation supervisor—a social\nworker who is not a defendant in this case—brought the boys\nto Joshua’s newly-established residence for a scheduled visit.\nAs they had done on prior visits, the boys, anxious to see their\nfather, ran into Joshua’s house ahead of the visitation\nsupervisor. Joshua locked the door to prevent the visitation\nsupervisor from entering the home, and proceeded to\nbludgeon both boys to death, set the house on fire, and kill\nhimself.\n\f COX V. STATE OF WASHINGTON DSHS 7\n\n The Coxes’ lawsuit seeks damages from the social\nworkers, Forest Jacobson, Randy Stephenson, Jane Wilson,\nand Billie Reed-Lyyski, as well as DSHS. The Coxes’\noriginal complaint was filed solely against DSHS, and was\nsuperseded by their amended complaint, which added the\nsocial workers as defendants. The amended complaint\nalleges a 42 U.S.C. § 1983 claim against the social workers\nfor disregarding facts showing that Joshua presented a serious\nrisk of harm to the boys, as well as negligence claims against\nDSHS for its failure to investigate and monitor Joshua prior\nto and during the visits, and failure to train.\n\n The district court granted the defendants’ motion for\nsummary judgment and concluded that the social workers\nhad absolute immunity or, alternatively, qualified immunity\nfrom the Coxes’ § 1983 claims. As to DSHS, the district\ncourt found that DSHS did not fail to provide material\ninformation about Joshua to the Dependency Court, that the\nDependency Court’s February 1, 2012 order was a\nsuperseding, intervening cause that precluded liability for the\ndeaths, and that DSHS did not negligently facilitate the fatal\nvisit. The district court also found that, under state law and\nin placement decisions, DSHS has a duty to investigate in\norder to reasonably ensure that a child is not placed in an\nabusive situation. This appeal and cross-appeal followed.\n\nII. STANDARD OF REVIEW\n\n We review de novo an order granting summary judgment,\napplying the same standard as the district court. Howard v.\nCity of Coos Bay, 871 F.3d 1032, 1038 n.1 (9th Cir. 2017).\nWhether a public official is entitled to immunity and the type\nof that immunity are questions of law also reviewed de novo.\nMabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237\n\f8 COX V. STATE OF WASHINGTON DSHS\n\nF.3d 1101, 1106 (9th Cir. 2001) (citing Greater L.A. Council\non Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987)).\n\nIII. DISCUSSION\n\n A. Liability of the Individual Social Workers under\n § 1983\n\n 1. Absolute Immunity\n\n We turn first to whether the district court properly\nconcluded that the social workers were entitled to absolute\nimmunity with regard to their reports to the Dependency\nCourt and supervision of Joshua’s visits with the two boys.\n“Absolute immunity from private lawsuits covers the official\nactivities of social workers only when they perform quasi-\nprosecutorial or quasi-judicial functions in juvenile\ndependency court.” Hardwick v. Cty. of Orange, 844 F.3d\n1112, 1115 (9th Cir. 2017) (citing Miller v. Gammie, 335\nF.3d 889, 898 (9th Cir. 2003) (en banc)). Absolute immunity\nis available only if the social worker’s “activity or ‘function’\n. . . was . . . part and parcel of presenting the state’s case as a\ngeneric advocate.” Id. “[S]ocial workers are not afforded\nabsolute immunity for their investigatory conduct,\ndiscretionary decisions or recommendations.” Tamas v.\nDep’t of Soc. & Health Servs., State of Wash., 630 F.3d 833,\n842 (9th Cir. 2010) (citing Beltran v. Santa Clara Cty., 514\nF.3d 906, 908–09 (9th Cir. 2008); Miller, 355 F.3d at 898).\n\n Viewing the record in the light most favorable to the\nCoxes, the visitation location was within the social workers’\ndiscretion. There is insufficient evidence that the\nDependency Court required the boys’ visits to take place in\nJoshua’s home. None of the Dependency Court’s rulings,\n\f COX V. STATE OF WASHINGTON DSHS 9\n\noral and written, dictated the visitation location. Thus, the\ndistrict court erred in concluding that the social workers were\nentitled to absolute immunity.\n\n 2. Qualified Immunity\n\n Whether qualified immunity shields the social workers\nfrom liability is a closer question. We must examine “(1)\nwhether the facts, taken in the light most favorable to the\nparty asserting the injury, show that the [social workers’]\nconduct violated a constitutional right and (2) if so, whether\nthe right was clearly established, such that a reasonable\nofficial would understand that his conduct violated that\nright.” Id. (citing Conn v. City of Reno, 572 F.3d 1047, 1061\n(9th Cir. 2009)). Because we conclude that the social\nworkers’ conduct did not violate a constitutional right, we\nneed not consider the second prong.\n\n Where children are in state custody, the Fourteenth\nAmendment’s substantive due process clause protects their\nliberty interest “in social worker supervision and protection\nfrom harm inflicted by [a third party].” Id. (citing Carlo v.\nCity of Chino, 105 F.3d 493, 501 (9th Cir. 1997); Campbell\nv. Burt, 141 F.3d 927, 931 n.2 (9th Cir. 1998)).\n\n “To violate due process, state officials must act with such\ndeliberate indifference to the liberty interest that their actions\n‘shock the conscience.’ Conduct that ‘shocks the conscience’\nis deliberate indifference to a known or so obvious as to\nimply knowledge of, danger.” Tamas, 630 F.3d at 844\n(footnote, citations, and some internal quotation marks\nomitted). As applied to children in state custody, deliberate\nindifference “requires a showing of an objectively substantial\nrisk of harm and a showing that the officials were\n\f10 COX V. STATE OF WASHINGTON DSHS\n\nsubjectively aware of facts from which an inference could be\ndrawn” that such a risk existed and that “either the official\nactually drew that inference or that a reasonable official\nwould have been compelled to draw that inference.” Id. at\n845.\n\n The Coxes argue that the social workers disregarded facts\nthat would compel an inference that there existed an\nobjectively substantial risk that Joshua would physically harm\nhis two sons. Specifically, the Coxes rely on several\nsources—Joshua’s sister, Jennifer Graves, law enforcement\nofficials, and the Coxes—who told the social workers about\ntheir specific concerns that Joshua would physically harm the\nboys. The district court discounted such evidence as mere\nhunches, gut feelings, and speculations that were not\nsupported by “superior knowledge” about what Joshua might\ndo.\n\n While we disagree with the district court’s\ncharacterization of the evidence, we recognize how difficult\nit is for social workers to sift through safety fears and\nconcerns, and to make reasoned and expeditious judgments\nabout the risk of harm. In hindsight, family members’\nconcerns about Joshua physically harming the two boys were\nheartbreakingly prescient. But entitlement to qualified\nimmunity turns on whether the facts known at the time\nreasonably revealed this terrible risk. Regrettably, the facts\ndid not. The initial visiting plan identified a potential safety\nissue related to the risk that Joshua might flee with the two\nboys, but not that he might cause them serious physical harm.\nNext, the reports by the Coxes, Joshua’s sister and law\nenforcement expressed only generalized (albeit strongly\nvoiced) fears about Joshua harming his sons. Further, the\nguardian ad litem reported that Joshua had a strong bond with\n\f COX V. STATE OF WASHINGTON DSHS 11\n\nthe two boys and that the visits were going well. Lastly,\nwhile the two boys ran into their father’s house ahead of the\nvisitation supervisor on at least nine occasions prior to the\nfinal, fatal visit, the children’s actions reasonably could be\ninterpreted as indications that they were not afraid of and\nwere excited to see their father, as opposed to indications of\na risk of physical harm. Viewing the record in the light most\nfavorable to the Coxes, there is insufficient evidence to show\nthat the social workers recognized, or should have\nrecognized, an objectively substantial risk that Joshua would\nphysically harm his sons. As the social workers did not act\nwith deliberate indifference to the boys’ liberty interest, the\ndistrict court did not err in concluding that the social workers\nwere entitled to qualified immunity.\n\n B. Negligence Claims\n\n As with a child placed in a foster or prospective adoptive\nhome, DSHS is the “custodian and caretaker” of a dependent\nchild who has been removed from his biological parent’s\ncustody and subject to court-ordered supervised visitations\nwith the biological parent. The Coxes presented multiple\ntheories of negligence against DSHS that can be aggregated\ninto two different groups. The first group involves actions\noccurring before the issuance of the Dependency Court’s\nFebruary 1 order, and includes claims that DSHS failed to use\nreasonable care while: (1) investigating and collecting\ninformation about Joshua’s potential for abusive behavior;1\n\n\n 1\n We emphasize that the Coxes did not plead a “negligent\ninvestigation” claim. Under Washington law, there is no “general tort\nclaim for negligent investigation[,] [and a] negligent investigation cause\nof action against DSHS is a narrow exception that is based on, and limited\nto,” the scope of Wash. Rev. Code § 26.44.050. M.W. v. Dep’t of Soc. &\n\f12 COX V. STATE OF WASHINGTON DSHS\n\nand (2) determining Joshua’s visitation duration and location.\nThe second group involves actions occurring after or\nunrelated to the issuance of the Dependency Court’s February\n1 order, and includes claims that DSHS failed to use\nreasonable care while: (1) facilitating the February 5, 2012\nvisitation; and (2) training its social workers to conduct\nvisitations.\n\n Under Washington law, a negligence action requires proof\nof four elements: existence of a duty; breach of the duty; a\nresulting injury; and proximate causation between the breach\nand the resulting injury. Michaels v. CH2M Hill, Inc., 257\nP.3d 532, 542 (Wash. 2011).\n\n\n\nHealth Servs., 70 P.3d 954, 960 (Wash. 2003) (en banc). Section\n26.44.050 states, in pertinent part:\n\n Except as provided in [Wash. Rev. Code]\n 26.44.030(11), upon the receipt of a report concerning\n the possible occurrence of abuse or neglect, the law\n enforcement agency or the department [of social and\n health services] must investigate and provide the\n protective services section with a report in accordance\n with chapter 74.13 [Wash. Rev. Code], and where\n necessary to refer such report to the court.\n\nWash. Rev. Code § 26.44.050. Thus, “a claim for negligent investigation\nagainst DSHS is available only to children, parents, and guardians of\nchildren who are harmed because DSHS has[, in response to report of\npossible abuse or neglect,] gathered incomplete or biased information that\nresults in a harmful placement decision.” M.W., 70 P.3d at 960. The\nCoxes do not allege a negligent investigation claim pursuant to\n§ 26.44.050; they merely rely on DSHS’s failure to use reasonable care in\nits investigation of this case as one of the ways in which DSHS breached\nthe duty of care it owed the boys because of its special relationship with\nthe boys. See infra.\n\f COX V. STATE OF WASHINGTON DSHS 13\n\n 1. Duty of Care Owed to the Boys\n\n On cross-appeal, DSHS contends that the district court\nerred in concluding that, under Washington law, DSHS owed\nthe boys a duty of care to reasonably ensure it did not place\nthe boys in a dangerous or abusive situation. It is wrong.\n\n The threshold determination in a negligence action is\nwhether a defendant owes a duty of care to the plaintiff. To\nbe actionable, the duty must be one owed to the injured\nplaintiff, and not one owed to the public in general. “While\nthere is generally no duty to prevent a third person from\nintentionally harming another, a duty arises when a special\nrelationship exists between the defendant and either the third\nparty or the foreseeable victim of the third party’s conduct.”\nH.B.H. v. State, 429 P.3d 484, 492 (Wash. 2018)\n(“H.B.H. II”) (citations and internal quotation marks omitted).\nA duty to prevent intentional harm by a third party arises\nwhere the defendant has either: (1) a special relationship with\nthe third party, such that the defendant has a duty to control\nthe third party’s conduct; or (2) a special relationship with the\nvictim, such that the defendant has a duty to protect the\nvictim. Id. (citations omitted). The second type of special\nrelationship, which the Supreme Court of Washington has\ndescribed as an “entrustment for the protection of a\nvulnerable victim,” id. at 494 (citation omitted), is relevant to\nthe Coxes’ claims against DSHS.\n\n In H.B.H. II, the Supreme Court of Washington held that\na special relationship exists between DSHS and the dependent\nchildren it places in foster homes. Id. at 496. The children in\nthat case sued the State of Washington, claiming “its\nnegligence in failing to investigate or take other protective\n\f14 COX V. STATE OF WASHINGTON DSHS\n\naction . . . allowed the[ir] [foster parents] to abuse them.” Id.\nat 488. The Supreme Court of Washington held:\n\n The State, through DSHS, stands in a\n special relationship with foster children.\n While DSHS contracts with foster parents and\n others to provide day-to-day care for\n dependent children, the State alone is\n custodian and caretaker of foster children.\n Consistent with our precedent, we hold that\n the special relationship between DSHS and\n foster children gives rise to a protective duty\n under Restatement § 315(b). . . .\n\nId. at 499 (citation and internal quotation marks omitted).\nThis duty to protect includes the duty to exercise reasonable\ncare in conducting the investigations underlying DSHS’s\ndecisions regarding the foster children, and a breach of that\nduty is actionable even where a § 26.44.050 claim is not\navailable. See id. at 496.\n\n Although H.B.H. II and the decision that it\naffirmed—H.B.H. v. State, 387 P.3d 1093 (Wash. Ct. App.\n2017) (“H.B.H. I”)—were decided after the district court’s\ndecision in this case, the holdings in H.B.H. I and H.B.H. II\nare not novel. See H.B.H. II, 429 P.3d at 496 (noting that\nM.W., 70 P.3d 954, “confirms, rather than rejects, common\nlaw claims [against DSHS] based on a special relationship”).\nH.B.H. I also recognized the State’s special relationship with\nfoster children, and a subsequent court of appeals decision\nrecognized that the court of appeals’ decision in “H.B.H. [I]\nis consistent with . . . earlier cases . . . finding a duty of\nprotection arising from a special relationship under\nRestatement (Second) of Torts § 315(b).” C.L. v. Dep’t of\n\f COX V. STATE OF WASHINGTON DSHS 15\n\nSoc. & Health Servs., 402 P.3d 346, 350 (Wash. Ct. App.\n2017). Indeed, as early as 1991, the Supreme Court of\nWashington implicitly recognized a duty of protection in\nallowing foster children to pursue negligence claims against\nthe State and its caseworkers related to the children’s\nplacement in foster homes. Babcock v. State, 809 P.2d 143\n(Wash. 1991).\n\n Although H.B.H., C.L., and Babcock involved placement\nof dependent children in foster or adoptive homes and\nsubsequent harm inflicted upon the children as a result of that\nplacement, the relationship here is identical. As with a child\nplaced in a foster or prospective adoptive home, DSHS is the\n“custodian and caretaker” of a dependent child who has been\nremoved from his biological parent’s custody and subject to\ncourt-ordered supervised visitations with the biological\nparent. See H.B.H. II, 429 P.3d at 499. That child is “wholly\nexposed to the will of the [biological] parent” during a\nvisitation, unless DSHS reasonably investigates and\nsupervises the conditions of visitation. See H.B.H. I, 387\nP.3d at 1101. Thus, a special relationship and duty existed\nbetween DSHS and the boys.2\n\n While the district court’s conclusion was made without\nthe benefit of the Washington Supreme Court’s holding in\nH.B.H. II, there is sufficient basis to affirm its conclusion that\nDSHS had a duty to investigate in order to reasonably ensure\nthat a child is not placed in an abusive situation. Because\nDSHS owed a duty to protect the boys, we affirm the district\ncourt’s conclusion that it owed a duty to avoid placing them\n\n\n 2\n Because we hold that the second special relationship exception\napplies, we need not address whether another type of special relationship\nexception applies.\n\f16 COX V. STATE OF WASHINGTON DSHS\n\nin an abusive situation during their visitations with Joshua.\nSee S. Cal. Painters & Allied Trades, Dist. Council No. 36 v.\nRodin & Co., 558 F.3d 1028, 1034 n.5 (9th Cir. 2009)\n(recognizing we “may affirm on any ground supported by the\nrecord, even if it differs from the district court’s rationale”\n(citation omitted)). DSHS’s cross-appeal is denied.\n\n 2. Breach\n\n The district court held that, as a matter of law, DSHS did\nnot breach its duty of care owed to the boys in conducting the\ninvestigation necessary to provide all material information to\nthe Dependency Court,3 determining the duration and location\nof visitations, or facilitating the February 5, 2012 visitation.4\n\n What constitutes reasonable care and whether a defendant\nbreached its duty “are fact questions for the trier of fact.”\nHertog v. City of Seattle, 979 P.2d 400, 406 (Wash. 1999).\nWashington courts have declined to comprehensively define\nthe bounds of the duty DSHS owed to the boys. Indeed,\nH.B.H. I cautioned that “compliance with DSHS policies is\n[not] necessarily enough to ensure compliance with the duty\n\n\n\n 3\n Because the inquiry into whether DSHS breached its duty of care\nby failing to conduct the investigation necessary to inform the\nDependency Court of all material information is the same as the inquiry\ninto whether the Dependency Court’s February 1 order was a superseding\ncause, we address both inquiries in the proximate cause section.\n 4\n The district court did not specifically address the Coxes’ claim that\nDSHS negligently trained its social workers to conduct visitations.\nHowever, it appears the district court held the claim necessarily fails\nbecause it concluded that no social worker unreasonably facilitated a\nvisitation.\n\f COX V. STATE OF WASHINGTON DSHS 17\n\nto exercise ordinary care to protect foster children.” 387 P.3d\nat 1101 n.6.\n\n Here, as to the Coxes’ claim that DSHS unreasonably\nmoved the visitation location to Joshua’s residence, the Coxes\ncontend the decision took the boys from a secure government\nfacility to a location where Joshua—who was both the\nprimary suspect in the disappearance of his wife and\nsuspected to have been in the possession of child\npornography—had unfettered control. DSHS’s decision was\ninfluenced by discussions Joshua had with the boys about his\nnew residence—discussions that violated the Dependency\nCourt’s visitation order. DSHS’s decision was also made\nnotwithstanding Joshua’s repeated violations of the\nDependency Court’s visitation order and contrary to DSHS’s\nvisitation plans. Further, DSHS continued to allow visitations\ndespite Dr. Manley’s notation that “it is difficult to conclude\n[Joshua] could provide a stable, safe, and consistent nurturing\nenvironment for his sons.” Similarly, the Coxes claim DSHS\nrashly decided to increase the duration of the visitations prior\nto the completion of a psychological evaluation and when the\narrest of Joshua was “imminent.”\n\n Viewing the facts and reasonable inferences therefrom in\nthe light most favorable to the Coxes, there remains a genuine\nissue of material fact as to whether DSHS breached its duty\nof care owed to the boys in deciding to alter the location and\nduration of the visitations. The district court’s reliance on\nDSHS’s “continuing goal of reunification” and “relative\nsuccess of earlier family visits” to hold that DSHS’s decision\nwas reasonable as a matter of law ignores the extraordinary\nsafety concerns Joshua presented. Given the information\nDSHS possessed regarding Joshua, we cannot say that\nDSHS’s decision to move visitations to Joshua’s home and\n\f18 COX V. STATE OF WASHINGTON DSHS\n\nincrease duration of visitations was reasonable as a matter of\nlaw.\n\n The Coxes also argue that DSHS unreasonably facilitated\nthe February 5, 2012 visitation. They assert that DSHS\nshould have relocated the visitations before the February 5\nvisitation because Joshua was in an increasingly desperate\nposition following Dr. Manley’s concerns in his report\naddendum, the Dependency Court’s denial of Joshua’s\nmotion to remove children from the Coxes’ home, and the\nDependency Court’s order that Joshua undergo a\npsychosexual evaluation. As to the actual visitation, the\nCoxes argue it was unreasonable that DSHS had no\nemergency plan in place, as evidenced by the nearly 10\nminutes that elapsed before the visitation supervisor’s phone\ncall to 911. Similarly, the Coxes argue that DSHS did not use\nreasonable care in training its visitation supervisors, and that\nthe visitation supervisor in this case had never conducted a\nresidential supervised visitation before supervising the boys.\n\n Again, we cannot conclude as a matter of law that DSHS\nreasonably facilitated the February 5 visitation or reasonably\ntrained its visitation supervisors. DSHS reserves the right to\nchange aspects of visitations “based on increased or\ndecreased safety concerns, changes in permanency plans\nand/or the well-being of the child.” Reacting to new\ninformation and making appropriate changes falls within the\nspirit and duty DSHS owes to dependent children. However,\nno documented response was made or emergency plan\ncontemplated by DSHS despite revelations of increasingly\nconcerning information about Joshua, and DSHS’s utilization\nof a visitation supervisor who lacked firsthand experience\nwith the safety concerns of residential visitations. If such\n\f COX V. STATE OF WASHINGTON DSHS 19\n\nomissions were reasonable as a matter of law, they would\nrender hollow DSHS’s duty to dependent children.\n\n 3. Proximate Cause\n\n The district court also held that the Dependency Court’s\nFebruary 1 order, which concluded that visitation would\n“remain as it currently is,” was a superseding cause that\nsevered DSHS’s liability.\n\n To prevail on its negligence claims, the Coxes must prove\nDSHS’s incomplete investigation and failure to produce\nmaterial information to the Dependency Court was a\nproximate cause of the boys’ death. See Petcu v. State, 86\nP.3d 1234, 1244 (Wash. 2004). Proximate cause contains\ntwo elements: cause in fact and legal cause. “Cause in fact is\na jury question, established by showing that ‘but for’ the\ndefendant’s actions, the claimant would not have been\ninjured.” Id. at 1244. “Legal cause involves the\ndetermination, in view of ‘logic, common sense, justice,\npolicy, and precedent,’ of the extent to which a defendant\nshould remain legally responsible for the harmful\nconsequences of his acts” and is generally “a question for the\ncourt.” Id. at 1244–45 (quoting Minahan v. W. Wash. Fair\nAss’n, 73 P.3d 1019, 1023 (Wash. Ct. App. 2003)).\n\n Judicial action may sufficiently disrupt the causal\nconnection between a negligent act and subsequent harm to\nbecome a superseding, intervening cause. See Bishop v.\nMiche, 973 P.2d 465, 472 (Wash. 1999). A judicial order\nconstitutes a superseding, intervening cause “if all material\ninformation has been presented to the court and reasonable\nminds could not differ as to this question.” Tyner v. Dep’t of\nSoc. & Health Servs., 1 P.3d 1148, 1159 (Wash. 2000).\n\f20 COX V. STATE OF WASHINGTON DSHS\n\nOtherwise, materiality is “a question for the jury.” Id. at\n1158.\n\n Under this standard, the district court’s grant of summary\njudgment in favor of DSHS must be reversed. While the\ndistrict court recognized that the Dependency Court’s order\ndirected that visitations continue to occur, this directive did\nnot wholly “ratify” the manner in which DSHS conducted the\nboys’ visitations. If DSHS failed to supply “sufficient\nmaterial information” to the Dependency Court, then the\nDependency Court’s order did not break the causal chain.\nSee id. at 1159.\n\n Information withheld from the Dependency Court\nincluded opinions of Detectives Gary Sanders and Teresa\nBerg, investigators of the child pornography found in Steven\nPowell’s home. Detectives Sanders and Berg told DSHS that,\nbased on their personal interactions with the boys and Joshua,\nthey had concerns for the boys’ safety and believed Joshua\nposed a danger to the boys.5 DSHS also withheld the opinion\nof Joshua’s sister, Jennifer Graves, who stated Joshua was\n“unpredictable and volatile” and expressed concerns for the\nboys’ well-being while in Joshua’s care. Other information\nwithheld included concerned opinions from the boys’\ncounselor, and Joshua’s repeated violations of the\nDependency Court’s orders.\n\n\n\n 5\n DSHS argues that four social workers and attorney John Long\nsigned declarations denying that Detectives Sanders and Berg ever made\nthese statements. However, at this stage, we do not resolve issues of\nmaterial fact. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam)\n(“[C]ourts may not resolve genuine disputes of fact in favor of the party\nseeking summary judgment.” (citations omitted)).\n\f COX V. STATE OF WASHINGTON DSHS 21\n\n The district court held that the above-referenced\ninformation was immaterial as a matter of law. This is\nincorrect. The Supreme Court of Washington has recognized\nthat such information as opinions about an individual’s\ncapability to do harm to children from family members or\nthose with close familiarity with the individual may be\nmaterial. See Tyner, 1 P.3d at 1158. Here, it cannot be said\nthat the Dependency Court could have reached but one\nconclusion—to ratify visitations—had it been aware of the\nwithheld information. Thus, the district court erred in\nresolving as a matter of law the question of materiality as to\nsuch information.\n\nIV. CONCLUSION\n\n Material issues of fact exist regarding whether DSHS\nused reasonable care to avoid placing the boys in harm’s way,\nincluding: (1) determining Joshua’s visitation location; (2)\nfacilitating the February 5, 2012 visitation; and (3) training its\nsocial workers to conduct visitations. There also exists\nmaterial issues of fact as to whether DSHS’s actions\nproximately caused the boys to be placed in harm’s way. We\nreverse and remand these issues for trial.\n\n The dismissal of the negligence claims against\nDefendants State of Washington and Department of Social\nand Health Services is reversed and remanded because the\ndistrict court dismissed them without according justifiable\ninferences in favor of the non-moving party. We express no\nopinion as to the merits of those reinstated claims.\n\n We affirm the district court’s ruling that the social\nworkers, Defendants Forest Jacobson, Randy Stephenson,\nJane Wilson, and Billie Reed-Lyyski, were entitled to\n\f22 COX V. STATE OF WASHINGTON DSHS\n\nqualified immunity from Plaintiffs Judith Cox and Charles\nCox’s 42 U.S.C. § 1983 claims. The judgment in favor of\nJacobson, Stephenson, Wilson, and Reed-Lyyski is therefore\naffirmed.\n\n We affirm the district court’s conclusion that, under\nWashington state law, DSHS, in making placement decisions,\nhas a duty to reasonably ensure that it does not place a\ndependent child in an abusive situation.\n\n AFFIRMED in part, REVERSED in part, and\nREMANDED.\n\n Each party to bear its own costs on appeal.\n[END_CASE]", "role": "user" } ]
4,580,891		United States v. Gordon Hall	2019-01-11	17-10422	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-10422\n Plaintiff-Appellee,\n D.C. No.\n v. 2:14-cr-00184-\n NVW-1\n GORDON LEROY HALL,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Neil V. Wake, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Per Curiam Opinion\n\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 UNITED STATES V. HALL\n\n SUMMARY \n\n\n Criminal Law\n\n The panel reversed in part a criminal judgment in a case\nin which the defendant appealed a special condition of\nsupervised release that provides that the defendant is\npermitted to have contact with his son “only for normal\nfamilial relations but is prohibited from any contact,\ndiscussion, or communication concerning financial or\ninvestment matters except matters limited to defendant’s\nown support.”\n\n The panel held that the condition is unconstitutionally\nvague, and struck the offending words “only for normal\nfamilial relations” from the condition.\n\n\n COUNSEL\n\nElissa Larouche (argued) and Daniel L. Kaplan, Assistant\nFederal Public Defenders; Jon M. Sands, Federal Public\nDefender; Office of the Federal Public Defender, Phoenix,\nArizona; for Defendant-Appellant.\n\nLisa E. Jennis (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth\nStrange, First Assistant United States Attorney; United\nStates Attorney’s Office, Phoenix, Arizona; for Plaintiff-\nAppellee.\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. HALL 3\n\n OPINION\n\nPER CURIAM:\n\n Gordon Hall (“Hall”) and his son Benton (“Benton”)\nwere both sentenced to prison for their business venture\nhelping others defraud the government through false money\norders. The two were already incarcerated for a separate joint\ncriminal enterprise. For the second time, Hall, who is still in\nprison, appeals a special condition of his anticipated release\nrestricting his relationship with his family. 1 Special\nCondition 11 provides that Hall “is permitted to have contact\nwith Benton [] only for normal familial relations but is\nprohibited from any contact, discussion, or communication\nconcerning financial or investment matters except matters\nlimited to defendant’s own support.” Hall objected at\nsentencing that the condition is unconstitutionally vague.\nWe agree, and strike the offending words “only for normal\nfamilial relations” from the condition.\n\n A supervised release condition “violates due process of\nlaw if it either forbids or requires the doing of an act in terms\nso vague that men of common intelligence must necessarily\nguess at its meaning and differ as to its application.” United\nStates v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (per\ncuriam) (citations and quotation marks omitted); see also\nUnited States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.\n\n 1\n In an earlier memorandum disposition, this court considered\nanother version of this condition, which, without exception for relatives,\nprohibited Hall from “associat[ing] with . . . any person convicted of a\nfelony unless granted permission to do so by the probation officer.”\nUnited States v. Hall, 681 F. App’x 621, 623–24 (9th Cir. 2017). Because\nthe trial court had imposed that condition without justifying or limiting\nthe restriction on Hall’s right to associate with his children, who had been\nconvicted of felonies, we vacated and remanded. Id.\n\f4 UNITED STATES V. HALL\n\n2015). The government cannot save an otherwise\nimpermissible condition by “promising to enforce it in a\nnarrow manner.” Id. at 1037 (alterations omitted) (quoting\nSoltero, 510 F.3d at 867 n.10). Although usually this court\n“give[s] considerable deference to a district court’s\ndetermination of the appropriate supervised release\nconditions,” United States v. Weber, 451 F.3d 552, 557 (9th\nCir. 2006), it “review[s] carefully” conditions that implicate\nthe “fundamental liberty interest in having contact with\none’s children,” United States v. Wolf Child, 699 F.3d 1082,\n1089, 1091 (9th Cir. 2012), or the defendant’s First\nAmendment rights, cf. Cal. Teachers Ass’n v. State Bd. of\nEduc., 271 F.3d 1141, 1150 (9th Cir. 2001).\n\n The phrase “normal familial relations” is susceptible to\nmany different interpretations, and so raises questions with\nno clear answers. Must relations be “normal” for that\nparticular family, or “normal” for families in general? If the\nlatter, as the government contended at oral argument, how is\na defendant to know what a “normal” family is and does, in\nlight of the tremendous diversity of family structures and\nfamily habits, customs, and activities in this country? Cf.\nJohnson v. United States, 135 S. Ct. 2551, 2557–58 (2015)\n(identifying the unconstitutional ambiguities of the Armed\nCareer Criminal Act residual clause).\n\n Further, unconventional political activities or religious\ntraditions in which a family might collectively engage may\nnot be “normal” for families in general, but they are, with\nnarrow exceptions, constitutionally protected. See, e.g.,\nEmployment Div., Dep’t of Human Res. of Oregon v. Smith,\n494 U.S. 872, 876–78 (1990); Wisconsin v. Yoder, 406 U.S.\n205, 234 (1972). Whether or not such an interpretation of the\ncondition by a probation officer or judge is likely,\n“[u]ncertain meanings inevitably lead citizens to steer far\n\f UNITED STATES V. HALL 5\n\nwider of the unlawful zone than if the boundaries of the\nforbidden areas were clearly marked.” Cal. Teachers Ass’n,\n271 F.3d at 1150 (quotation marks and citations omitted).\n\n If the district court meant only to prohibit Hall and\nBenton from participating in illegal activities together, it\ncould have said exactly that and no more, as defense counsel\nsuggested at the resentencing hearing. Notably, Hall is\ngenerally prohibited from engaging in illegal activities by his\nfirst condition of supervised release.\n\n REVERSED in part.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358144/", "author_raw": "PER CURIAM"}]}	RONALD M GOULD	MARSHA S BERZON	FREDERIC BLOCK	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580891/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Gordon Hall\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-10422\n Plaintiff-Appellee,\n D.C. No.\n v. 2:14-cr-00184-\n NVW-1\n GORDON LEROY HALL,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Neil V. Wake, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Per Curiam Opinion\n\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 UNITED STATES V. HALL\n\n SUMMARY \n\n\n Criminal Law\n\n The panel reversed in part a criminal judgment in a case\nin which the defendant appealed a special condition of\nsupervised release that provides that the defendant is\npermitted to have contact with his son “only for normal\nfamilial relations but is prohibited from any contact,\ndiscussion, or communication concerning financial or\ninvestment matters except matters limited to defendant’s\nown support.”\n\n The panel held that the condition is unconstitutionally\nvague, and struck the offending words “only for normal\nfamilial relations” from the condition.\n\n\n COUNSEL\n\nElissa Larouche (argued) and Daniel L. Kaplan, Assistant\nFederal Public Defenders; Jon M. Sands, Federal Public\nDefender; Office of the Federal Public Defender, Phoenix,\nArizona; for Defendant-Appellant.\n\nLisa E. Jennis (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth\nStrange, First Assistant United States Attorney; United\nStates Attorney’s Office, Phoenix, Arizona; for Plaintiff-\nAppellee.\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. HALL 3\n\n OPINION\n\nPER CURIAM:\n\n Gordon Hall (“Hall”) and his son Benton (“Benton”)\nwere both sentenced to prison for their business venture\nhelping others defraud the government through false money\norders. The two were already incarcerated for a separate joint\ncriminal enterprise. For the second time, Hall, who is still in\nprison, appeals a special condition of his anticipated release\nrestricting his relationship with his family. 1 Special\nCondition 11 provides that Hall “is permitted to have contact\nwith Benton [] only for normal familial relations but is\nprohibited from any contact, discussion, or communication\nconcerning financial or investment matters except matters\nlimited to defendant’s own support.” Hall objected at\nsentencing that the condition is unconstitutionally vague.\nWe agree, and strike the offending words “only for normal\nfamilial relations” from the condition.\n\n A supervised release condition “violates due process of\nlaw if it either forbids or requires the doing of an act in terms\nso vague that men of common intelligence must necessarily\nguess at its meaning and differ as to its application.” United\nStates v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (per\ncuriam) (citations and quotation marks omitted); see also\nUnited States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.\n\n 1\n In an earlier memorandum disposition, this court considered\nanother version of this condition, which, without exception for relatives,\nprohibited Hall from “associat[ing] with . . . any person convicted of a\nfelony unless granted permission to do so by the probation officer.”\nUnited States v. Hall, 681 F. App’x 621, 623–24 (9th Cir. 2017). Because\nthe trial court had imposed that condition without justifying or limiting\nthe restriction on Hall’s right to associate with his children, who had been\nconvicted of felonies, we vacated and remanded. Id.\n\f4 UNITED STATES V. HALL\n\n2015). The government cannot save an otherwise\nimpermissible condition by “promising to enforce it in a\nnarrow manner.” Id. at 1037 (alterations omitted) (quoting\nSoltero, 510 F.3d at 867 n.10). Although usually this court\n“give[s] considerable deference to a district court’s\ndetermination of the appropriate supervised release\nconditions,” United States v. Weber, 451 F.3d 552, 557 (9th\nCir. 2006), it “review[s] carefully” conditions that implicate\nthe “fundamental liberty interest in having contact with\none’s children,” United States v. Wolf Child, 699 F.3d 1082,\n1089, 1091 (9th Cir. 2012), or the defendant’s First\nAmendment rights, cf. Cal. Teachers Ass’n v. State Bd. of\nEduc., 271 F.3d 1141, 1150 (9th Cir. 2001).\n\n The phrase “normal familial relations” is susceptible to\nmany different interpretations, and so raises questions with\nno clear answers. Must relations be “normal” for that\nparticular family, or “normal” for families in general? If the\nlatter, as the government contended at oral argument, how is\na defendant to know what a “normal” family is and does, in\nlight of the tremendous diversity of family structures and\nfamily habits, customs, and activities in this country? Cf.\nJohnson v. United States, 135 S. Ct. 2551, 2557–58 (2015)\n(identifying the unconstitutional ambiguities of the Armed\nCareer Criminal Act residual clause).\n\n Further, unconventional political activities or religious\ntraditions in which a family might collectively engage may\nnot be “normal” for families in general, but they are, with\nnarrow exceptions, constitutionally protected. See, e.g.,\nEmployment Div., Dep’t of Human Res. of Oregon v. Smith,\n494 U.S. 872, 876–78 (1990); Wisconsin v. Yoder, 406 U.S.\n205, 234 (1972). Whether or not such an interpretation of the\ncondition by a probation officer or judge is likely,\n“[u]ncertain meanings inevitably lead citizens to steer far\n\f UNITED STATES V. HALL 5\n\nwider of the unlawful zone than if the boundaries of the\nforbidden areas were clearly marked.” Cal. Teachers Ass’n,\n271 F.3d at 1150 (quotation marks and citations omitted).\n\n If the district court meant only to prohibit Hall and\nBenton from participating in illegal activities together, it\ncould have said exactly that and no more, as defense counsel\nsuggested at the resentencing hearing. Notably, Hall is\ngenerally prohibited from engaging in illegal activities by his\nfirst condition of supervised release.\n\n REVERSED in part.\n[END_CASE]", "role": "user" } ]
4,580,892		United States v. Alfredo Landeros	2019-01-11	17-10217	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-10217\n Plaintiff-Appellee,\n D.C. No.\n v. 4:16-cr-00855-\n RCC-BGM-1\nALFREDO ENOS LANDEROS,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Raner C. Collins, District Judge, Presiding\n\n Argued and Submitted September 12, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Marsha S. Berzon, Johnnie B. Rawlinson, and\n Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Berzon\n\f2 UNITED STATES V. LANDEROS\n\n SUMMARY \n\n\n Criminal Law\n\n Reversing the district court’s denial of a motion to\nsuppress evidence obtained as a result of a traffic stop, the\npanel held that law enforcement officers may not extend a\nlawfully initiated vehicle stop because a passenger refuses to\nidentify himself, absent reasonable suspicion that the\nindividual has committed a criminal offense.\n\n The panel recognized that Rodriguez v. United States,\n135 S. Ct. 1609 (2015) (holding that an officer may conduct\ncertain unrelated checks during an otherwise lawful traffic\nstop but may not do so in a way that prolongs the stop, absent\nthe reasonable suspicion ordinarily demanded to justify\ndetaining an individual), at least partially abrogated United\nStates v. Turvin, 517 F.3d 1097 (9th Cir. 2008) (holding that\nan officer did not transform a lawful traffic stop into an\nunlawful one when, without reasonable suspicion, he took a\nbreak from writing a traffic citation to ask the driver about a\nmethamphetamine laboratory and obtain the driver’s consent\nto search the his truck). The panel held that because the\ndistrict court’s approval of the duration of the stop in this\ncase was based on Turvin and disregarded Rodriguez, it was\npremised on legal error.\n\n Observing that the record does not demonstrate that the\nofficer had a reasonable suspicion that the defendant was out\npast his curfew or drinking underage, the panel held that any\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. LANDEROS 3\n\nextension of the traffic stop to investigate those matters was\nan unlawful seizure.\n\n Based on the plain text of Ariz. Rev. Stat. Ann. § 13-\n2412(A), the panel rejected the government’s contention that\nthe defendant’s refusal to identify himself provided\nreasonable suspicion of the additional offenses of failure to\nprovide identification and failure to comply with law\nenforcement orders.\n\n Because the police could not lawfully order the\ndefendant to identify himself, the panel explained that the\ndefendant’s repeated refusal to do so did not constitute a\nfailure to comply with an officer’s lawful order under Ariz.\nRev. Stat. Ann. § 28-622(A). The panel concluded that there\nwas therefore no justification for the extension of the\ndetention to allow the officers to press the defendant further\nfor his identity.\n\n The panel held that the bullets the defendant was\nconvicted of possessing, only because he was ordered from\nthe car as part of the unlawfully extended seizure and\nsubsequently consented to a search of his pockets, cannot be\nintroduced at trial. The panel wrote that because the stop\nwas no longer lawful by the time the officers ordered the\ndefendant to leave the car, the validity or not of the exit order\ndoes not matter.\n\n The panel addressed in a concurrently filed\nmemorandum disposition the defendant’s challenge to the\ndistrict court’s denial of his motion to dismiss the\nindictment.\n\f4 UNITED STATES V. LANDEROS\n\n COUNSEL\n\nLee Tucker (argued), Assistant Federal Defender; Jon M.\nSands, Federal Defender; Federal Public Defender’s Office,\nTucson, Arizona; for Defendant-Appellant.\n\nCharisse Arce (argued) and Angela W. Woolridge, Assistant\nUnited States Attorneys; Elizabeth A. Strange, First\nAssistant United States Attorney; Robert L. Miskell,\nAppellate Chief; United States Attorney’s Office, Tucson,\nArizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nBERZON, Circuit Judge:\n\n Our question is whether law enforcement officers may\nextend a lawfully initiated vehicle stop because a passenger\nrefuses to identify himself, absent reasonable suspicion that\nthe individual has committed a criminal offense. We\nconclude that they may not do so. As a result, we reverse. 1\n\n I.\n\n Early in the morning of February 9, 2016, police officer\nClinton Baker pulled over a car driving 11 miles over the\nspeed limit. The stop occurred on a road near the Pascua\nYaqui Indian reservation. Alfredo Landeros sat in the front\npassenger seat next to the driver. Two young women were in\n\n\n 1\n Appellant also challenges the district court’s denial of his motion\nto dismiss the indictment based on alleged police abuses after his arrest.\nWe address that challenge in a concurrently filed memorandum\ndisposition.\n\f UNITED STATES V. LANDEROS 5\n\nthe back seat. The driver apologized to Officer Baker for\nspeeding and provided identification.\n\n Officer Baker wrote in his incident report and testified\nthat he smelled alcohol in the car. The two women in the\nbackseat appeared to him to be minors, and therefore subject\nto both the underage drinking laws and the 10:00 p.m.\nPascua Yaqui curfew. 2 According to the two women’s\ntestimony, Officer Baker requested their identification and\nexplained that he was asking because they looked younger\nthan 18 years old “and it was past a curfew.” The two\nwomen—who were 21 and 19 years old—complied.\n\n As he stated at the suppression hearing, Officer Baker\ndid not believe that Landeros was underage, and he was not.\nNonetheless, Officer Baker, in his own words,\n“commanded” Landeros to provide identification. Later,\nOfficer Baker explained it was “standard for [law\nenforcement] to identify everybody in the vehicle.”\nLanderos refused to identify himself, and informed Officer\nBaker—correctly, as we shall explain—that he was not\nrequired to do so. Officer Baker then repeated his “demand[]\nto see [Landeros’s] ID.” Landeros again refused. As a result,\nOfficer Baker called for back-up, prolonging the stop.\nOfficer Frank Romero then arrived, and he too asked for\nLanderos’s identification. The two officers also repeatedly\n“commanded” Landeros to exit the car because he was not\nbeing “compliant.”\n\n Landeros eventually did leave the car. At least several\nminutes passed between Officer Baker’s initial request for\n\n\n 2\n Officer Baker is a police officer with the Pascua Yaqui Police\nDepartment who has authority to enforce both the Pascua Yaqui tribal\ncode and Arizona state laws.\n\f6 UNITED STATES V. LANDEROS\n\nLanderos’s identification and his exit from the car, although\nthe record does not reflect the exact length of time.\n\n Officer Baker testified that, as Landeros exited the car,\nhe saw for the first time pocketknives, a machete, and two\nopen beer bottles on the floorboards by the front passenger\nseat. Arizona prohibits open containers of alcohol in cars on\npublic highways, Ariz. Rev. Stat. Ann. § 4-251. Officer\nBaker then placed Landeros under arrest. Consistent with\nOfficer Baker’s testimony, the government represented in its\ndistrict court briefing that Landeros was arrested both for\npossessing an open container 3 and for “failure to provide his\ntrue full name and refusal to comply with directions of police\nofficers.” See Ariz. Rev. Stat. Ann. § 13-2412(A) (“It is\nunlawful for a person, after being advised that the person’s\nrefusal to answer is unlawful, to fail or refuse to state the\nperson’s true full name on request of a peace officer who has\nlawfully detained the person based on reasonable suspicion\nthat the person has committed, is committing or is about to\ncommit a crime.”); id. § 28-622(A) (“A person shall not\nwillfully fail or refuse to comply with any lawful order or\ndirection of a police officer invested by law with authority\nto direct, control or regulate traffic.”).\n\n The officers handcuffed Landeros as soon as he exited\nthe car. Officer Romero asked Landeros if he had any\nweapons; Landeros confirmed that he had a knife in a\npocket. Officer Romero requested consent to search\nLanderos’s pockets, and Landeros agreed. During that\n\n\n\n 3\n We do not reach the question whether, if the seizure were otherwise\nlawful, law enforcement could have lawfully detained and arrested\nLanderos based on the open container of alcohol seen where he had been\nsitting. He was never charged with that offense.\n\f UNITED STATES V. LANDEROS 7\n\nsearch, Officer Romero found a smoking pipe and six bullets\nin Landeros’s pockets.\n\n Two and a half months later, Landeros was indicted for\npossession of ammunition by a convicted felon, 18 U.S.C.\n§§ 922(g)(1), 924(a)(2). He moved to suppress the evidence\nbased on the circumstances of the stop, and also to dismiss\nthe indictment based on alleged abuse by the police officers\nafter the search. The magistrate judge recommended the\ndistrict court deny both motions, and it did so in a single\nsentence order. Landeros then entered into a plea agreement\nthat preserved his right to appeal the denials of the two\nmotions. The district court accepted the agreement and\nsentenced Landeros to 405 days in prison and three years of\nsupervised release.\n\n II.\n\n This case implicates two doctrines, one concerning the\ncircumstances under which law enforcement can prolong a\nstop, and the other governing when law enforcement can\nrequire a person to identify himself.\n\n A.\n\n Rodriguez v. United States held that “[a]n officer . . . may\nconduct certain unrelated checks during an otherwise lawful\ntraffic stop. But . . . he may not do so in a way that prolongs\nthe stop, absent the reasonable suspicion ordinarily\ndemanded to justify detaining an individual.” 135 S. Ct.\n1609, 1615 (2015). In that case, a police officer stopped\nRodriguez for a minor traffic violation. Id. at 1612. The\nofficer collected Rodriguez’s license, registration, and proof\nof insurance, ran a records check on both Rodriguez and a\npassenger, and questioned the passenger about “where [they]\nwere coming from and where they were going.” Id. at 1613.\n\f8 UNITED STATES V. LANDEROS\n\nHe then returned to the vehicle “to issue [a] written warning”\nto Rodriguez for the traffic violation. Id.\n\n Although the reasons for the traffic stop were, at this\npoint, “out of the way,” the officer continued the stop, asking\nRodriguez for permission to walk a dog around the vehicle.\nId. When Rodriguez refused, the officer ordered Rodriguez\nout of the car and called for back-up. Id. Several minutes\nlater, after a deputy sheriff arrived, the officer conducted a\ndog sniff test, which resulted in the discovery of\nmethamphetamines within the car. Id.\n\n Based on the fruits of that search, Rodriguez was\nindicted for possession with intent to distribute. Id. He\nmoved to suppress the evidence on the ground that there was\nno reasonable suspicion of any offense other than the traffic\nviolation, so the stop was unlawfully prolonged by the dog\nsniff. Id. The district court agreed with Rodriguez that the\nofficer lacked reasonable suspicion to extend the stop after\nthe written warning, but determined that the extension was\nnonetheless permissible because of its brevity. Id. at 1613–\n14. The Eighth Circuit affirmed. See United States v.\nRodriguez, 741 F.3d 905, 907–08 (8th Cir. 2014), vacated\nand remanded, 135 S. Ct. 1609.\n\n The Supreme Court vacated the judgment on the basis\nthat law enforcement may not extend a traffic stop with tasks\nunrelated to the traffic mission, absent independent\nreasonable suspicion. Rodriguez, 135 S. Ct. at 1616–17. In\nreaching this conclusion, the Court made clear that it would\nnot have mattered if the police officer conducted the dog\nsniff test before, rather than after, he issued the warning.\nWhat mattered was the added time, not at what point, in the\nchronology of the stop, that time was added. Id.\n\f UNITED STATES V. LANDEROS 9\n\n This court so emphasized in United States v. Evans,\npublished a month after Rodriguez. 786 F.3d 779, 786 (9th\nCir. 2015). There, we held that law enforcement\nimpermissibly extended a traffic stop by running an ex-felon\nregistration check unrelated to traffic safety and unsupported\nby separate reasonable suspicion. Id. “That the ex-felon\nregistration check occurred before . . . the officer issued a\nticket [stemming from the initial traffic violation] is\nimmaterial,” we explained. Id. (brackets, citation, and\ninternal quotation marks omitted). “[R]ather, the critical\nquestion is whether the check prolongs—i.e., adds time to—\nthe stop.” Id. (brackets, citation, and internal quotation\nmarks omitted).\n\n We recognize here, for the first time, that Rodriguez at\nleast partially abrogated this circuit’s previous precedent,\nUnited States v. Turvin, 517 F.3d 1097 (9th Cir. 2008), upon\nwhich the magistrate judge relied and to which the\ngovernment now cites for support. Turvin held that a police\nofficer did not transform a lawful traffic stop into an\nunlawful one when, without reasonable suspicion, he took a\nbreak from writing a traffic citation to ask the driver about a\nmethamphetamine laboratory and obtain the driver’s consent\nto search his truck. Id. at 1098. Turvin concluded that\nbecause “the circumstances surrounding the brief pause here\nwere reasonable,” the extension was permissible despite the\nabsence of reasonable suspicion. Id. at 1101–02.\n\n Rodriguez squarely rejected such a reasonableness\nstandard for determining whether prolonging a traffic stop\nfor reasons not justified by the initial purpose of the stop is\nlawful. 135 S. Ct. at 1616. Instead, Rodriguez requires that a\ntraffic stop may be extended to conduct an investigation into\nmatters other than the original traffic violation only if the\n\f10 UNITED STATES V. LANDEROS\n\nofficers have reasonable suspicion of an independent\noffense. Id.\n\n Dissenting in Turvin, Judge Paez wrote, “Because I do\nnot believe that reasonable suspicion supported [the\nofficer’s] decision to prolong his traffic stop of Turvin, I\nwould affirm the district court’s order granting Turvin’s\nmotion to suppress.” 517 F.3d at 1104 (Paez, J., dissenting).\nJudge Paez’s dissent aligns with the majority in Rodriguez,\nand so highlights the “tension between Turvin, which\npermits slight prolongations to ask unrelated questions, and\nRodriguez, which requires independent, reasonable\nsuspicion if [the additional investigation] adds any time to a\ntraffic stop.” United States v. Cornejo, 196 F. Supp. 3d 1137,\n1151 (E.D. Cal. 2016). As Turvin’s reasonableness standard\ncannot be reconciled with the holding of Rodriguez, Turvin\nis no longer binding precedent. See Miller v. Gammie, 335\nF.3d 889, 893 (9th Cir. 2003) (en banc) (“[W]here the\nreasoning or theory of our prior circuit authority is clearly\nirreconcilable with the reasoning or theory of intervening\nhigher authority, a three-judge panel should consider itself\nbound by the later and controlling authority, and should\nreject the prior circuit opinion as having been effectively\noverruled.”).\n\n Here, the magistrate judge concluded that the extended\nstop was permissible because it was “reasonable,” looking to\nTurvin rather than Rodriguez to guide the inquiry. The\nmagistrate wrote, in relevant part:\n\n “[W]hether questioning unrelated to the\n purpose of the traffic stop and separate from\n the ticket-writing process that prolongs the\n duration of the stop may nonetheless be\n reasonable . . . [upon] examin[ation] [of] the\n\f UNITED STATES V. LANDEROS 11\n\n totality of the circumstances surrounding the\n stop, and [a] determin[ation] whether\n [Officer Baker’s] conduct was reasonable.”\n United States v. Turvin, 517 F.3d 1097, 1101\n (9th Cir. 2008) (internal quotations and\n citations omitted).\n\nThe district court adopted the magistrate judge’s\nrecommendation, and therefore his analysis, without\ncomment or explanation. Because it was based on Turvin and\ndisregarded Rodriguez, the district court’s approval of the\nduration of the stop was premised on legal error.\n\n B.\n\n Applying Rodriguez, we shall assume that Officer Baker\nwas permitted to prolong the initially lawful stop to ask the\ntwo women for identification, because he had reasonable\nsuspicion they were underage. 4 But the several minutes of\nadditional questioning to ascertain Landeros’s identity was\npermissible only if it was (1) part of the stop’s “mission” or\n(2) supported by independent reasonable suspicion. 135\nS. Ct. at 1615.\n\n A demand for a passenger’s identification is not part of\nthe mission of a traffic stop. “When stopping an individual\nfor a minor traffic violation, ‘an officer’s mission includes\nordinary inquiries incident to the traffic stop.’” Evans, 786\nF.3d at 786 (quoting Rodriguez, 135 S. Ct. at 1615). These\ninvolve “checking the driver’s license, determining whether\nthere are outstanding warrants against the driver, and\ninspecting the automobile’s registration and proof of\ninsurance,” and each shares “the same objective as\n\n 4\n We really cannot tell whether the suspicion was reasonable as we\ndo not know what the two women looked like.\n\f12 UNITED STATES V. LANDEROS\n\nenforcement of the traffic code: ensuring that vehicles on the\nroad are operated safely and responsibly.” Rodriguez, 135\nS. Ct. at 1615. The identity of a passenger, however, will\nordinarily have no relation to a driver’s safe operation of a\nvehicle.\n\n Rodriguez also “recognized that ‘an officer may need to\ntake certain negligibly burdensome precautions in order to\ncomplete his mission safely.’” Evans, 786 F.3d at 787\n(quoting Rodriguez, 135 S. Ct. at 1616 (emphasis added by\nEvans court). But knowing Landeros’s name would not have\nmade the officers any safer. Extending the stop, and thereby\nprolonging the officers’ exposure to Landeros, was, if\nanything, “inversely related to officer safety.” Evans, 786\nF.3d at 787.\n\n C.\n\n The officers’ extension of the stop therefore violated the\nFourth Amendment unless supported by independent\nreasonable suspicion. Reasonable suspicion “exists when an\nofficer is aware of specific, articulable facts which, when\nconsidered with objective and reasonable inferences, form a\nbasis for particularized suspicion.” United States v.\nMontero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en\nbanc); see also Evans, 786 F.3d at 788. The government\nargues that Officer Baker had reasonable suspicion of\n“underage drinking and curfew violations” based on “the\nsmell of alcohol and belief that the back seat passengers were\nyounger than eighteen.” An extension of the traffic stop was\nnecessary, the government contends, because Landeros’s\n“own conduct prevented the officers from being able to\ndetermine whether he had committed the offenses of\nunderage drinking or curfew violation.” But, on cross-\nexamination, Officer Baker stated that Landeros did not look\n\f UNITED STATES V. LANDEROS 13\n\n“underage” to him at the time of the stop. Further, Officer\nBaker’s testimony and reports indicate he asked Landeros\nfor identification because it was “standard” procedure, not\nbecause he was concerned about Landeros’s age. Indeed, the\nreports specifically mention that Officer Baker believed the\ntwo women were underage, but make no mention of\nLanderos’s age. As a result, the record does not demonstrate\nthat Officer Baker had a reasonable suspicion that Landeros\nwas out past his curfew or drinking underage. Any extension\nof the traffic stop to investigate those matters was an\nunlawful seizure.\n\n The government also contends that Landeros’s refusal to\nidentify himself “provided reasonable suspicion of the\nadditional offenses of failure to provide identification and\nfailure to comply with law enforcement orders.” Arizona law\nprovides:\n\n It is unlawful for a person, after being advised\n that the person’s refusal to answer is\n unlawful, to fail or refuse to state the person’s\n true full name on request of a peace officer\n who has lawfully detained the person based\n on reasonable suspicion that the person has\n committed, is committing or is about to\n commit a crime.\n\nAriz. Rev. Stat. Ann. § 13-2412(A). By the plain text of the\nstatute, Landeros could not have violated Section 13-2412\nbecause, as already explained, the officers lacked reasonable\nsuspicion, at the time they initially insisted he identify\nhimself, that Landeros had committed, was committing, or\nwas about to commit any crimes, including violating curfew\nor drinking underage.\n\f14 UNITED STATES V. LANDEROS\n\n Additionally, Arizona Law provides that “[a] person\nshall not willfully fail or refuse to comply with any lawful\norder or direction of a police officer invested by law with\nauthority to direct, control or regulate traffic.” Ariz. Rev.\nStat. Ann. § 28-622(A). The question that remains, then, is\nwhether law enforcement could lawfully order Landeros to\nidentify himself, absent reasonable suspicion that he had\ncommitted an offense.\n\n In some circumstances, a suspect may be required to\nrespond to an officer’s request to identify herself, and may\nbe arrested if she does not. Hiibel v. Sixth Judicial District\nCourt upheld a Nevada “stop and identify” statute, similar to\nArizona’s, that permitted law enforcement to detain “any\nperson whom the officer encounters under circumstances\nwhich reasonably indicate that the person has committed, is\ncommitting or is about to commit a crime” so as to ascertain\nthat person’s identity. 542 U.S. 177, 181–82, 185 (2004)\n(quoting Nev. Rev. Stat. § 171.123 (2003)). As\nauthoritatively interpreted by the Nevada Supreme Court,\nthe statute required only that a suspect disclose her name—\nnot produce a driver’s license or any other document. Id. at\n185.\n\n The challenge to Nevada’s law arose out of Hiibel’s\narrest for failing to identify himself to law enforcement. Id.\nat 181. Earlier on the day of the arrest, the local sheriff’s\ndepartment received a report of a man assaulting a woman\nin a truck on a particular road. Id. at 180. When an officer\narrived at that road to investigate, he found a truck matching\nthe reported description, with a man—later identified as\nHiibel—standing outside, and a young woman sitting inside.\nId. at 180–81. The officer explained to the man that he was\ninvestigating a reported fight and repeatedly asked him for\nidentification. Id. The officer warned Hiibel that if he did not\n\f UNITED STATES V. LANDEROS 15\n\nprovide identification, he would be arrested for refusing to\nidentify himself. Id. at 181. Hiibel did not comply, so he was\narrested. Id. The Court determined this application of the\nNevada law permissible, because the request was\n“‘reasonably related in scope to the circumstances which\njustified’ the stop.” Id. at 189 (quoting Terry v. Ohio, 392\nU.S. 1, 20 (1968)). (The Court did not mention that the\nofficer’s request for “identification,” which it understood as\n“a request to produce a driver’s license or some other form\nof written identification,” id. at 181, demanded more than\nstate law required Hiibel to provide.)\n\n In its opinion, the Court distinguished the circumstances\nof Hiibel’s arrest from those of an earlier case, Brown v.\nTexas, 443 U.S. 47 (1979). Brown overturned a conviction\nunder a Texas “stop and identify” law similar to that at issue\nin Hiibel. Id. at 49–50. Unlike Hiibel, Brown was stopped,\ndetained, and interrogated about his identity even though\nthere was no reasonable suspicion that he had committed any\noffense. Id. at 51–52; see also Hiibel, 542 U.S. at 184\n(discussing Brown). Brown held squarely that law\nenforcement may not require a person to furnish\nidentification if not reasonably suspected of any criminal\nconduct. Brown, 443 U.S. at 52–53.\n\n In short, Brown holds that an officer may not lawfully\norder a person to identify herself absent particularized\nsuspicion that she has engaged, is engaging, or is about to\nengage in criminal activity, and Hiibel does not hold to the\ncontrary.\n\n As explained above, the officers insisted several times\nthat Landeros identify himself after he initially refused, and\ndetained him while making those demands. At the time they\ndid so, the officers had no reasonable suspicion that\n\f16 UNITED STATES V. LANDEROS\n\nLanderos had committed an offense. Accordingly, the police\ncould not lawfully order him to identify himself. His\nrepeated refusal to do so thus did not, as the government\nclaims, constitute a failure to comply with an officer’s lawful\norder, Ariz. Rev. Stat. Ann. § 28-622(A). There was\ntherefore no justification for the extension of the detention\nto allow the officers to press Landeros further for his\nidentity.\n\n Evidence obtained as the result of an unconstitutional\nseizure “is ordinarily tainted by the prior illegality and thus\ninadmissible, subject to a few recognized exceptions,” none\nof which the government contends apply in this case. United\nStates v. Gorman, 859 F.3d 706, 716 (9th Cir. 2017) (internal\nquotation marks omitted.) Here, “the challenged evidence\n. . . is unquestionably the product of the illegal governmental\nactivity—i.e., the wrongful detention.’” New York v. Harris,\n495 U.S. 14, 19 (1990) (internal quotation marks and\nbrackets omitted). The officers discovered the bullets\nLanderos was convicted of possessing only because he was\nordered from the car as part of the unlawfully extended\nseizure and subsequently consented to a search of his\npockets. As a result, the evidence cannot be introduced at\ntrial.\n\n The government repeatedly notes that this court’s\nprecedent permits police to “ask people [including\npassengers in cars] who have legitimately been stopped for\nidentification without conducting a Fourth Amendment\nsearch or seizure.” United States v. Diaz-Castaneda, 494\nF.3d 1146, 1152 (9th Cir. 2007) (emphasis added). But we\nneed not resolve whether that precedent remains valid after\nRodriguez. Regardless of whether the first request for\nLanderos’s identification was lawful, law enforcement’s\n\f UNITED STATES V. LANDEROS 17\n\nrefusal to take “no” for an answer was not. Diaz-Castaneda\ndoes not suggest otherwise.\n\n Landeros also refused to comply with the officers’\ncommands to leave the car. Police officers may order a\nsuspect out of a car during a traffic stop. Pennsylvania v.\nMimms, 434 U.S. 106, 111 (1977). The Supreme Court has\nextended that rule to passengers detained during a lawful\nstop. Maryland v. Wilson, 519 U.S. 408 (1997). But here, the\nstop was no longer lawful by the time the officers ordered\nLanderos to leave the car, as it had extended longer than\njustified by either the suspected traffic violation or any\noffense as to which there was independent reasonable\nsuspicion. See Rodriguez, 135 S. Ct. at 1616. As Officer\nBaker had, before Landeros was ordered from the car,\nimpermissibly extended the stop based on Landeros’s refusal\nto identify himself, the validity or not of the exit order\nstanding alone does not matter.\n\n III.\n\n For the foregoing reasons, we REVERSE the district\ncourt’s denial of Landeros’s motion to suppress.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358145/", "author_raw": "BERZON, Circuit Judge:"}]}	MARSHA S BERZON	JOHNNIE B RAWLINSON	PAUL J WATFORD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580892/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Alfredo Landeros\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-10217\n Plaintiff-Appellee,\n D.C. No.\n v. 4:16-cr-00855-\n RCC-BGM-1\nALFREDO ENOS LANDEROS,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Raner C. Collins, District Judge, Presiding\n\n Argued and Submitted September 12, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Marsha S. Berzon, Johnnie B. Rawlinson, and\n Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Berzon\n\f2 UNITED STATES V. LANDEROS\n\n SUMMARY \n\n\n Criminal Law\n\n Reversing the district court’s denial of a motion to\nsuppress evidence obtained as a result of a traffic stop, the\npanel held that law enforcement officers may not extend a\nlawfully initiated vehicle stop because a passenger refuses to\nidentify himself, absent reasonable suspicion that the\nindividual has committed a criminal offense.\n\n The panel recognized that Rodriguez v. United States,\n135 S. Ct. 1609 (2015) (holding that an officer may conduct\ncertain unrelated checks during an otherwise lawful traffic\nstop but may not do so in a way that prolongs the stop, absent\nthe reasonable suspicion ordinarily demanded to justify\ndetaining an individual), at least partially abrogated United\nStates v. Turvin, 517 F.3d 1097 (9th Cir. 2008) (holding that\nan officer did not transform a lawful traffic stop into an\nunlawful one when, without reasonable suspicion, he took a\nbreak from writing a traffic citation to ask the driver about a\nmethamphetamine laboratory and obtain the driver’s consent\nto search the his truck). The panel held that because the\ndistrict court’s approval of the duration of the stop in this\ncase was based on Turvin and disregarded Rodriguez, it was\npremised on legal error.\n\n Observing that the record does not demonstrate that the\nofficer had a reasonable suspicion that the defendant was out\npast his curfew or drinking underage, the panel held that any\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. LANDEROS 3\n\nextension of the traffic stop to investigate those matters was\nan unlawful seizure.\n\n Based on the plain text of Ariz. Rev. Stat. Ann. § 13-\n2412(A), the panel rejected the government’s contention that\nthe defendant’s refusal to identify himself provided\nreasonable suspicion of the additional offenses of failure to\nprovide identification and failure to comply with law\nenforcement orders.\n\n Because the police could not lawfully order the\ndefendant to identify himself, the panel explained that the\ndefendant’s repeated refusal to do so did not constitute a\nfailure to comply with an officer’s lawful order under Ariz.\nRev. Stat. Ann. § 28-622(A). The panel concluded that there\nwas therefore no justification for the extension of the\ndetention to allow the officers to press the defendant further\nfor his identity.\n\n The panel held that the bullets the defendant was\nconvicted of possessing, only because he was ordered from\nthe car as part of the unlawfully extended seizure and\nsubsequently consented to a search of his pockets, cannot be\nintroduced at trial. The panel wrote that because the stop\nwas no longer lawful by the time the officers ordered the\ndefendant to leave the car, the validity or not of the exit order\ndoes not matter.\n\n The panel addressed in a concurrently filed\nmemorandum disposition the defendant’s challenge to the\ndistrict court’s denial of his motion to dismiss the\nindictment.\n\f4 UNITED STATES V. LANDEROS\n\n COUNSEL\n\nLee Tucker (argued), Assistant Federal Defender; Jon M.\nSands, Federal Defender; Federal Public Defender’s Office,\nTucson, Arizona; for Defendant-Appellant.\n\nCharisse Arce (argued) and Angela W. Woolridge, Assistant\nUnited States Attorneys; Elizabeth A. Strange, First\nAssistant United States Attorney; Robert L. Miskell,\nAppellate Chief; United States Attorney’s Office, Tucson,\nArizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nBERZON, Circuit Judge:\n\n Our question is whether law enforcement officers may\nextend a lawfully initiated vehicle stop because a passenger\nrefuses to identify himself, absent reasonable suspicion that\nthe individual has committed a criminal offense. We\nconclude that they may not do so. As a result, we reverse. 1\n\n I.\n\n Early in the morning of February 9, 2016, police officer\nClinton Baker pulled over a car driving 11 miles over the\nspeed limit. The stop occurred on a road near the Pascua\nYaqui Indian reservation. Alfredo Landeros sat in the front\npassenger seat next to the driver. Two young women were in\n\n\n 1\n Appellant also challenges the district court’s denial of his motion\nto dismiss the indictment based on alleged police abuses after his arrest.\nWe address that challenge in a concurrently filed memorandum\ndisposition.\n\f UNITED STATES V. LANDEROS 5\n\nthe back seat. The driver apologized to Officer Baker for\nspeeding and provided identification.\n\n Officer Baker wrote in his incident report and testified\nthat he smelled alcohol in the car. The two women in the\nbackseat appeared to him to be minors, and therefore subject\nto both the underage drinking laws and the 10:00 p.m.\nPascua Yaqui curfew. 2 According to the two women’s\ntestimony, Officer Baker requested their identification and\nexplained that he was asking because they looked younger\nthan 18 years old “and it was past a curfew.” The two\nwomen—who were 21 and 19 years old—complied.\n\n As he stated at the suppression hearing, Officer Baker\ndid not believe that Landeros was underage, and he was not.\nNonetheless, Officer Baker, in his own words,\n“commanded” Landeros to provide identification. Later,\nOfficer Baker explained it was “standard for [law\nenforcement] to identify everybody in the vehicle.”\nLanderos refused to identify himself, and informed Officer\nBaker—correctly, as we shall explain—that he was not\nrequired to do so. Officer Baker then repeated his “demand[]\nto see [Landeros’s] ID.” Landeros again refused. As a result,\nOfficer Baker called for back-up, prolonging the stop.\nOfficer Frank Romero then arrived, and he too asked for\nLanderos’s identification. The two officers also repeatedly\n“commanded” Landeros to exit the car because he was not\nbeing “compliant.”\n\n Landeros eventually did leave the car. At least several\nminutes passed between Officer Baker’s initial request for\n\n\n 2\n Officer Baker is a police officer with the Pascua Yaqui Police\nDepartment who has authority to enforce both the Pascua Yaqui tribal\ncode and Arizona state laws.\n\f6 UNITED STATES V. LANDEROS\n\nLanderos’s identification and his exit from the car, although\nthe record does not reflect the exact length of time.\n\n Officer Baker testified that, as Landeros exited the car,\nhe saw for the first time pocketknives, a machete, and two\nopen beer bottles on the floorboards by the front passenger\nseat. Arizona prohibits open containers of alcohol in cars on\npublic highways, Ariz. Rev. Stat. Ann. § 4-251. Officer\nBaker then placed Landeros under arrest. Consistent with\nOfficer Baker’s testimony, the government represented in its\ndistrict court briefing that Landeros was arrested both for\npossessing an open container 3 and for “failure to provide his\ntrue full name and refusal to comply with directions of police\nofficers.” See Ariz. Rev. Stat. Ann. § 13-2412(A) (“It is\nunlawful for a person, after being advised that the person’s\nrefusal to answer is unlawful, to fail or refuse to state the\nperson’s true full name on request of a peace officer who has\nlawfully detained the person based on reasonable suspicion\nthat the person has committed, is committing or is about to\ncommit a crime.”); id. § 28-622(A) (“A person shall not\nwillfully fail or refuse to comply with any lawful order or\ndirection of a police officer invested by law with authority\nto direct, control or regulate traffic.”).\n\n The officers handcuffed Landeros as soon as he exited\nthe car. Officer Romero asked Landeros if he had any\nweapons; Landeros confirmed that he had a knife in a\npocket. Officer Romero requested consent to search\nLanderos’s pockets, and Landeros agreed. During that\n\n\n\n 3\n We do not reach the question whether, if the seizure were otherwise\nlawful, law enforcement could have lawfully detained and arrested\nLanderos based on the open container of alcohol seen where he had been\nsitting. He was never charged with that offense.\n\f UNITED STATES V. LANDEROS 7\n\nsearch, Officer Romero found a smoking pipe and six bullets\nin Landeros’s pockets.\n\n Two and a half months later, Landeros was indicted for\npossession of ammunition by a convicted felon, 18 U.S.C.\n§§ 922(g)(1), 924(a)(2). He moved to suppress the evidence\nbased on the circumstances of the stop, and also to dismiss\nthe indictment based on alleged abuse by the police officers\nafter the search. The magistrate judge recommended the\ndistrict court deny both motions, and it did so in a single\nsentence order. Landeros then entered into a plea agreement\nthat preserved his right to appeal the denials of the two\nmotions. The district court accepted the agreement and\nsentenced Landeros to 405 days in prison and three years of\nsupervised release.\n\n II.\n\n This case implicates two doctrines, one concerning the\ncircumstances under which law enforcement can prolong a\nstop, and the other governing when law enforcement can\nrequire a person to identify himself.\n\n A.\n\n Rodriguez v. United States held that “[a]n officer . . . may\nconduct certain unrelated checks during an otherwise lawful\ntraffic stop. But . . . he may not do so in a way that prolongs\nthe stop, absent the reasonable suspicion ordinarily\ndemanded to justify detaining an individual.” 135 S. Ct.\n1609, 1615 (2015). In that case, a police officer stopped\nRodriguez for a minor traffic violation. Id. at 1612. The\nofficer collected Rodriguez’s license, registration, and proof\nof insurance, ran a records check on both Rodriguez and a\npassenger, and questioned the passenger about “where [they]\nwere coming from and where they were going.” Id. at 1613.\n\f8 UNITED STATES V. LANDEROS\n\nHe then returned to the vehicle “to issue [a] written warning”\nto Rodriguez for the traffic violation. Id.\n\n Although the reasons for the traffic stop were, at this\npoint, “out of the way,” the officer continued the stop, asking\nRodriguez for permission to walk a dog around the vehicle.\nId. When Rodriguez refused, the officer ordered Rodriguez\nout of the car and called for back-up. Id. Several minutes\nlater, after a deputy sheriff arrived, the officer conducted a\ndog sniff test, which resulted in the discovery of\nmethamphetamines within the car. Id.\n\n Based on the fruits of that search, Rodriguez was\nindicted for possession with intent to distribute. Id. He\nmoved to suppress the evidence on the ground that there was\nno reasonable suspicion of any offense other than the traffic\nviolation, so the stop was unlawfully prolonged by the dog\nsniff. Id. The district court agreed with Rodriguez that the\nofficer lacked reasonable suspicion to extend the stop after\nthe written warning, but determined that the extension was\nnonetheless permissible because of its brevity. Id. at 1613–\n14. The Eighth Circuit affirmed. See United States v.\nRodriguez, 741 F.3d 905, 907–08 (8th Cir. 2014), vacated\nand remanded, 135 S. Ct. 1609.\n\n The Supreme Court vacated the judgment on the basis\nthat law enforcement may not extend a traffic stop with tasks\nunrelated to the traffic mission, absent independent\nreasonable suspicion. Rodriguez, 135 S. Ct. at 1616–17. In\nreaching this conclusion, the Court made clear that it would\nnot have mattered if the police officer conducted the dog\nsniff test before, rather than after, he issued the warning.\nWhat mattered was the added time, not at what point, in the\nchronology of the stop, that time was added. Id.\n\f UNITED STATES V. LANDEROS 9\n\n This court so emphasized in United States v. Evans,\npublished a month after Rodriguez. 786 F.3d 779, 786 (9th\nCir. 2015). There, we held that law enforcement\nimpermissibly extended a traffic stop by running an ex-felon\nregistration check unrelated to traffic safety and unsupported\nby separate reasonable suspicion. Id. “That the ex-felon\nregistration check occurred before . . . the officer issued a\nticket [stemming from the initial traffic violation] is\nimmaterial,” we explained. Id. (brackets, citation, and\ninternal quotation marks omitted). “[R]ather, the critical\nquestion is whether the check prolongs—i.e., adds time to—\nthe stop.” Id. (brackets, citation, and internal quotation\nmarks omitted).\n\n We recognize here, for the first time, that Rodriguez at\nleast partially abrogated this circuit’s previous precedent,\nUnited States v. Turvin, 517 F.3d 1097 (9th Cir. 2008), upon\nwhich the magistrate judge relied and to which the\ngovernment now cites for support. Turvin held that a police\nofficer did not transform a lawful traffic stop into an\nunlawful one when, without reasonable suspicion, he took a\nbreak from writing a traffic citation to ask the driver about a\nmethamphetamine laboratory and obtain the driver’s consent\nto search his truck. Id. at 1098. Turvin concluded that\nbecause “the circumstances surrounding the brief pause here\nwere reasonable,” the extension was permissible despite the\nabsence of reasonable suspicion. Id. at 1101–02.\n\n Rodriguez squarely rejected such a reasonableness\nstandard for determining whether prolonging a traffic stop\nfor reasons not justified by the initial purpose of the stop is\nlawful. 135 S. Ct. at 1616. Instead, Rodriguez requires that a\ntraffic stop may be extended to conduct an investigation into\nmatters other than the original traffic violation only if the\n\f10 UNITED STATES V. LANDEROS\n\nofficers have reasonable suspicion of an independent\noffense. Id.\n\n Dissenting in Turvin, Judge Paez wrote, “Because I do\nnot believe that reasonable suspicion supported [the\nofficer’s] decision to prolong his traffic stop of Turvin, I\nwould affirm the district court’s order granting Turvin’s\nmotion to suppress.” 517 F.3d at 1104 (Paez, J., dissenting).\nJudge Paez’s dissent aligns with the majority in Rodriguez,\nand so highlights the “tension between Turvin, which\npermits slight prolongations to ask unrelated questions, and\nRodriguez, which requires independent, reasonable\nsuspicion if [the additional investigation] adds any time to a\ntraffic stop.” United States v. Cornejo, 196 F. Supp. 3d 1137,\n1151 (E.D. Cal. 2016). As Turvin’s reasonableness standard\ncannot be reconciled with the holding of Rodriguez, Turvin\nis no longer binding precedent. See Miller v. Gammie, 335\nF.3d 889, 893 (9th Cir. 2003) (en banc) (“[W]here the\nreasoning or theory of our prior circuit authority is clearly\nirreconcilable with the reasoning or theory of intervening\nhigher authority, a three-judge panel should consider itself\nbound by the later and controlling authority, and should\nreject the prior circuit opinion as having been effectively\noverruled.”).\n\n Here, the magistrate judge concluded that the extended\nstop was permissible because it was “reasonable,” looking to\nTurvin rather than Rodriguez to guide the inquiry. The\nmagistrate wrote, in relevant part:\n\n “[W]hether questioning unrelated to the\n purpose of the traffic stop and separate from\n the ticket-writing process that prolongs the\n duration of the stop may nonetheless be\n reasonable . . . [upon] examin[ation] [of] the\n\f UNITED STATES V. LANDEROS 11\n\n totality of the circumstances surrounding the\n stop, and [a] determin[ation] whether\n [Officer Baker’s] conduct was reasonable.”\n United States v. Turvin, 517 F.3d 1097, 1101\n (9th Cir. 2008) (internal quotations and\n citations omitted).\n\nThe district court adopted the magistrate judge’s\nrecommendation, and therefore his analysis, without\ncomment or explanation. Because it was based on Turvin and\ndisregarded Rodriguez, the district court’s approval of the\nduration of the stop was premised on legal error.\n\n B.\n\n Applying Rodriguez, we shall assume that Officer Baker\nwas permitted to prolong the initially lawful stop to ask the\ntwo women for identification, because he had reasonable\nsuspicion they were underage. 4 But the several minutes of\nadditional questioning to ascertain Landeros’s identity was\npermissible only if it was (1) part of the stop’s “mission” or\n(2) supported by independent reasonable suspicion. 135\nS. Ct. at 1615.\n\n A demand for a passenger’s identification is not part of\nthe mission of a traffic stop. “When stopping an individual\nfor a minor traffic violation, ‘an officer’s mission includes\nordinary inquiries incident to the traffic stop.’” Evans, 786\nF.3d at 786 (quoting Rodriguez, 135 S. Ct. at 1615). These\ninvolve “checking the driver’s license, determining whether\nthere are outstanding warrants against the driver, and\ninspecting the automobile’s registration and proof of\ninsurance,” and each shares “the same objective as\n\n 4\n We really cannot tell whether the suspicion was reasonable as we\ndo not know what the two women looked like.\n\f12 UNITED STATES V. LANDEROS\n\nenforcement of the traffic code: ensuring that vehicles on the\nroad are operated safely and responsibly.” Rodriguez, 135\nS. Ct. at 1615. The identity of a passenger, however, will\nordinarily have no relation to a driver’s safe operation of a\nvehicle.\n\n Rodriguez also “recognized that ‘an officer may need to\ntake certain negligibly burdensome precautions in order to\ncomplete his mission safely.’” Evans, 786 F.3d at 787\n(quoting Rodriguez, 135 S. Ct. at 1616 (emphasis added by\nEvans court). But knowing Landeros’s name would not have\nmade the officers any safer. Extending the stop, and thereby\nprolonging the officers’ exposure to Landeros, was, if\nanything, “inversely related to officer safety.” Evans, 786\nF.3d at 787.\n\n C.\n\n The officers’ extension of the stop therefore violated the\nFourth Amendment unless supported by independent\nreasonable suspicion. Reasonable suspicion “exists when an\nofficer is aware of specific, articulable facts which, when\nconsidered with objective and reasonable inferences, form a\nbasis for particularized suspicion.” United States v.\nMontero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en\nbanc); see also Evans, 786 F.3d at 788. The government\nargues that Officer Baker had reasonable suspicion of\n“underage drinking and curfew violations” based on “the\nsmell of alcohol and belief that the back seat passengers were\nyounger than eighteen.” An extension of the traffic stop was\nnecessary, the government contends, because Landeros’s\n“own conduct prevented the officers from being able to\ndetermine whether he had committed the offenses of\nunderage drinking or curfew violation.” But, on cross-\nexamination, Officer Baker stated that Landeros did not look\n\f UNITED STATES V. LANDEROS 13\n\n“underage” to him at the time of the stop. Further, Officer\nBaker’s testimony and reports indicate he asked Landeros\nfor identification because it was “standard” procedure, not\nbecause he was concerned about Landeros’s age. Indeed, the\nreports specifically mention that Officer Baker believed the\ntwo women were underage, but make no mention of\nLanderos’s age. As a result, the record does not demonstrate\nthat Officer Baker had a reasonable suspicion that Landeros\nwas out past his curfew or drinking underage. Any extension\nof the traffic stop to investigate those matters was an\nunlawful seizure.\n\n The government also contends that Landeros’s refusal to\nidentify himself “provided reasonable suspicion of the\nadditional offenses of failure to provide identification and\nfailure to comply with law enforcement orders.” Arizona law\nprovides:\n\n It is unlawful for a person, after being advised\n that the person’s refusal to answer is\n unlawful, to fail or refuse to state the person’s\n true full name on request of a peace officer\n who has lawfully detained the person based\n on reasonable suspicion that the person has\n committed, is committing or is about to\n commit a crime.\n\nAriz. Rev. Stat. Ann. § 13-2412(A). By the plain text of the\nstatute, Landeros could not have violated Section 13-2412\nbecause, as already explained, the officers lacked reasonable\nsuspicion, at the time they initially insisted he identify\nhimself, that Landeros had committed, was committing, or\nwas about to commit any crimes, including violating curfew\nor drinking underage.\n\f14 UNITED STATES V. LANDEROS\n\n Additionally, Arizona Law provides that “[a] person\nshall not willfully fail or refuse to comply with any lawful\norder or direction of a police officer invested by law with\nauthority to direct, control or regulate traffic.” Ariz. Rev.\nStat. Ann. § 28-622(A). The question that remains, then, is\nwhether law enforcement could lawfully order Landeros to\nidentify himself, absent reasonable suspicion that he had\ncommitted an offense.\n\n In some circumstances, a suspect may be required to\nrespond to an officer’s request to identify herself, and may\nbe arrested if she does not. Hiibel v. Sixth Judicial District\nCourt upheld a Nevada “stop and identify” statute, similar to\nArizona’s, that permitted law enforcement to detain “any\nperson whom the officer encounters under circumstances\nwhich reasonably indicate that the person has committed, is\ncommitting or is about to commit a crime” so as to ascertain\nthat person’s identity. 542 U.S. 177, 181–82, 185 (2004)\n(quoting Nev. Rev. Stat. § 171.123 (2003)). As\nauthoritatively interpreted by the Nevada Supreme Court,\nthe statute required only that a suspect disclose her name—\nnot produce a driver’s license or any other document. Id. at\n185.\n\n The challenge to Nevada’s law arose out of Hiibel’s\narrest for failing to identify himself to law enforcement. Id.\nat 181. Earlier on the day of the arrest, the local sheriff’s\ndepartment received a report of a man assaulting a woman\nin a truck on a particular road. Id. at 180. When an officer\narrived at that road to investigate, he found a truck matching\nthe reported description, with a man—later identified as\nHiibel—standing outside, and a young woman sitting inside.\nId. at 180–81. The officer explained to the man that he was\ninvestigating a reported fight and repeatedly asked him for\nidentification. Id. The officer warned Hiibel that if he did not\n\f UNITED STATES V. LANDEROS 15\n\nprovide identification, he would be arrested for refusing to\nidentify himself. Id. at 181. Hiibel did not comply, so he was\narrested. Id. The Court determined this application of the\nNevada law permissible, because the request was\n“‘reasonably related in scope to the circumstances which\njustified’ the stop.” Id. at 189 (quoting Terry v. Ohio, 392\nU.S. 1, 20 (1968)). (The Court did not mention that the\nofficer’s request for “identification,” which it understood as\n“a request to produce a driver’s license or some other form\nof written identification,” id. at 181, demanded more than\nstate law required Hiibel to provide.)\n\n In its opinion, the Court distinguished the circumstances\nof Hiibel’s arrest from those of an earlier case, Brown v.\nTexas, 443 U.S. 47 (1979). Brown overturned a conviction\nunder a Texas “stop and identify” law similar to that at issue\nin Hiibel. Id. at 49–50. Unlike Hiibel, Brown was stopped,\ndetained, and interrogated about his identity even though\nthere was no reasonable suspicion that he had committed any\noffense. Id. at 51–52; see also Hiibel, 542 U.S. at 184\n(discussing Brown). Brown held squarely that law\nenforcement may not require a person to furnish\nidentification if not reasonably suspected of any criminal\nconduct. Brown, 443 U.S. at 52–53.\n\n In short, Brown holds that an officer may not lawfully\norder a person to identify herself absent particularized\nsuspicion that she has engaged, is engaging, or is about to\nengage in criminal activity, and Hiibel does not hold to the\ncontrary.\n\n As explained above, the officers insisted several times\nthat Landeros identify himself after he initially refused, and\ndetained him while making those demands. At the time they\ndid so, the officers had no reasonable suspicion that\n\f16 UNITED STATES V. LANDEROS\n\nLanderos had committed an offense. Accordingly, the police\ncould not lawfully order him to identify himself. His\nrepeated refusal to do so thus did not, as the government\nclaims, constitute a failure to comply with an officer’s lawful\norder, Ariz. Rev. Stat. Ann. § 28-622(A). There was\ntherefore no justification for the extension of the detention\nto allow the officers to press Landeros further for his\nidentity.\n\n Evidence obtained as the result of an unconstitutional\nseizure “is ordinarily tainted by the prior illegality and thus\ninadmissible, subject to a few recognized exceptions,” none\nof which the government contends apply in this case. United\nStates v. Gorman, 859 F.3d 706, 716 (9th Cir. 2017) (internal\nquotation marks omitted.) Here, “the challenged evidence\n. . . is unquestionably the product of the illegal governmental\nactivity—i.e., the wrongful detention.’” New York v. Harris,\n495 U.S. 14, 19 (1990) (internal quotation marks and\nbrackets omitted). The officers discovered the bullets\nLanderos was convicted of possessing only because he was\nordered from the car as part of the unlawfully extended\nseizure and subsequently consented to a search of his\npockets. As a result, the evidence cannot be introduced at\ntrial.\n\n The government repeatedly notes that this court’s\nprecedent permits police to “ask people [including\npassengers in cars] who have legitimately been stopped for\nidentification without conducting a Fourth Amendment\nsearch or seizure.” United States v. Diaz-Castaneda, 494\nF.3d 1146, 1152 (9th Cir. 2007) (emphasis added). But we\nneed not resolve whether that precedent remains valid after\nRodriguez. Regardless of whether the first request for\nLanderos’s identification was lawful, law enforcement’s\n\f UNITED STATES V. LANDEROS 17\n\nrefusal to take “no” for an answer was not. Diaz-Castaneda\ndoes not suggest otherwise.\n\n Landeros also refused to comply with the officers’\ncommands to leave the car. Police officers may order a\nsuspect out of a car during a traffic stop. Pennsylvania v.\nMimms, 434 U.S. 106, 111 (1977). The Supreme Court has\nextended that rule to passengers detained during a lawful\nstop. Maryland v. Wilson, 519 U.S. 408 (1997). But here, the\nstop was no longer lawful by the time the officers ordered\nLanderos to leave the car, as it had extended longer than\njustified by either the suspected traffic violation or any\noffense as to which there was independent reasonable\nsuspicion. See Rodriguez, 135 S. Ct. at 1616. As Officer\nBaker had, before Landeros was ordered from the car,\nimpermissibly extended the stop based on Landeros’s refusal\nto identify himself, the validity or not of the exit order\nstanding alone does not matter.\n\n III.\n\n For the foregoing reasons, we REVERSE the district\ncourt’s denial of Landeros’s motion to suppress.\n[END_CASE]", "role": "user" } ]
4,580,893		Maurice Olivier v. Leroy Baca	2019-01-11	13-56371	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and David A. Ezra,* District Judge.", "parties": "", "opinions": [{"author": "CALLAHAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MAURICE P. OLIVIER, AKA Maurice No. 13-56371\n Pierre Olivier,\n Plaintiff-Appellant, D.C. No.\n 2:08-cv-07169-\n v. JFW-AGR\n\n LEROY D. BACA, Los Angeles\n County Sheriff of Custody OPINION\n Operations,\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the Central District of California\n John F. Walter, District Judge, Presiding\n\n Argued and Submitted August 10, 2018\n Pasadena, California\n\n Filed January 11, 2019\n\nBefore: Consuelo M. Callahan and Jacqueline H. Nguyen,\n Circuit Judges, and David A. Ezra,* District Judge.\n\n Opinion by Judge Callahan\n\n\n \n The Honorable David A. Ezra, United States District Judge for the\nDistrict of Hawaii, sitting by designation.\n\f2 OLIVIER V. BACA\n\n SUMMARY\n\n\n Prisoner Civil Rights\n\n The panel affirmed the district court’s summary judgment\nin favor of defendant Sheriff Baca in a 42 U.S.C. § 1983\naction alleging that Baca violated plaintiff’s Fourteenth\nAmendment rights by failing to provide him with a bed\nduring his three-and-a-half day stay at the Los Angeles\nInmate Reception Center while he was a pretrial detainee.\n\n The panel held that the Los Angeles Sheriff’s Department\nwas well within the scope of its authority to maintain security\nwhen it carried out the lockdowns that delayed plaintiff’s\ntransfer to permanent housing, resulting in three-and-a-half\ndays without a bed. The panel held that, in view of the\ndeference the Supreme Court has prescribed in the area of\ncorrectional facility policy, along with Baca’s clarifications\nof the rationale underlying Department procedures, there\nwas no basis in the record on which to conclude that the\nresponse to the inmate disturbances constituted an\nunnecessary or unjustified response to problems of jail\nsecurity.\n\n The panel further held that even if a Fourteenth\nAmendment violation did occur, the district court correctly\nheld that Baca was entitled to qualified immunity because the\nright asserted by plaintiff—not being forced to sleep on the\nfloor during a jail lockdown—was not clearly established at\nthe time of the events.\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f OLIVIER V. BACA 3\n\n COUNSEL\n\nR. Chris Lim (argued), Los Feliz Law APC, Los Angeles,\nCalifornia, for Plaintiff-Appellant.\n\nJonathan Carl Magno (argued), Daniel Lee, and Paul B.\nBeach, Lawrence Beach Allen & Choi PC, Glendale,\nCalifornia, for Defendant-Appellee.\n\n\n OPINION\n\nCALLAHAN, Circuit Judge:\n\n On the night of July 12, 2006, Plaintiff-Appellant Maurice\nOlivier (“Olivier”) was arrested and taken to the Los Angeles\nCounty Inmate Reception Center (“IRC”) for processing into\npermanent housing. Due to a series of disturbances by\ninmates and lockdowns throughout the Los Angeles County\njail system, Olivier was not transferred to permanent housing\nuntil the afternoon of July 16, 2006. Olivier brought an\naction under 42 U.S.C. § 1983 against Defendant-Appellee\nSheriff Leroy Baca (“Baca”) in Baca’s official and individual\ncapacities, alleging that Baca violated his Fourteenth\nAmendment rights by failing to provide him with a bed\nduring his three-and-a-half day stay at the IRC. The district\ncourt granted summary judgment in Baca’s favor, holding\nthat Olivier had not raised a genuine issue of material fact as\nto whether disturbances by inmates and lockdowns\nconstituted exigent circumstances justifying the floor\nsleeping. Olivier appeals. We affirm and hold that the\nexigent circumstance of inmate disturbances and lockdowns\njustified denying Olivier a bed for his three-and-a-half day\nstay at the IRC.\n\f4 OLIVIER V. BACA\n\n I. FACTUAL AND PROCEDURAL BACKGROUND\n\n A.\n\n On May 25, 2006, Olivier was arrested by the Los\nAngeles Police Department for burglary. He was processed\ninto permanent housing at Los Angeles Men’s Central Jail\n(“MCJ”) but erroneously released on July 7, 2006. On July\n12, 2006, the Los Angeles County Sheriff’s Department\n(“LASD”) located and again arrested Olivier. At 9:56 p.m.,\nhe arrived at the IRC for processing into the county jail\nsystem.1\n\n Upon Olivier’s arrival at the IRC, he was determined to\nhave health issues. Consequently, Olivier was sent to the\nmedical screening area of the IRC where he waited on a\nbench for an examination, along with around 100 other\npeople.\n\n LASD officials determined that Olivier could be properly\nhoused only at MCJ in light of his medical needs, his\nclassification as a non-high risk inmate without mental\n\n\n\n\n 1\n The IRC serves as a hub for processing incoming and outgoing\ninmates in the jail system. The process occurs in three stages:\n(1) “booking front,” which involves an initial interview, screening, and\nphotograph; (2) “class rear,” which involves medical screening,\nfingerprinting and housing classification; and (3) “custody line,” where\ninmates are fed, provided medication if applicable, and picked up by\npersonnel from the housing facility to which they are assigned. On\naverage, more than 300 inmates are processed daily at the IRC.\n\f OLIVIER V. BACA 5\n\nillness, and the proximity of MCJ to the venue of his\nunderlying criminal case.2\n\n While Olivier was being processed at the IRC for transfer\nto MCJ, inmates at jail facilities across Los Angeles County\nrepeatedly divided themselves along racial lines and fought.\nThis string of inmate disturbances persisted for approximately\nthree days and necessitated lockdowns at multiple facilities,\nwhich, in turn, delayed processing at the IRC. LASD logs\nand declarations from LASD personnel provide accounts of\nthe disturbances.3\n\n\n\n\n 2\n In 2006, the LASD operated three housing facilities for male\ninmates within the Los Angeles County jail system: MCJ, Twin Towers\nCorrectional Facility, and Pitchess Detention Center. Twin Towers\nhoused exclusively inmates with high security risk classifications, inmates\nsuffering from severe mental illness, and sexually violent inmates.\nPitchess did not have medical services that would have accommodated\nOlivier’s claimed medical condition. Additionally, Pitchess is located\nmore than forty-five miles by road from the venue where Olivier’s\ncriminal case was scheduled. MCJ was thus the only suitable permanent\nhousing for Olivier.\n 3\n On July 13, 2006, at 8:30 a.m., the IRC class rear was closed due to\ninmate fighting, causing inmate processing at the IRC to stop. On July 13\nat 4:30 p.m., approximately 100 IRC custody line inmates could not be\ntransferred due to inmate disturbances at Pitchess Detention Center. On\nJuly 13, Twin Towers was placed on full lockdown. From 11:15 p.m. on\nJuly 13 until 1:20 a.m. on July 14, inmate rioting occurred at the MCJ. On\nJuly 14, the MCJ remained on full lockdown from 2:05 p.m. to 8:09 p.m.\nFrom July 14 at 10:45 p.m. into the following days, the IRC’s class rear\nand custody line were placed on lockdown. On July 15 at 9:30 a.m., and\nagain at 6:00 p.m., the IRC booking front was on lockdown. On July 15,\nMCJ was on lockdown until late in the day. On July 16, Twin Towers was\non lockdown from 6:00 a.m. to 9:00 a.m.\n\f6 OLIVIER V. BACA\n\n Olivier remained at the IRC for the duration of the inmate\ndisturbances, lockdowns, and post-lockdown procedures\nbefore being transferred to MCJ on July 16. In total, Olivier\nwas held at the IRC for approximately three-and-a-half days.\nOlivier testified that although there were benches in the cell\nwhere he was held, there was inadequate space to\naccommodate the number of detainees at the IRC. Olivier\ntestified that no one slept on the benches because trying to do\nso would have led to a fight. As a result, Olivier slept on the\nfloor during his time at the IRC. Olivier testified that he\nnever asked for “a mattress, blankets, or any other sort of\npadding.”\n\n After the lockdowns began on July 13, the first time\ninmates were picked up from the IRC custody line was on\nJuly 16 around 2:00 a.m. Olivier was transferred to the MCJ\nat 1:14 p.m. on July 16.\n\n B.\n\n On October 30, 2008, Olivier filed a complaint in district\ncourt alleging civil rights violations related to both his\nextended stay at the IRC and events that occurred after he\nwas transferred to MCJ.4 The district court dismissed certain\naspects of Olivier’s original claims, and Olivier amended his\ncomplaint several times. By the time the case reached the\nsummary judgment stage, the only remaining claim relevant\nto this appeal was a Fourteenth Amendment claim against\n\n\n 4\n Olivier’s claims relating to his experiences at MCJ were dismissed,\naside from a Fourteenth Amendment claim regarding exposure to lice in\nhis jail cell. The complaint also named a number of defendants in addition\nto Baca. On July 10, 2010, the district court dismissed all defendants\nexcept Baca.\n\f OLIVIER V. BACA 7\n\nBaca in his official and individual capacities regarding\nOlivier’s being forced to sleep on the floor at the medical\nintake area of the IRC.\n\n Baca filed a motion for summary judgment. After the\nmagistrate judge recommended denying the motion for lack\nof evidence that exigent circumstances existed, the district\ncourt gave Baca an opportunity to supplement the record.\nBaca then submitted additional declarations by LASD\nofficials. In 2013, the Operations Deputy at the IRC\nexplained that in response to such disturbances a large\nproportion of jail staff must work to restore order. Jail\npersonnel who do not respond to the disturbances and remain\nin other areas of the facility are, therefore, likely to be\nsignificantly outnumbered by inmates. Consequently, normal\noperations must be suspended and the entire facility placed on\nlockdown until order is restored and the staff-to-inmate ratio\nreturns to normal in all areas of the jail. As part of a\nlockdown, no inmates are permitted to move in or out of the\nfacility. This means inmate transfers to permanent housing\nare cancelled by the IRC for the duration of a lockdown. A\nlockdown at a facility in Los Angeles County may thus\nprolong processing times at the IRC. The Operations Deputy\nfurther explained that a lockdown in any one of the booking\nfront, class rear, or custody line stages necessarily results in\na lockdown in the other areas because each stage operates in\nconnection with the others.\n\n An LASD sergeant assigned to the MCJ during the time\nof the disturbances explained that after a lockdown is lifted,\ninmate movement cannot immediately resume. Following a\nlockdown caused by inmate disturbances, detention facility\npersonnel must conduct thorough security checks, survey\nproperty damage, and address medical needs. These post-\n\f8 OLIVIER V. BACA\n\nlockdown procedures naturally lead to delays in inmate\nprocessing in excess of the length of the lockdowns\nthemselves.\n\n The magistrate judge concluded that the newly\nsupplemented record conclusively demonstrated that the Los\nAngeles County jail system experienced exigent\ncircumstances due to the disturbances and lockdowns. The\nmagistrate judge recommended granting Baca’s motion for\nsummary judgment in its entirety. On July 19, 2013, the\ndistrict court accepted the magistrate judge’s\nrecommendations, granted summary judgment in favor of\nBaca, and dismissed the case with prejudice.\n\n II. STANDARD OF REVIEW\n\n A district court’s order granting summary judgment is\nreviewed de novo. McDonald v. Sun Oil Co., 548 F.3d 774,\n778 (9th Cir. 2008). The party moving for summary\njudgment bears the initial burden of identifying those portions\nof the pleadings, discovery and affidavits which demonstrate\nthe absence of a genuine issue of material fact. Celotex Corp.\nv. Cattrett, 477 U.S. 317, 323 (1986). Where, as here, the\nopposing party will have the burden of proof at trial, the\nmoving party need only point out “that there is an absence of\nevidence to support the nonmoving party’s case.” Id. at 325.\n\n III. ANALYSIS\n\n A pretrial detainee is\n\n protected by the Fourteenth Amendment’s\n Due Process Clause . . . . Under the Due\n Process Clause, detainees have a right against\n\f OLIVIER V. BACA 9\n\n jail conditions or restrictions that amount to\n punishment. This standard differs\n significantly from the standard relevant to\n convicted prisoners, who may be subject to\n punishment so long as it does not violate the\n Eighth Amendment’s bar against cruel and\n unusual punishment.\n\nPierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)\n(internal citations and quotation marks omitted). For Olivier\nto state an actionable claim against Baca in his official\ncapacity, Olivier must show that “the action that is alleged to\nbe unconstitutional implements or executes a policy\nstatement, ordinance, regulation, or decision officially\nadopted and promulgated by that body’s officers.” Monell v.\nDep’t of Soc. Servs. of the City of New York, 436 U.S. 658,\n690 (1978). Local entities may also be “sued for\nconstitutional deprivations visited pursuant to governmental\n‘custom’ even though such a custom has not received formal\napproval through the body’s official decisionmaking\nchannels.” Id. at 690–91. For Olivier to state an actionable\nclaim against Baca in his individual capacity, he must show\nthat Baca was personally involved in his alleged\nconstitutional deprivation by, for example, acting, or failing\nto act, in a manner that was deliberately indifferent to\nOlivier’s constitutional rights. Starr v. Baca, 652 F.3d 1202,\n1206 (9th Cir. 2011).\n\n A.\n\n Olivier argues that summary judgment was improper\nbecause the evidence in the record establishes a triable issue\nas to whether the disturbances by inmates and lockdowns\njustified his floor sleeping.\n\f10 OLIVIER V. BACA\n\n It has long been recognized that “central to all other\ncorrections goals is the institutional consideration of internal\nsecurity within the corrections facilities themselves.” Pell v.\nProcunier, 417 U.S. 817, 823 (1974). The Supreme Court\nhas explained that measures to preserve security and order\n“may require limitation or retraction of the retained\nconstitutional rights of both convicted prisoners and pretrial\ndetainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). In this\nregard, corrections officials “should be accorded wide-\nranging deference in the adoption and execution of policies\nand practices that in their judgment are needed to preserve\ninternal order and discipline and to maintain institutional\nsecurity.” Id. at 547; Bull v. City and Cty. of San Francisco,\n595 F.3d 964, 972 (9th Cir. 2010) (en banc). The Supreme\nCourt has reaffirmed this principle, explaining that—in\naddressing a § 1983 claim brought by a pretrial detainee—\n“courts must defer to the judgment of correction officials\nunless the record contains substantial evidence showing their\npolicies are an unnecessary or unjustified response to\nproblems of jail security.” Florence v. Bd. of Chosen\nFreeholder of Cty. of Burlington, 566 U.S. 318, 322–23\n(2012).\n\n In the context of disturbances by inmates and lockdowns,\nwe have held that such issues can delay detention facility\nprocedures and temporarily restrict certain rights without\nviolating the Eighth Amendment. See, e.g., Noble v. Adams,\n646 F.3d 1138, 1142–43 (9th Cir. 2011); Norwood v. Vance,\n591 F.3d 1062, 1069 (9th Cir. 2010). In Noble, we held that\na three-month curtailment of prisoners’ outside exercise\nrights in response to a riot that hospitalized nine prison staff\nwas not a violation of their Eighth Amendment rights.\n646 F.3d at 1143. We stated that it was not yet clearly\nestablished “precisely how, according to the Constitution, or\n\f OLIVIER V. BACA 11\n\nwhen a prison facility housing problem inmates must return\nto normal operations . . . during and after a state of\nemergency called in response to a major riot.” Id. In\nNorwood, we explained that “[o]fficials must balance [the\nduty to keep inmates safe] against other obligations that our\nlaws impose . . . . ‘[P]rison officials have a right and duty to\ntake the necessary steps to reestablish order in a prison when\nsuch order is lost.’” 591 F.3d at 1069 (quoting Hoptowit v.\nRay, 682 F.2d 1237, 1259 (9th Cir. 1982)).\n\n Although Noble and Norwood involve prisoners and\nEighth Amendment rights, the same considerations are\nrelevant in the pretrial detainee context. Jails, just like\nprisons, “are responsible for maintaining internal order and\ndiscipline [and] for securing their institutions against\nunauthorized access or escape.” Bell, 441 U.S. at 548 n.30\n(quoting Procunier v. Martinez, 416 U.S. 396, 404 (1974)).\nFurther, “[t]here is no basis for concluding that pretrial\ndetainees pose any lesser security risk than convicted\ninmates.” Bell, 441 U.S. at 546 n.28. The district court in\nThomas v. Baca, 514 F. Supp. 2d 1201, 1225 (C.D. Cal.\n2007), for example, recognized this principle when it\nsuggested an exception to the general rule that each inmate in\nLASD facilities must be provided with a bunk: “A sudden,\nextreme rise in inmate population caused by an acute event,\nsuch as a civil disturbance, may affect the length of time that\nis reasonable for processing.”\n\n Here, LASD was well within the scope of its authority to\nmaintain security when it carried out the lockdowns that\ndelayed Olivier’s transfer to permanent housing, resulting in\nthree-and-a-half days without a bed. The evidence is\nuncontroverted that, over this period of time, LASD was\nconfronted with emergencies that threatened the safety and\n\f12 OLIVIER V. BACA\n\nsecurity of its facilities. It is also clear that the jail officials’\nresponse to the security threats was reasonable in its scope\nand effective in controlling the disturbances. See Bell,\n441 U.S. at 540 (“Restraints that are reasonably related to the\ninstitution’s interest in maintaining jail security do not,\nwithout more, constitute unconstitutional punishment, even\nif they are discomforting . . . .”). Indeed, Olivier was\npromptly transferred to permanent housing after the\ndisturbances had been controlled. Thus, in view of the “wide-\nranging deference,” id. at 547, the Supreme Court has\nprescribed in the area of correctional facility policy, along\nwith Baca’s clarifications of the rationale underlying LASD\nprocedures, there is no basis in the record on which to\nconclude that LASD’s response to the inmate disturbances\nconstituted “an unnecessary or unjustified response to\nproblems of jail security.” Florence, 566 U.S. at 322.\n\n Olivier relies on Thomas v. Ponder, 611 F.3d 1144, 1155\n(9th Cir. 2010), to support his argument that his holdover at\nthe IRC raises an issue of material fact, but Ponder is\ndistinguishable. In Ponder, we held that an indefinite\ndeprivation of out-of-cell exercise lasting for fourteen months\nraised a genuine issue of material fact as to whether the\nprison officials acted reasonably. Id. at 1156. The first two\nmonths of deprivation of out-of-cell activity was due to a\nprison-wide lockdown in the wake of stabbings of two\ncorrectional officers. Id. Prison officials argued that\nprolonging the plaintiff’s punishment for an additional year\nwas justified, in part, because of “occasional documented\nthreats” that ensued. Id. We rejected the prison officials’\nargument, finding that a genuine issue of material fact existed\nas to whether the 14-month deprivation was reasonable. Id.\nat 1152.\n\f OLIVIER V. BACA 13\n\n Here, in contrast, the evidence shows that LASD\naddressed a nearly uninterrupted series of riots and civil\ndisturbances involving hundreds of inmates, and resumed\nnormal operations within a matter of hours after jail officials\nregained control of their facilities. The differences in both\nthe extent of the civil disturbances and the length of the\ndeprivation make Ponder unhelpful to Olivier’s argument.5\n\n B.\n\n Olivier also argues that the district court erred in granting\nsummary judgment in favor of Baca based on qualified\nimmunity. He contends that, although the specific issue of\nfloor sleeping during inmate processing due to exigent\ncircumstances had not been held unconstitutional, “the\nunlawfulness was apparent under the circumstances.” Olivier\nfurther contends that Baca should have been “prohibit[ed] . . .\nfrom arguing . . . qualified immunity . . . [b]ased upon\nAppellant’s collateral estoppel arguments.”\n\n “Qualified immunity shields federal and state officials\nfrom money damages unless a plaintiff pleads facts showing\n\n 5\n Olivier also argues that an inference is proper that the disturbances\nand lockdowns that led to his holdover at the IRC were natural\nconsequences of prison overcrowding. He contends that if such\ndisturbances are common they should not excuse constitutional violations.\nOlivier, however, has not presented any admissible evidence to\ndemonstrate, as he claims, that riots were the natural and foreseeable\nconsequences of overcrowding in Los Angeles County jails. Olivier cites\nin his brief two internet articles—published over ten years after the events\nat issue—reporting generally on overcrowding in Los Angeles jails.\nHowever, as these articles were not in the record before the district court,\nthey do not undermine the district court’s decision. See U.S. v. W.R.\nGrace, 504 F.3d 745, 766 (9th Cir. 2007). Accordingly, we reject this\nargument.\n\f14 OLIVIER V. BACA\n\n(1) that the official violated a statutory or constitutional right,\nand (2) that the right was ‘clearly established’ at the time of\nthe challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,\n735 (2011). For a right to be “clearly established,” existing\n“precedent must have placed the statutory or constitutional\nquestion beyond debate,” such that “every” reasonable\nofficial would have understood that he was violating a clearly\nestablished right. Id. at 741. “This is not to say that an\nofficial action is protected by qualified immunity unless the\nvery action in question has previously been held unlawful, but\nit is to say that in the light of pre-existing law the\nunlawfulness must be apparent.” Anderson v. Creighton,\n483 U.S. 635, 640 (1987) (citation omitted). The burden is\non the party contesting qualified immunity to show that a law\nwas clearly established at the time of an alleged violation.\nDavis v. Scherer, 468 U.S. 183, 197–98 (1984).\n\n Olivier has not demonstrated that the law regarding floor\nsleeping, in the context of exigent circumstances, was or is\nclearly established. Thompson v. City of Los Angeles,\n885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other\ngrounds by Bull, 595 F.3d at 981, and Rutherford v. Pitchess,\n457 F. Supp. 104, 109 (C.D. Cal. 1978), held that forcing\ndetainees to sleep on the ground is a constitutional violation.\nHowever, those cases did not involve exigent circumstances,\nand thus any “unlawfulness” cannot be said to have been\n“apparent” to Baca in the context of the inmate disturbances\nat issue here. Olivier also cites Thomas to support his\nargument that it is clearly established that inmate processing\nshould take no longer than twenty-four hours. 514 F. Supp\n2d at 1215. Thomas, a district court decision, was not\ndecided until over a year after the events at issue, so that case\ncould not have “placed the . . . constitutional question beyond\ndebate” at the time of Olivier’s delay at the IRC. See al-Kidd,\n\f OLIVIER V. BACA 15\n\n563 U.S. at 741. Additionally, Thomas explicitly recognized\nan exception to its general inmate processing guidelines for\nexigent circumstances such as civil disturbances. 514 F.\nSupp. 2d at 1218–19.\n\n Finally, we reject Olivier’s argument that collateral\nestoppel should have prevented Baca from claiming qualified\nimmunity. Collateral estoppel bars successive litigation of an\nissue of fact or law actually litigated and resolved in a prior\ncourt determination even if the issue recurs in the context of\na different claim. See Howard v. City of Coos Bay, 871 F.3d\n1032, 1040–41 (9th Cir. 2017). The issue presented in this\ncase—floor sleeping due to exigent circumstances—was not\naddressed in any of the cases cited by Olivier, and the district\ncourt in Thomas specifically recognized an exigent\ncircumstances exception to its holding that floor sleeping is\nunconstitutional. 514 F. Supp. 2d at 1218–19. Accordingly,\ncollateral estoppel does not apply.\n\n In sum, Olivier has not shown that a genuine issue of\nmaterial fact exists as to whether Baca was entitled to\nqualified immunity.6\n\n C.\n\n Olivier also argues that the district court abused its\ndiscretion by: (1) declining to transfer the case to another\ncourtroom as a related case; (2) failing to authorize punitive\ndamages against Baca; (3) failing to take judicial notice of his\n\n\n 6\n Baca also argues that Olivier failed to exhaust the administrative\nremedies available to him under the Prison Litigation Reform Act.\nBecause we hold that the district court did not err in granting summary\njudgment, we do not reach this issue.\n\f16 OLIVIER V. BACA\n\nopposition motion; and (4) admitting declarations from\nLASD officials. None of these arguments is persuasive.\n\n First, the district court did not abuse its discretion by\ndeclining to transfer the case because the record does not\nindicate that Olivier filed a Notice of Related Civil Cases, as\nhe was required to do for the district court to consider\ntransferring the case. C.D. Cal. R. 83-1.3.1. Second, punitive\ndamages are not available against Baca in his official\ncapacity, see Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir.\n1996), and Olivier’s claim for punitive damages against Baca\nindividually is moot in light of our holding that Baca is\nentitled to qualified immunity. Third, the district court did\nnot abuse its discretion by declining to take judicial notice of\nOlivier’s opposition motion because “[l]egal memoranda . . .\nare not evidence, and do not create issues of fact capable of\ndefeating an otherwise valid motion for summary judgment.”\nFlaherty v. Warehousemen, Garage & Serv. Station Empls.’\nLocal Union No. 334, 574 F.2d 484, 486 n.2 (9th Cir. 1978).\nFinally, the district court did not abuse its discretion by\nadmitting declarations from LASD officials because the\nofficials had personal knowledge of both the events and the\nLASD procedures at issue. Fed. R. Civ. P. 56(c)(4); see, e.g.,\nS.E.C. v. Phan, 500 F.3d 895, 913 (9th Cir. 2007).\n\n IV. CONCLUSION\n\n Olivier has not presented a basis for disturbing the district\ncourt’s judgment. The evidence is uncontroverted and\nsummary judgment was proper as a matter of law. In\naddition, even if a Fourteenth Amendment violation did\noccur, the district court correctly held that Baca is entitled to\nqualified immunity because the right asserted by Olivier—not\nbeing forced to sleep on the floor during a jail\n\f OLIVIER V. BACA 17\n\nlockdown—was not clearly established at the time of the\nevents. Finally, Olivier has not shown that the district court\nabused its discretion in rejecting his various ancillary claims.\nAFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358146/", "author_raw": "CALLAHAN, Circuit Judge:"}]}	CONSUELO M CALLAHAN	JACQUELINE H NGUYEN	DAVID A EZRA	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580893/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Maurice Olivier v. Leroy Baca\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MAURICE P. OLIVIER, AKA Maurice No. 13-56371\n Pierre Olivier,\n Plaintiff-Appellant, D.C. No.\n 2:08-cv-07169-\n v. JFW-AGR\n\n LEROY D. BACA, Los Angeles\n County Sheriff of Custody OPINION\n Operations,\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the Central District of California\n John F. Walter, District Judge, Presiding\n\n Argued and Submitted August 10, 2018\n Pasadena, California\n\n Filed January 11, 2019\n\nBefore: Consuelo M. Callahan and Jacqueline H. Nguyen,\n Circuit Judges, and David A. Ezra,* District Judge.\n\n Opinion by Judge Callahan\n\n\n \n The Honorable David A. Ezra, United States District Judge for the\nDistrict of Hawaii, sitting by designation.\n\f2 OLIVIER V. BACA\n\n SUMMARY\n\n\n Prisoner Civil Rights\n\n The panel affirmed the district court’s summary judgment\nin favor of defendant Sheriff Baca in a 42 U.S.C. § 1983\naction alleging that Baca violated plaintiff’s Fourteenth\nAmendment rights by failing to provide him with a bed\nduring his three-and-a-half day stay at the Los Angeles\nInmate Reception Center while he was a pretrial detainee.\n\n The panel held that the Los Angeles Sheriff’s Department\nwas well within the scope of its authority to maintain security\nwhen it carried out the lockdowns that delayed plaintiff’s\ntransfer to permanent housing, resulting in three-and-a-half\ndays without a bed. The panel held that, in view of the\ndeference the Supreme Court has prescribed in the area of\ncorrectional facility policy, along with Baca’s clarifications\nof the rationale underlying Department procedures, there\nwas no basis in the record on which to conclude that the\nresponse to the inmate disturbances constituted an\nunnecessary or unjustified response to problems of jail\nsecurity.\n\n The panel further held that even if a Fourteenth\nAmendment violation did occur, the district court correctly\nheld that Baca was entitled to qualified immunity because the\nright asserted by plaintiff—not being forced to sleep on the\nfloor during a jail lockdown—was not clearly established at\nthe time of the events.\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f OLIVIER V. BACA 3\n\n COUNSEL\n\nR. Chris Lim (argued), Los Feliz Law APC, Los Angeles,\nCalifornia, for Plaintiff-Appellant.\n\nJonathan Carl Magno (argued), Daniel Lee, and Paul B.\nBeach, Lawrence Beach Allen & Choi PC, Glendale,\nCalifornia, for Defendant-Appellee.\n\n\n OPINION\n\nCALLAHAN, Circuit Judge:\n\n On the night of July 12, 2006, Plaintiff-Appellant Maurice\nOlivier (“Olivier”) was arrested and taken to the Los Angeles\nCounty Inmate Reception Center (“IRC”) for processing into\npermanent housing. Due to a series of disturbances by\ninmates and lockdowns throughout the Los Angeles County\njail system, Olivier was not transferred to permanent housing\nuntil the afternoon of July 16, 2006. Olivier brought an\naction under 42 U.S.C. § 1983 against Defendant-Appellee\nSheriff Leroy Baca (“Baca”) in Baca’s official and individual\ncapacities, alleging that Baca violated his Fourteenth\nAmendment rights by failing to provide him with a bed\nduring his three-and-a-half day stay at the IRC. The district\ncourt granted summary judgment in Baca’s favor, holding\nthat Olivier had not raised a genuine issue of material fact as\nto whether disturbances by inmates and lockdowns\nconstituted exigent circumstances justifying the floor\nsleeping. Olivier appeals. We affirm and hold that the\nexigent circumstance of inmate disturbances and lockdowns\njustified denying Olivier a bed for his three-and-a-half day\nstay at the IRC.\n\f4 OLIVIER V. BACA\n\n I. FACTUAL AND PROCEDURAL BACKGROUND\n\n A.\n\n On May 25, 2006, Olivier was arrested by the Los\nAngeles Police Department for burglary. He was processed\ninto permanent housing at Los Angeles Men’s Central Jail\n(“MCJ”) but erroneously released on July 7, 2006. On July\n12, 2006, the Los Angeles County Sheriff’s Department\n(“LASD”) located and again arrested Olivier. At 9:56 p.m.,\nhe arrived at the IRC for processing into the county jail\nsystem.1\n\n Upon Olivier’s arrival at the IRC, he was determined to\nhave health issues. Consequently, Olivier was sent to the\nmedical screening area of the IRC where he waited on a\nbench for an examination, along with around 100 other\npeople.\n\n LASD officials determined that Olivier could be properly\nhoused only at MCJ in light of his medical needs, his\nclassification as a non-high risk inmate without mental\n\n\n\n\n 1\n The IRC serves as a hub for processing incoming and outgoing\ninmates in the jail system. The process occurs in three stages:\n(1) “booking front,” which involves an initial interview, screening, and\nphotograph; (2) “class rear,” which involves medical screening,\nfingerprinting and housing classification; and (3) “custody line,” where\ninmates are fed, provided medication if applicable, and picked up by\npersonnel from the housing facility to which they are assigned. On\naverage, more than 300 inmates are processed daily at the IRC.\n\f OLIVIER V. BACA 5\n\nillness, and the proximity of MCJ to the venue of his\nunderlying criminal case.2\n\n While Olivier was being processed at the IRC for transfer\nto MCJ, inmates at jail facilities across Los Angeles County\nrepeatedly divided themselves along racial lines and fought.\nThis string of inmate disturbances persisted for approximately\nthree days and necessitated lockdowns at multiple facilities,\nwhich, in turn, delayed processing at the IRC. LASD logs\nand declarations from LASD personnel provide accounts of\nthe disturbances.3\n\n\n\n\n 2\n In 2006, the LASD operated three housing facilities for male\ninmates within the Los Angeles County jail system: MCJ, Twin Towers\nCorrectional Facility, and Pitchess Detention Center. Twin Towers\nhoused exclusively inmates with high security risk classifications, inmates\nsuffering from severe mental illness, and sexually violent inmates.\nPitchess did not have medical services that would have accommodated\nOlivier’s claimed medical condition. Additionally, Pitchess is located\nmore than forty-five miles by road from the venue where Olivier’s\ncriminal case was scheduled. MCJ was thus the only suitable permanent\nhousing for Olivier.\n 3\n On July 13, 2006, at 8:30 a.m., the IRC class rear was closed due to\ninmate fighting, causing inmate processing at the IRC to stop. On July 13\nat 4:30 p.m., approximately 100 IRC custody line inmates could not be\ntransferred due to inmate disturbances at Pitchess Detention Center. On\nJuly 13, Twin Towers was placed on full lockdown. From 11:15 p.m. on\nJuly 13 until 1:20 a.m. on July 14, inmate rioting occurred at the MCJ. On\nJuly 14, the MCJ remained on full lockdown from 2:05 p.m. to 8:09 p.m.\nFrom July 14 at 10:45 p.m. into the following days, the IRC’s class rear\nand custody line were placed on lockdown. On July 15 at 9:30 a.m., and\nagain at 6:00 p.m., the IRC booking front was on lockdown. On July 15,\nMCJ was on lockdown until late in the day. On July 16, Twin Towers was\non lockdown from 6:00 a.m. to 9:00 a.m.\n\f6 OLIVIER V. BACA\n\n Olivier remained at the IRC for the duration of the inmate\ndisturbances, lockdowns, and post-lockdown procedures\nbefore being transferred to MCJ on July 16. In total, Olivier\nwas held at the IRC for approximately three-and-a-half days.\nOlivier testified that although there were benches in the cell\nwhere he was held, there was inadequate space to\naccommodate the number of detainees at the IRC. Olivier\ntestified that no one slept on the benches because trying to do\nso would have led to a fight. As a result, Olivier slept on the\nfloor during his time at the IRC. Olivier testified that he\nnever asked for “a mattress, blankets, or any other sort of\npadding.”\n\n After the lockdowns began on July 13, the first time\ninmates were picked up from the IRC custody line was on\nJuly 16 around 2:00 a.m. Olivier was transferred to the MCJ\nat 1:14 p.m. on July 16.\n\n B.\n\n On October 30, 2008, Olivier filed a complaint in district\ncourt alleging civil rights violations related to both his\nextended stay at the IRC and events that occurred after he\nwas transferred to MCJ.4 The district court dismissed certain\naspects of Olivier’s original claims, and Olivier amended his\ncomplaint several times. By the time the case reached the\nsummary judgment stage, the only remaining claim relevant\nto this appeal was a Fourteenth Amendment claim against\n\n\n 4\n Olivier’s claims relating to his experiences at MCJ were dismissed,\naside from a Fourteenth Amendment claim regarding exposure to lice in\nhis jail cell. The complaint also named a number of defendants in addition\nto Baca. On July 10, 2010, the district court dismissed all defendants\nexcept Baca.\n\f OLIVIER V. BACA 7\n\nBaca in his official and individual capacities regarding\nOlivier’s being forced to sleep on the floor at the medical\nintake area of the IRC.\n\n Baca filed a motion for summary judgment. After the\nmagistrate judge recommended denying the motion for lack\nof evidence that exigent circumstances existed, the district\ncourt gave Baca an opportunity to supplement the record.\nBaca then submitted additional declarations by LASD\nofficials. In 2013, the Operations Deputy at the IRC\nexplained that in response to such disturbances a large\nproportion of jail staff must work to restore order. Jail\npersonnel who do not respond to the disturbances and remain\nin other areas of the facility are, therefore, likely to be\nsignificantly outnumbered by inmates. Consequently, normal\noperations must be suspended and the entire facility placed on\nlockdown until order is restored and the staff-to-inmate ratio\nreturns to normal in all areas of the jail. As part of a\nlockdown, no inmates are permitted to move in or out of the\nfacility. This means inmate transfers to permanent housing\nare cancelled by the IRC for the duration of a lockdown. A\nlockdown at a facility in Los Angeles County may thus\nprolong processing times at the IRC. The Operations Deputy\nfurther explained that a lockdown in any one of the booking\nfront, class rear, or custody line stages necessarily results in\na lockdown in the other areas because each stage operates in\nconnection with the others.\n\n An LASD sergeant assigned to the MCJ during the time\nof the disturbances explained that after a lockdown is lifted,\ninmate movement cannot immediately resume. Following a\nlockdown caused by inmate disturbances, detention facility\npersonnel must conduct thorough security checks, survey\nproperty damage, and address medical needs. These post-\n\f8 OLIVIER V. BACA\n\nlockdown procedures naturally lead to delays in inmate\nprocessing in excess of the length of the lockdowns\nthemselves.\n\n The magistrate judge concluded that the newly\nsupplemented record conclusively demonstrated that the Los\nAngeles County jail system experienced exigent\ncircumstances due to the disturbances and lockdowns. The\nmagistrate judge recommended granting Baca’s motion for\nsummary judgment in its entirety. On July 19, 2013, the\ndistrict court accepted the magistrate judge’s\nrecommendations, granted summary judgment in favor of\nBaca, and dismissed the case with prejudice.\n\n II. STANDARD OF REVIEW\n\n A district court’s order granting summary judgment is\nreviewed de novo. McDonald v. Sun Oil Co., 548 F.3d 774,\n778 (9th Cir. 2008). The party moving for summary\njudgment bears the initial burden of identifying those portions\nof the pleadings, discovery and affidavits which demonstrate\nthe absence of a genuine issue of material fact. Celotex Corp.\nv. Cattrett, 477 U.S. 317, 323 (1986). Where, as here, the\nopposing party will have the burden of proof at trial, the\nmoving party need only point out “that there is an absence of\nevidence to support the nonmoving party’s case.” Id. at 325.\n\n III. ANALYSIS\n\n A pretrial detainee is\n\n protected by the Fourteenth Amendment’s\n Due Process Clause . . . . Under the Due\n Process Clause, detainees have a right against\n\f OLIVIER V. BACA 9\n\n jail conditions or restrictions that amount to\n punishment. This standard differs\n significantly from the standard relevant to\n convicted prisoners, who may be subject to\n punishment so long as it does not violate the\n Eighth Amendment’s bar against cruel and\n unusual punishment.\n\nPierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)\n(internal citations and quotation marks omitted). For Olivier\nto state an actionable claim against Baca in his official\ncapacity, Olivier must show that “the action that is alleged to\nbe unconstitutional implements or executes a policy\nstatement, ordinance, regulation, or decision officially\nadopted and promulgated by that body’s officers.” Monell v.\nDep’t of Soc. Servs. of the City of New York, 436 U.S. 658,\n690 (1978). Local entities may also be “sued for\nconstitutional deprivations visited pursuant to governmental\n‘custom’ even though such a custom has not received formal\napproval through the body’s official decisionmaking\nchannels.” Id. at 690–91. For Olivier to state an actionable\nclaim against Baca in his individual capacity, he must show\nthat Baca was personally involved in his alleged\nconstitutional deprivation by, for example, acting, or failing\nto act, in a manner that was deliberately indifferent to\nOlivier’s constitutional rights. Starr v. Baca, 652 F.3d 1202,\n1206 (9th Cir. 2011).\n\n A.\n\n Olivier argues that summary judgment was improper\nbecause the evidence in the record establishes a triable issue\nas to whether the disturbances by inmates and lockdowns\njustified his floor sleeping.\n\f10 OLIVIER V. BACA\n\n It has long been recognized that “central to all other\ncorrections goals is the institutional consideration of internal\nsecurity within the corrections facilities themselves.” Pell v.\nProcunier, 417 U.S. 817, 823 (1974). The Supreme Court\nhas explained that measures to preserve security and order\n“may require limitation or retraction of the retained\nconstitutional rights of both convicted prisoners and pretrial\ndetainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). In this\nregard, corrections officials “should be accorded wide-\nranging deference in the adoption and execution of policies\nand practices that in their judgment are needed to preserve\ninternal order and discipline and to maintain institutional\nsecurity.” Id. at 547; Bull v. City and Cty. of San Francisco,\n595 F.3d 964, 972 (9th Cir. 2010) (en banc). The Supreme\nCourt has reaffirmed this principle, explaining that—in\naddressing a § 1983 claim brought by a pretrial detainee—\n“courts must defer to the judgment of correction officials\nunless the record contains substantial evidence showing their\npolicies are an unnecessary or unjustified response to\nproblems of jail security.” Florence v. Bd. of Chosen\nFreeholder of Cty. of Burlington, 566 U.S. 318, 322–23\n(2012).\n\n In the context of disturbances by inmates and lockdowns,\nwe have held that such issues can delay detention facility\nprocedures and temporarily restrict certain rights without\nviolating the Eighth Amendment. See, e.g., Noble v. Adams,\n646 F.3d 1138, 1142–43 (9th Cir. 2011); Norwood v. Vance,\n591 F.3d 1062, 1069 (9th Cir. 2010). In Noble, we held that\na three-month curtailment of prisoners’ outside exercise\nrights in response to a riot that hospitalized nine prison staff\nwas not a violation of their Eighth Amendment rights.\n646 F.3d at 1143. We stated that it was not yet clearly\nestablished “precisely how, according to the Constitution, or\n\f OLIVIER V. BACA 11\n\nwhen a prison facility housing problem inmates must return\nto normal operations . . . during and after a state of\nemergency called in response to a major riot.” Id. In\nNorwood, we explained that “[o]fficials must balance [the\nduty to keep inmates safe] against other obligations that our\nlaws impose . . . . ‘[P]rison officials have a right and duty to\ntake the necessary steps to reestablish order in a prison when\nsuch order is lost.’” 591 F.3d at 1069 (quoting Hoptowit v.\nRay, 682 F.2d 1237, 1259 (9th Cir. 1982)).\n\n Although Noble and Norwood involve prisoners and\nEighth Amendment rights, the same considerations are\nrelevant in the pretrial detainee context. Jails, just like\nprisons, “are responsible for maintaining internal order and\ndiscipline [and] for securing their institutions against\nunauthorized access or escape.” Bell, 441 U.S. at 548 n.30\n(quoting Procunier v. Martinez, 416 U.S. 396, 404 (1974)).\nFurther, “[t]here is no basis for concluding that pretrial\ndetainees pose any lesser security risk than convicted\ninmates.” Bell, 441 U.S. at 546 n.28. The district court in\nThomas v. Baca, 514 F. Supp. 2d 1201, 1225 (C.D. Cal.\n2007), for example, recognized this principle when it\nsuggested an exception to the general rule that each inmate in\nLASD facilities must be provided with a bunk: “A sudden,\nextreme rise in inmate population caused by an acute event,\nsuch as a civil disturbance, may affect the length of time that\nis reasonable for processing.”\n\n Here, LASD was well within the scope of its authority to\nmaintain security when it carried out the lockdowns that\ndelayed Olivier’s transfer to permanent housing, resulting in\nthree-and-a-half days without a bed. The evidence is\nuncontroverted that, over this period of time, LASD was\nconfronted with emergencies that threatened the safety and\n\f12 OLIVIER V. BACA\n\nsecurity of its facilities. It is also clear that the jail officials’\nresponse to the security threats was reasonable in its scope\nand effective in controlling the disturbances. See Bell,\n441 U.S. at 540 (“Restraints that are reasonably related to the\ninstitution’s interest in maintaining jail security do not,\nwithout more, constitute unconstitutional punishment, even\nif they are discomforting . . . .”). Indeed, Olivier was\npromptly transferred to permanent housing after the\ndisturbances had been controlled. Thus, in view of the “wide-\nranging deference,” id. at 547, the Supreme Court has\nprescribed in the area of correctional facility policy, along\nwith Baca’s clarifications of the rationale underlying LASD\nprocedures, there is no basis in the record on which to\nconclude that LASD’s response to the inmate disturbances\nconstituted “an unnecessary or unjustified response to\nproblems of jail security.” Florence, 566 U.S. at 322.\n\n Olivier relies on Thomas v. Ponder, 611 F.3d 1144, 1155\n(9th Cir. 2010), to support his argument that his holdover at\nthe IRC raises an issue of material fact, but Ponder is\ndistinguishable. In Ponder, we held that an indefinite\ndeprivation of out-of-cell exercise lasting for fourteen months\nraised a genuine issue of material fact as to whether the\nprison officials acted reasonably. Id. at 1156. The first two\nmonths of deprivation of out-of-cell activity was due to a\nprison-wide lockdown in the wake of stabbings of two\ncorrectional officers. Id. Prison officials argued that\nprolonging the plaintiff’s punishment for an additional year\nwas justified, in part, because of “occasional documented\nthreats” that ensued. Id. We rejected the prison officials’\nargument, finding that a genuine issue of material fact existed\nas to whether the 14-month deprivation was reasonable. Id.\nat 1152.\n\f OLIVIER V. BACA 13\n\n Here, in contrast, the evidence shows that LASD\naddressed a nearly uninterrupted series of riots and civil\ndisturbances involving hundreds of inmates, and resumed\nnormal operations within a matter of hours after jail officials\nregained control of their facilities. The differences in both\nthe extent of the civil disturbances and the length of the\ndeprivation make Ponder unhelpful to Olivier’s argument.5\n\n B.\n\n Olivier also argues that the district court erred in granting\nsummary judgment in favor of Baca based on qualified\nimmunity. He contends that, although the specific issue of\nfloor sleeping during inmate processing due to exigent\ncircumstances had not been held unconstitutional, “the\nunlawfulness was apparent under the circumstances.” Olivier\nfurther contends that Baca should have been “prohibit[ed] . . .\nfrom arguing . . . qualified immunity . . . [b]ased upon\nAppellant’s collateral estoppel arguments.”\n\n “Qualified immunity shields federal and state officials\nfrom money damages unless a plaintiff pleads facts showing\n\n 5\n Olivier also argues that an inference is proper that the disturbances\nand lockdowns that led to his holdover at the IRC were natural\nconsequences of prison overcrowding. He contends that if such\ndisturbances are common they should not excuse constitutional violations.\nOlivier, however, has not presented any admissible evidence to\ndemonstrate, as he claims, that riots were the natural and foreseeable\nconsequences of overcrowding in Los Angeles County jails. Olivier cites\nin his brief two internet articles—published over ten years after the events\nat issue—reporting generally on overcrowding in Los Angeles jails.\nHowever, as these articles were not in the record before the district court,\nthey do not undermine the district court’s decision. See U.S. v. W.R.\nGrace, 504 F.3d 745, 766 (9th Cir. 2007). Accordingly, we reject this\nargument.\n\f14 OLIVIER V. BACA\n\n(1) that the official violated a statutory or constitutional right,\nand (2) that the right was ‘clearly established’ at the time of\nthe challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,\n735 (2011). For a right to be “clearly established,” existing\n“precedent must have placed the statutory or constitutional\nquestion beyond debate,” such that “every” reasonable\nofficial would have understood that he was violating a clearly\nestablished right. Id. at 741. “This is not to say that an\nofficial action is protected by qualified immunity unless the\nvery action in question has previously been held unlawful, but\nit is to say that in the light of pre-existing law the\nunlawfulness must be apparent.” Anderson v. Creighton,\n483 U.S. 635, 640 (1987) (citation omitted). The burden is\non the party contesting qualified immunity to show that a law\nwas clearly established at the time of an alleged violation.\nDavis v. Scherer, 468 U.S. 183, 197–98 (1984).\n\n Olivier has not demonstrated that the law regarding floor\nsleeping, in the context of exigent circumstances, was or is\nclearly established. Thompson v. City of Los Angeles,\n885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other\ngrounds by Bull, 595 F.3d at 981, and Rutherford v. Pitchess,\n457 F. Supp. 104, 109 (C.D. Cal. 1978), held that forcing\ndetainees to sleep on the ground is a constitutional violation.\nHowever, those cases did not involve exigent circumstances,\nand thus any “unlawfulness” cannot be said to have been\n“apparent” to Baca in the context of the inmate disturbances\nat issue here. Olivier also cites Thomas to support his\nargument that it is clearly established that inmate processing\nshould take no longer than twenty-four hours. 514 F. Supp\n2d at 1215. Thomas, a district court decision, was not\ndecided until over a year after the events at issue, so that case\ncould not have “placed the . . . constitutional question beyond\ndebate” at the time of Olivier’s delay at the IRC. See al-Kidd,\n\f OLIVIER V. BACA 15\n\n563 U.S. at 741. Additionally, Thomas explicitly recognized\nan exception to its general inmate processing guidelines for\nexigent circumstances such as civil disturbances. 514 F.\nSupp. 2d at 1218–19.\n\n Finally, we reject Olivier’s argument that collateral\nestoppel should have prevented Baca from claiming qualified\nimmunity. Collateral estoppel bars successive litigation of an\nissue of fact or law actually litigated and resolved in a prior\ncourt determination even if the issue recurs in the context of\na different claim. See Howard v. City of Coos Bay, 871 F.3d\n1032, 1040–41 (9th Cir. 2017). The issue presented in this\ncase—floor sleeping due to exigent circumstances—was not\naddressed in any of the cases cited by Olivier, and the district\ncourt in Thomas specifically recognized an exigent\ncircumstances exception to its holding that floor sleeping is\nunconstitutional. 514 F. Supp. 2d at 1218–19. Accordingly,\ncollateral estoppel does not apply.\n\n In sum, Olivier has not shown that a genuine issue of\nmaterial fact exists as to whether Baca was entitled to\nqualified immunity.6\n\n C.\n\n Olivier also argues that the district court abused its\ndiscretion by: (1) declining to transfer the case to another\ncourtroom as a related case; (2) failing to authorize punitive\ndamages against Baca; (3) failing to take judicial notice of his\n\n\n 6\n Baca also argues that Olivier failed to exhaust the administrative\nremedies available to him under the Prison Litigation Reform Act.\nBecause we hold that the district court did not err in granting summary\njudgment, we do not reach this issue.\n\f16 OLIVIER V. BACA\n\nopposition motion; and (4) admitting declarations from\nLASD officials. None of these arguments is persuasive.\n\n First, the district court did not abuse its discretion by\ndeclining to transfer the case because the record does not\nindicate that Olivier filed a Notice of Related Civil Cases, as\nhe was required to do for the district court to consider\ntransferring the case. C.D. Cal. R. 83-1.3.1. Second, punitive\ndamages are not available against Baca in his official\ncapacity, see Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir.\n1996), and Olivier’s claim for punitive damages against Baca\nindividually is moot in light of our holding that Baca is\nentitled to qualified immunity. Third, the district court did\nnot abuse its discretion by declining to take judicial notice of\nOlivier’s opposition motion because “[l]egal memoranda . . .\nare not evidence, and do not create issues of fact capable of\ndefeating an otherwise valid motion for summary judgment.”\nFlaherty v. Warehousemen, Garage & Serv. Station Empls.’\nLocal Union No. 334, 574 F.2d 484, 486 n.2 (9th Cir. 1978).\nFinally, the district court did not abuse its discretion by\nadmitting declarations from LASD officials because the\nofficials had personal knowledge of both the events and the\nLASD procedures at issue. Fed. R. Civ. P. 56(c)(4); see, e.g.,\nS.E.C. v. Phan, 500 F.3d 895, 913 (9th Cir. 2007).\n\n IV. CONCLUSION\n\n Olivier has not presented a basis for disturbing the district\ncourt’s judgment. The evidence is uncontroverted and\nsummary judgment was proper as a matter of law. In\naddition, even if a Fourteenth Amendment violation did\noccur, the district court correctly held that Baca is entitled to\nqualified immunity because the right asserted by Olivier—not\nbeing forced to sleep on the floor during a jail\n\f OLIVIER V. BACA 17\n\nlockdown—was not clearly established at the time of the\nevents. Finally, Olivier has not shown that the district court\nabused its discretion in rejecting his various ancillary claims.\nAFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,262		United States v. Gordon Hall	2019-01-11	17-10422	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-10422\n Plaintiff-Appellee,\n D.C. No.\n v. 2:14-cr-00184-\n NVW-1\n GORDON LEROY HALL,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Neil V. Wake, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Per Curiam Opinion\n\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 UNITED STATES V. HALL\n\n SUMMARY \n\n\n Criminal Law\n\n The panel reversed in part a criminal judgment in a case\nin which the defendant appealed a special condition of\nsupervised release that provides that the defendant is\npermitted to have contact with his son “only for normal\nfamilial relations but is prohibited from any contact,\ndiscussion, or communication concerning financial or\ninvestment matters except matters limited to defendant’s\nown support.”\n\n The panel held that the condition is unconstitutionally\nvague, and struck the offending words “only for normal\nfamilial relations” from the condition.\n\n\n COUNSEL\n\nElisse Larouche (argued) and Daniel L. Kaplan, Assistant\nFederal Public Defenders; Jon M. Sands, Federal Public\nDefender; Office of the Federal Public Defender, Phoenix,\nArizona; for Defendant-Appellant.\n\nLisa E. Jennis (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth\nStrange, First Assistant United States Attorney; United\nStates Attorney’s Office, Phoenix, Arizona; for Plaintiff-\nAppellee.\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. HALL 3\n\n OPINION\n\nPER CURIAM:\n\n Gordon Hall (“Hall”) and his son Benton (“Benton”)\nwere both sentenced to prison for their business venture\nhelping others defraud the government through false money\norders. The two were already incarcerated for a separate joint\ncriminal enterprise. For the second time, Hall, who is still in\nprison, appeals a special condition of his anticipated release\nrestricting his relationship with his family. 1 Special\nCondition 11 provides that Hall “is permitted to have contact\nwith Benton [] only for normal familial relations but is\nprohibited from any contact, discussion, or communication\nconcerning financial or investment matters except matters\nlimited to defendant’s own support.” Hall objected at\nsentencing that the condition is unconstitutionally vague.\nWe agree, and strike the offending words “only for normal\nfamilial relations” from the condition.\n\n A supervised release condition “violates due process of\nlaw if it either forbids or requires the doing of an act in terms\nso vague that men of common intelligence must necessarily\nguess at its meaning and differ as to its application.” United\nStates v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (per\ncuriam) (citations and quotation marks omitted); see also\nUnited States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.\n\n 1\n In an earlier memorandum disposition, this court considered\nanother version of this condition, which, without exception for relatives,\nprohibited Hall from “associat[ing] with . . . any person convicted of a\nfelony unless granted permission to do so by the probation officer.”\nUnited States v. Hall, 681 F. App’x 621, 623–24 (9th Cir. 2017). Because\nthe trial court had imposed that condition without justifying or limiting\nthe restriction on Hall’s right to associate with his children, who had been\nconvicted of felonies, we vacated and remanded. Id.\n\f4 UNITED STATES V. HALL\n\n2015). The government cannot save an otherwise\nimpermissible condition by “promising to enforce it in a\nnarrow manner.” Id. at 1037 (alterations omitted) (quoting\nSoltero, 510 F.3d at 867 n.10). Although usually this court\n“give[s] considerable deference to a district court’s\ndetermination of the appropriate supervised release\nconditions,” United States v. Weber, 451 F.3d 552, 557 (9th\nCir. 2006), it “review[s] carefully” conditions that implicate\nthe “fundamental liberty interest in having contact with\none’s children,” United States v. Wolf Child, 699 F.3d 1082,\n1089, 1091 (9th Cir. 2012), or the defendant’s First\nAmendment rights, cf. Cal. Teachers Ass’n v. State Bd. of\nEduc., 271 F.3d 1141, 1150 (9th Cir. 2001).\n\n The phrase “normal familial relations” is susceptible to\nmany different interpretations, and so raises questions with\nno clear answers. Must relations be “normal” for that\nparticular family, or “normal” for families in general? If the\nlatter, as the government contended at oral argument, how is\na defendant to know what a “normal” family is and does, in\nlight of the tremendous diversity of family structures and\nfamily habits, customs, and activities in this country? Cf.\nJohnson v. United States, 135 S. Ct. 2551, 2557–58 (2015)\n(identifying the unconstitutional ambiguities of the Armed\nCareer Criminal Act residual clause).\n\n Further, unconventional political activities or religious\ntraditions in which a family might collectively engage may\nnot be “normal” for families in general, but they are, with\nnarrow exceptions, constitutionally protected. See, e.g.,\nEmployment Div., Dep’t of Human Res. of Oregon v. Smith,\n494 U.S. 872, 876–78 (1990); Wisconsin v. Yoder, 406 U.S.\n205, 234 (1972). Whether or not such an interpretation of the\ncondition by a probation officer or judge is likely,\n“[u]ncertain meanings inevitably lead citizens to steer far\n\f UNITED STATES V. HALL 5\n\nwider of the unlawful zone than if the boundaries of the\nforbidden areas were clearly marked.” Cal. Teachers Ass’n,\n271 F.3d at 1150 (quotation marks and citations omitted).\n\n If the district court meant only to prohibit Hall and\nBenton from participating in illegal activities together, it\ncould have said exactly that and no more, as defense counsel\nsuggested at the resentencing hearing. Notably, Hall is\ngenerally prohibited from engaging in illegal activities by his\nfirst condition of supervised release.\n\n REVERSED in part.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358515/", "author_raw": "PER CURIAM"}]}	RONALD M GOULD	MARSHA S BERZON	FREDERIC BLOCK	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581262/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Gordon Hall\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-10422\n Plaintiff-Appellee,\n D.C. No.\n v. 2:14-cr-00184-\n NVW-1\n GORDON LEROY HALL,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Neil V. Wake, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 11, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Per Curiam Opinion\n\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 UNITED STATES V. HALL\n\n SUMMARY \n\n\n Criminal Law\n\n The panel reversed in part a criminal judgment in a case\nin which the defendant appealed a special condition of\nsupervised release that provides that the defendant is\npermitted to have contact with his son “only for normal\nfamilial relations but is prohibited from any contact,\ndiscussion, or communication concerning financial or\ninvestment matters except matters limited to defendant’s\nown support.”\n\n The panel held that the condition is unconstitutionally\nvague, and struck the offending words “only for normal\nfamilial relations” from the condition.\n\n\n COUNSEL\n\nElisse Larouche (argued) and Daniel L. Kaplan, Assistant\nFederal Public Defenders; Jon M. Sands, Federal Public\nDefender; Office of the Federal Public Defender, Phoenix,\nArizona; for Defendant-Appellant.\n\nLisa E. Jennis (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth\nStrange, First Assistant United States Attorney; United\nStates Attorney’s Office, Phoenix, Arizona; for Plaintiff-\nAppellee.\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. HALL 3\n\n OPINION\n\nPER CURIAM:\n\n Gordon Hall (“Hall”) and his son Benton (“Benton”)\nwere both sentenced to prison for their business venture\nhelping others defraud the government through false money\norders. The two were already incarcerated for a separate joint\ncriminal enterprise. For the second time, Hall, who is still in\nprison, appeals a special condition of his anticipated release\nrestricting his relationship with his family. 1 Special\nCondition 11 provides that Hall “is permitted to have contact\nwith Benton [] only for normal familial relations but is\nprohibited from any contact, discussion, or communication\nconcerning financial or investment matters except matters\nlimited to defendant’s own support.” Hall objected at\nsentencing that the condition is unconstitutionally vague.\nWe agree, and strike the offending words “only for normal\nfamilial relations” from the condition.\n\n A supervised release condition “violates due process of\nlaw if it either forbids or requires the doing of an act in terms\nso vague that men of common intelligence must necessarily\nguess at its meaning and differ as to its application.” United\nStates v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (per\ncuriam) (citations and quotation marks omitted); see also\nUnited States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.\n\n 1\n In an earlier memorandum disposition, this court considered\nanother version of this condition, which, without exception for relatives,\nprohibited Hall from “associat[ing] with . . . any person convicted of a\nfelony unless granted permission to do so by the probation officer.”\nUnited States v. Hall, 681 F. App’x 621, 623–24 (9th Cir. 2017). Because\nthe trial court had imposed that condition without justifying or limiting\nthe restriction on Hall’s right to associate with his children, who had been\nconvicted of felonies, we vacated and remanded. Id.\n\f4 UNITED STATES V. HALL\n\n2015). The government cannot save an otherwise\nimpermissible condition by “promising to enforce it in a\nnarrow manner.” Id. at 1037 (alterations omitted) (quoting\nSoltero, 510 F.3d at 867 n.10). Although usually this court\n“give[s] considerable deference to a district court’s\ndetermination of the appropriate supervised release\nconditions,” United States v. Weber, 451 F.3d 552, 557 (9th\nCir. 2006), it “review[s] carefully” conditions that implicate\nthe “fundamental liberty interest in having contact with\none’s children,” United States v. Wolf Child, 699 F.3d 1082,\n1089, 1091 (9th Cir. 2012), or the defendant’s First\nAmendment rights, cf. Cal. Teachers Ass’n v. State Bd. of\nEduc., 271 F.3d 1141, 1150 (9th Cir. 2001).\n\n The phrase “normal familial relations” is susceptible to\nmany different interpretations, and so raises questions with\nno clear answers. Must relations be “normal” for that\nparticular family, or “normal” for families in general? If the\nlatter, as the government contended at oral argument, how is\na defendant to know what a “normal” family is and does, in\nlight of the tremendous diversity of family structures and\nfamily habits, customs, and activities in this country? Cf.\nJohnson v. United States, 135 S. Ct. 2551, 2557–58 (2015)\n(identifying the unconstitutional ambiguities of the Armed\nCareer Criminal Act residual clause).\n\n Further, unconventional political activities or religious\ntraditions in which a family might collectively engage may\nnot be “normal” for families in general, but they are, with\nnarrow exceptions, constitutionally protected. See, e.g.,\nEmployment Div., Dep’t of Human Res. of Oregon v. Smith,\n494 U.S. 872, 876–78 (1990); Wisconsin v. Yoder, 406 U.S.\n205, 234 (1972). Whether or not such an interpretation of the\ncondition by a probation officer or judge is likely,\n“[u]ncertain meanings inevitably lead citizens to steer far\n\f UNITED STATES V. HALL 5\n\nwider of the unlawful zone than if the boundaries of the\nforbidden areas were clearly marked.” Cal. Teachers Ass’n,\n271 F.3d at 1150 (quotation marks and citations omitted).\n\n If the district court meant only to prohibit Hall and\nBenton from participating in illegal activities together, it\ncould have said exactly that and no more, as defense counsel\nsuggested at the resentencing hearing. Notably, Hall is\ngenerally prohibited from engaging in illegal activities by his\nfirst condition of supervised release.\n\n REVERSED in part.\n[END_CASE]", "role": "user" } ]
4,581,260		United States v. Brett Depue	2019-01-14	15-10553	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Richard A. Paez, Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and Michelle T. Friedland, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 15-10553\n Plaintiff-Appellee,\n D.C. No.\n v. 2:10-cr-00121-\n RLH-RJJ-1\n BRETT DEPUE,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Nevada\n Roger L. Hunt, Senior District Judge, Presiding\n\n Submitted En Banc September 26, 2018 \n Pasadena, California\n\n Filed January 14, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and William A.\n Fletcher, Richard A. Paez, Marsha S. Berzon, Milan D.\nSmith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H.\n Nguyen, Paul J. Watford, Andrew D. Hurwitz\n and Michelle T. Friedland, Circuit Judges.\n\n Opinion by Judge Berzon\n\n \n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\f2 UNITED STATES V. DEPUE\n\n SUMMARY \n\n\n Criminal Law\n\n Affirming a conviction and sentence, the en banc court\nreaffirmed the distinction between waiver and forfeiture of\nsentencing challenges: a defendant waives his rights and\nprecludes plain error review only when there is evidence that\nhe knew of his rights at the time and nonetheless\nrelinquished them.\n\n Affirming the conviction, the en banc court adopted the\nthree-judge panel’s decision that the district court did not\nabuse its discretion when it dismissed a juror who\ncomplained of health problems during deliberations.\n\n The en banc court held that the defendant forfeited—\nrather than waived—his challenge to the Sentencing\nGuidelines calculation because nothing in the district court\nrecord suggests that the defendant considered objecting to\nthe calculation method or to any of the alleged factual\ninaccuracies he now raises. The en banc court explained that\nthe fact the defendant knew generally that he could object if\nhe recognized a mistake, or that he recognized and raised\nother errors, does not mean that he waived the right to\nchallenge the specific alleged errors he raises on appeal.\n\n Because the defendant forfeited rather than waived his\nchallenge to the district court’s Guidelines calculation, the\nen banc court evaluated whether the calculation was plain\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. DEPUE 3\n\nerror affecting substantial rights. The en banc court held that\nregardless of whether the district court’s loss calculation\nmethod was legally erroneous, the defendant has not met his\nburden to show that the alleged error affected his substantial\nrights. As to the defendant’s factual disputes underlying the\nGuidelines calculation, the en banc court was not convinced\nthat the district court’s factual errors, if any, were so\negregious as to be plainly erroneous.\n\n\n COUNSEL\n\nMario D. Valencia, Henderson, Nevada, for Defendant-\nAppellant.\n\nAdam Flake, Assistant United States Attorney; Elizabeth O.\nWhite, Appellate Chief; Steven W. Myhre, Acting United\nStates Attorney; United States Attorney’s Office, Las Vegas,\nNevada; for Plaintiff-Appellee.\n\nVincent J. Brunkow and Michael A. Marks, Federal\nDefenders of San Diego Inc., San Diego, California, for\nAmici Curiae Ninth Circuit Federal Public and Community\nDefenders.\n\nLee H. Rubin and Donald M. Falk, Mayer Brown LLP, Palo\nAlto, California, for Amicus Curiae National Association of\nCriminal Defense Lawyers.\n\f4 UNITED STATES V. DEPUE\n\n OPINION\n\nBERZON, Circuit Judge:\n\n This appeal is, as Yogi Berra did or did not say, déjà vu\nall over again. 1 We are asked to explain when a defendant is\nentitled to plain error review of challenges to his sentence\nthat he failed to raise in the district court. Our cases have\nconsistently held that a defendant waives his rights and\nprecludes plain error review only when there is evidence that\nhe knew of his rights at the time and nonetheless\nrelinquished them. Twenty-one years ago, we explained this\npoint in an en banc opinion. United States v. Perez, 116 F.3d\n840 (9th Cir. 1997) (en banc). We reaffirm today this\ndistinction between waiver and forfeiture.\n\n Depue challenges (1) the dismissal of a juror who\ncomplained of health problems during deliberations, and\n(2) the district court’s sentencing range calculations under\nthe United States Sentencing Guidelines (“Guidelines”). We\nadopt the three-judge panel’s decision that the district court\ndid not abuse its discretion when it dismissed the juror, as\nwell as the panel’s reasoning on that issue. See United States\nv. Depue, 879 F.3d 1021, 1027–28 (9th Cir. 2018).\nConfining our en banc consideration to Depue’s challenge to\nthe Guidelines calculations, we hold that Depue’s failure to\nobject to the Guidelines calculations at sentencing\nconstitutes forfeiture subject to plain error review, but that\nthere was no plain error.\n\n\n\n\n 1\n Victor Mather & Katie Rogers, Behind the Yogi-isms: Those Said\nand Unsaid, N.Y. Times (Sept. 23, 2015), https://www.nytimes.com/20\n15/09/24/sports/yogi-berra-yogi-isms-quotes-explored.html.\n\f UNITED STATES V. DEPUE 5\n\n I\n\n We recite the facts as pertinent to the issue addressed in\nthis opinion.\n\n From February 2005 to May 2007, Brett Depue\n(“Depue”) conspired to orchestrate a large-scale mortgage\nfraud scheme. The conspiracy involved recruiting\nindividuals with high credit scores to act as straw buyers of\nresidential properties in Nevada. The straw buyers allowed\nDepue to use their names and good credit to buy properties\nwith 100% financing. In exchange, they received\napproximately $5,000 for each property purchased in their\nname and the expectation of a good return on their\n“investment” in the property. To secure the financing, Depue\nand his co-conspirators prepared mortgage loan applications\ncontaining false and fraudulent information about the\nborrowers’ employment, income, assets and intent to occupy\nthe property as a primary residence.\n\n Depue and his co-conspirators employed several\nmethods to orchestrate their fraud. At first, Depue profited\nfrom third party disbursements. 2 This scheme involved using\nthe identities of straw buyers to purchase properties with\n100% financing at above the asking price, and disbursing the\ndifference to one of the several business entities Depue\noperated. Depue also employed double escrows to further his\nconspiracy. This method involved purchasing a property at\nor below the asking price and immediately reselling it to a\n\n 2\n A third party disbursement occurs when, at the closing of a\nmortgage loan, money is issued to a person or entity other than those\ntypically entitled to it, as are the seller, realtor, mortgage company,\nmortgage broker, lender, and the title and escrow company.\n\f6 UNITED STATES V. DEPUE\n\nstraw buyer at an inflated price. 3 The straw buyer’s purchase\nwas financed through a fraudulently obtained mortgage.\nDepue and his co-conspirators profited from the price\ndifference.\n\n In 2010, the government indicted Depue on eleven\ncounts of wire fraud and aiding and abetting in violation of\n18 U.S.C. §§ 2, 1343, and one count of conspiracy to commit\nbank fraud, mail fraud, and wire fraud in violation of\n18 U.S.C. § 1349. The government dismissed four of the\nwire fraud charges before the end of Depue’s first trial, and\na mistrial was declared on the remaining eight charges due\nto a hung jury.\n\n In 2012, Depue proceeded pro se in his second trial. A\njury found him guilty on all eight counts. Depue then\nappealed his conviction to this court. We held that Depue’s\nwaiver of his right to counsel had not been sufficiently\nknowing and intelligent, and so vacated Depue’s convictions\nand remanded for a new trial. United States v. Depue, 595 F.\nApp’x 732, 734 (9th Cir. 2015).\n\n Depue again proceeded pro se in his third trial, held in\nJuly 2015. He called no witnesses and made no opening or\nclosing statements. Depue did not challenge the\ngovernment’s evidence or question its witnesses. Again, he\nwas convicted on all eight counts.\n\n Under the Guidelines, the recommended sentencing\nrange for a convicted defendant is a function of the\ndefendant’s total offense level and criminal history category.\n 3\n At first, the initial purchase of the property was funded by a hard\nmoney lender who would be repaid after Depue resold the property.\nLater, Depue eliminated the need for a hard money lender by conducting\nthe purchasing and reselling of the property at the same time.\n\f UNITED STATES V. DEPUE 7\n\nThe sentencing court calculates a defendant’s total offense\nlevel by identifying the base offense level and increasing that\noffense level based on specific characteristics of the offense.\nU.S.S.G. § 2B1.1. For certain economic offenses, including\nthose for which Depue was convicted, the offense level is\nincreased from the base offense level based on the amount\nof economic loss resulting from the offense. U.S.S.G.\n§ 2B1.1(b)(1).\n\n Prior to Depue’s sentencing hearing, the government\nfiled a Sentencing Memorandum, which calculated Depue’s\ntotal offense level as 39. The calculation was based largely\non a determination that Depue’s offenses resulted in a loss\ngreater than $25 million. For losses between $25 and\n$65 million, the Guidelines instruct the court to add 22\noffense levels to the base offense level. U.S.S.G.\n§ 2B1.1(b)(1)(L).\n\n To arrive at the loss figure, the government submitted\nevidence that, as part of the mortgage fraud, Depue and his\nco-conspirators had purchased 106 properties at a total price\nof $55,070,000. The government asserted that because the\nvast majority of these properties were purchased with 100%\nfinancing, the total purchase price equaled the total amount\nthat Depue and his co-conspirators borrowed from banks.\nThe banks eventually foreclosed on the properties and sold\nthem for a total of $29,581,950. The Sentencing\nMemorandum therefore calculated the total loss to the banks\nas the difference between the total purchase and sales prices:\n$25,488,050. The Sentencing Memorandum calculated\nDepue’s criminal history category as I, and concluded that\nthe Guidelines recommended sentencing range was 262–327\nmonths.\n\n At his sentencing hearing, Depue did not object to the\nPre-Sentence Report’s (“PSR”) calculation method, which\n\f8 UNITED STATES V. DEPUE\n\nwas the same as the method used by the government in its\nSentencing Memorandum. The trial judge asked Depue if\nthere were any errors in the PSR. Depue mentioned only his\nqualms about the dates of incarceration reported in the PSR\nand stated, “Other than that, the rest of [the PSR] appeared\nto be correct.” After clarifying his incarceration dates, Depue\nagain stated, “everything else appears to be accurate.” The\ntrial judge gave Depue a second opportunity to “comment”\nat sentencing, but Depue did not do so.\n\n After calculating the Guidelines range using the same\nmethod as in the PSR and Sentencing Memorandum, the\ndistrict court sentenced Depue to concurrent terms of\nimprisonment: 262 months on Count One; 240 months, each,\non Counts Two, Three, Four, Five, Six, Seven, and Ten. The\ndistrict court also imposed restitution in the amount of\n$1,567,429.93; five years’ supervised release; and an\n$800 assessment fee. Depue timely appealed.\n\n On appeal before a three-judge panel, Depue challenged\n(1) the dismissal of Juror No. 9 during deliberations, who\ncomplained of health problems because he suspected that he\nhad been poisoned by another juror; and (2) the district\ncourt’s Guidelines sentencing range calculations. With\nrespect to the Guidelines challenge, Depue argued that the\ndistrict court employed the wrong calculation method by\ncalculating the actual loss from the conspiracy based on the\nsales price of the properties rather than on the loan principals\nfor the mortgages he and his co-conspirators fraudulently\nobtained. He also argued that certain properties should not\nbe included in the loss calculation because they were double-\ncounted, displayed mistaken sales prices, or were not part of\nthe mortgage-fraud conspiracy.\n\n The three-judge panel affirmed the district court, holding\nthat it did not abuse its discretion in dismissing the juror and\n\f UNITED STATES V. DEPUE 9\n\nthat Depue affirmatively waived his right to challenge the\nalleged Guidelines errors. Depue, 879 F.3d at 1029. A\nmajority of the active, non-recused judges of this court voted\nin favor of rehearing en banc. Having adopted the three-\njudge panel’s decision and reasoning regarding the juror\ndismissal question, we consider Depue’s Guidelines\nchallenge anew.\n\n II\n\n A.\n\n Depue argues that the district court made numerous\nerrors in the calculation of the loss amount from his offenses,\nwhich resulted in a 22-level enhancement to his Guidelines\nsentencing range. Because Depue did not object to any\nalleged Guidelines errors during his trial or sentencing, we\napply plain error review. See United States v. Olano,\n507 U.S. 725, 731–35 (1993); United States v. Hammons,\n558 F.3d 1100, 1103 (9th Cir. 2009); see also Fed. R. Crim.\nP. 52(b) (“A plain error that affects substantial rights may be\nconsidered even though it was not brought to the court’s\nattention.”). 4\n\n\n 4\n Depue argues that we are not limited to the plain error standard\nwhen the issue presented is a pure question of law. See United States v.\nTorres, 828 F.3d 1113, 1123 (9th Cir. 2016). But see United States v.\nYijun Zhou, 838 F.3d 1007, 1015–17 (9th Cir. 2016) (Graber, J.,\nconcurring) (suggesting that the “pure question of law” exception to\nplain error review should be reconsidered). We need not address whether\nthe “pure question of law” exception applies, or whether it should be\nreconsidered, as it is not pertinent here. Depue’s argument that the\ndistrict court used the wrong method to calculate the total loss amount is\na mixed question of law and fact, not a pure question of law. He claims\nthat the sales-price method was not a “reasonable estimate of the loss,”\nU.S.S.G. § 2B1.1, cmt. 3(C), based on the loan information available in\n\f10 UNITED STATES V. DEPUE\n\n The general requirements of plain error review are\nfamiliar enough. “Plain error is (1) error, (2) that is plain,\nand (3) that affects substantial rights.” Hammons, 558 F.3d\nat 1103 (internal quotation marks omitted) (quoting United\nStates v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en\nbanc)). If these conditions are met, the reviewing court has\nthe discretion to grant relief so long as the error “seriously\naffects the fairness, integrity, or public reputation of judicial\nproceedings.” Id.\n\n As a threshold matter, to constitute “error” under the first\nrequirement, a defendant’s claim or objection must not be\n“intentionally relinquished or abandoned.” Molina-Martinez\nv. United States, 136 S. Ct. 1338, 1343 (2016). Otherwise,\nthe defendant has affirmatively acquiesced to the district\ncourt’s ruling, and the district court made no error, plain or\notherwise. See Olano, 507 U.S. at 732–34. Thus, forfeited\nclaims are reviewed for plain error, while waiver precludes\nappellate review altogether. We write to clarify this long-\nestablished distinction specifically in the sentencing context.\n\n B.\n\n The Supreme Court made clear a quarter-century ago\nthat “[w]aiver is different from forfeiture. Whereas forfeiture\nis the failure to make the timely assertion of a right, waiver\nis the ‘intentional relinquishment or abandonment of a\nknown right.’” Id. at 733 (emphasis added) (quoting Johnson\nv. Zerbst, 304 U.S. 458, 464 (1938)).\n\n\nthis case. See Yijun Zhou, 838 F.3d at 1012 (majority opinion)\n(concluding that de novo review of a forfeited Guidelines challenge is\nnot appropriate where “[d]efendant’s argument requires that we apply\nthe legal standard in the [statute] to the particular factual details in the\nrecord”).\n\f UNITED STATES V. DEPUE 11\n\n We elaborated on the knowledge requirement for waiver\nin United States v. Perez, 116 F.3d at 840. Perez held that a\ndefendant forfeited, as opposed to waived, his right to appeal\nan erroneous jury instruction even though his attorney\nsubmitted the instructions at trial. Id. at 845–46. Perez so\nconcluded because there was no “evidence in the record that\nthe defendant was aware of . . . the relinquished or\nabandoned right.” Id. at 845. Although defense counsel\nsubmitted the erroneous instructions, there was no indication\nthat counsel knew what the correct instructions would have\nbeen and, “for some tactical or other reason,” did not submit\nthem. Id. Perez explained that waiver occurs when a\ndefendant “considered the controlling law, . . . and, in spite\nof being aware of the applicable law,” relinquished his right.\nId.\n\n Under Perez, a failure to object or an uninformed\nrepresentation to the court is not alone sufficient evidence of\nwaiver. Rather, there must be evidence that the defendant\nwas aware of the right he was relinquishing and relinquished\nit anyway. Id. Absent such evidence, failure to preserve a\nclaim constitutes forfeiture subject to plain error review.\n\n Since Perez, we have routinely applied plain error\nreview to sentencing determinations when defendants have\nfailed to object to the district court’s sentencing\ncalculations—or even affirmatively endorsed them—as long\nas the actual evidence of knowing relinquishment required\nby Perez was absent. See, e.g., United States v. Alvirez,\n831 F.3d 1115, 1126 (9th Cir. 2016); United States v.\nGallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013);\nHammons, 558 F.3d at 1103; United States v. Waknine,\n543 F.3d 546, 551 (9th Cir. 2008); United States v. Jimenez,\n258 F.3d 1120, 1123–24 (9th Cir. 2001). The critical\nquestion has been whether there was evidence indicating the\n\f12 UNITED STATES V. DEPUE\n\ndefendants knew of their rights and chose to relinquish them\nanyway.\n\n For example, United States v. Jimenez held that a\ndefendant who “confirmed the accuracy of the PSR” had\nforfeited, not waived, his right to appeal the district court’s\nsentencing errors. 258 F.3d at 1124. Jimenez argued that the\ndistrict court’s reliance on the PSR was erroneous because\nthe PSR did not specify the statute of conviction for his\noffense. Id. at 1125–26. We held that plain error review was\navailable because “[t]here is no evidence that Jimenez knew\nof any requirement that the statute of conviction had to be\ncited in the PSR or that he considered objecting at the\nhearing, but ‘for some tactical or other reason rejected the\nidea.’” Id. at 1124 (quoting Perez, 116 F.3d at 845); see also\nUnited States v. Potter, 895 F.2d 1231, 1238–39 & n.6 (9th\nCir.1990) (reviewing challenge to PSR for plain error where\ndefense counsel “agreed with the prosecutor and the court to\nproceed on the basis of the [PSR]” at sentencing).\n\n This case is precisely parallel to Jimenez. Like the\ndefendant in that case, Depue did not object to the accuracy\nof the PSR with respect to the alleged errors he now raises\non appeal. Apart from mentioning that the PSR misstated his\nprevious dates of incarceration, Depue stated that “the rest\nof [the PSR] appeared to be correct.” Similarly, the record is\ndevoid of any evidence that Depue knew of the errors he now\nasserts, much less that he intended to relinquish them.\n\n Although Depue did object to the dates of incarceration\nin the PSR, his doing so is not evidence that he was aware of\nand considered objecting to other alleged errors, but “for\nsome tactical or other reason, rejected the idea.” Perez,\n116 F.3d at 845. The relevant question is whether Depue\nknew the substantive legal rules underlying the particular\nchallenges to the Guidelines calculation he raises on appeal,\n\f UNITED STATES V. DEPUE 13\n\nand knew that the district court’s calculation violated those\nrules. See Jimenez, 258 F.3d at 1124 (“There is no evidence\nthat Jimenez knew of any requirement that the statute of\nconviction had to be cited in the PSR . . . .”); Perez, 116 F.3d\nat 845 (“[T]he record reveals that neither defendants, the\ngovernment, nor the court was aware of Mendoza’s\nrequirement that the ‘in relation to’ element be submitted to\nthe jury.” (citing United States v. Mendoza, 11 F.3d 126, 128\n(9th Cir. 1993))). The evidence indicates he did not. Nothing\nin the record suggests that Depue considered objecting to the\ncalculation method or to any of the alleged factual\ninaccuracies he raises now. The fact that Depue knew\ngenerally that he could object if he recognized a mistake, or\nthat he recognized and raised other errors, does not mean that\nhe waived the right to challenge the specific alleged errors\nhe raises on appeal.\n\n We therefore hold that Depue forfeited—rather than\nwaived—his challenge to the sentencing calculation on\nappeal. In doing so, we underscore that the distinction\nbetween waiver and forfeiture is particularly important in the\nsentencing context. By requiring evidence that a waiver is\nknowing, and therefore permitting plain error review when\nsuch evidence is absent, we preserve our ability to review\nsentencing errors even if the parties were not diligent or\nknowledgeable enough to identify them during sentencing.\nThe Sentencing Guidelines “are complex, and so there will\nbe instances when a district court’s sentencing of a defendant\nwithin the framework of an incorrect Guidelines range goes\nunnoticed.” Molina-Martinez, 136 S. Ct. at 1342–43; see\nalso Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904\n(2018). The risk is heightened where, as in this case, the\ndefendant proceeds pro se. Although a district court will\noften ask whether the parties object to its Guidelines\ncalculations, it “has the ultimate responsibility to ensure that\n\f14 UNITED STATES V. DEPUE\n\nthe Guidelines range it considers is correct.” Rosales-\nMireles, 138 S. Ct. at 1904. As the Supreme Court has\nexplained, uncorrected Guidelines errors risk depriving\ndefendants of liberty beyond what is necessary to serve the\npurposes of punishment. See id. at 1908. Such errors also\nundermine the United States Sentencing Commission’s (“the\nCommission”) ability to revise the Guidelines to ensure\ncertainty and fairness in the sentencing process more\nbroadly, because the Commission relies on data from\nindividual sentencing proceedings to amend the Guidelines.\nId. Attention to the distinction between forfeiture and\nwaiver—which results in a distinction between plain error\nappellate review and no appellate review—is thus of special\nsalience in the sentencing context.\n\n C.\n\n Because we hold that Depue forfeited his challenge to\nthe district court’s Guidelines calculation, we evaluate\nwhether the calculation was plain error affecting Depue’s\nsubstantial rights. Fed. R. Crim. P. 52(b); Hammons,\n558 F.3d at 1103. We conclude that, except for the absence\nof waiver, the plain error requirements are not met.\n\n “An error is plain if it is ‘contrary to the law at the time\nof appeal . . . .’” Ameline, 409 F.3d at 1078 (alteration in\noriginal) (quoting Johnson v. United States, 520 U.S. 461,\n468 (1997)). It affects substantial rights if the defendant can\n“demonstrate a reasonable probability that [he] would have\nreceived a different sentence if the district court had not\nerred.” United States v. Joseph, 716 F.3d 1273, 1280 (9th\nCir. 2013) (alteration in original) (internal quotation marks\nomitted) (quoting United States v. Tapia, 665 F.3d 1059,\n1061 (9th Cir. 2011)).\n\f UNITED STATES V. DEPUE 15\n\n Depue’s primary objection to the Guidelines calculation\nis that the district court erred by calculating the actual loss\nfrom the conspiracy based on the sales price of the purchased\nproperties, rather than on the loan principals of the\nmortgages he and his co-conspirators fraudulently obtained.\nRegardless of whether the district court’s loss calculation\nmethod was legally erroneous, Depue has not met his burden\nto show that the alleged error affected his substantial rights.\n\n “When a defendant is sentenced under an incorrect\nGuidelines range . . . the error itself . . . most often will[] be\nsufficient to show a reasonable probability of a different\noutcome absent the error.” Molina-Martinez, 136 S. Ct. at\n1345. But here, the evidence is insufficient to demonstrate\nthat a different method would have generated a lower\nGuidelines range, and so does not show “a reasonable\nprobability of a different outcome.” Id.\n\n According to the Guidelines, a 22-level enhancement is\nappropriate for fraud causing a loss between $25 million and\n$65 million. U.S.S.G. § 2B1.1(b)(1)(L). Based on evidence\nsubmitted by the government, the total loss as calculated\nusing the sales price of the properties amounted to\n$25,488,050. Depue has only provided evidence that the\nallegedly erroneous calculation method resulted in over-\ncounting the loss on one property by $20,250, far less than\nwhat he must show to demonstrate that the 22-level\nenhancement is incorrect. He has not shown that the\ncalculation method resulted in over-counting the loss on\nother properties; any possibility that it did so is speculative.\nSee Jones v. United States, 527 U.S. 373, 394–95 (1999)\n(“Where the effect of an alleged error is so uncertain, a\ndefendant cannot meet his burden of showing that the error\nactually affected his substantial rights.”).\n\f16 UNITED STATES V. DEPUE\n\n In fact, Depue seems to recognize that a loan-principal\ncalculation method would not yield a significantly different\ncalculation. He acknowledges that the “vast majority” of the\nproperties involved in the scheme were purchased with\n100% financing, and so the principal amount of the loan\nwould be approximately equal to the sales price.\n\n Depue’s remaining claims amount to factual disputes\nunderlying the Guidelines calculation. He argues that certain\nproperties should not be included in the loss calculation\nbecause they were double-counted, displayed mistaken sales\nprices, or were not part of the mortgage-fraud conspiracy.\nUnless extreme, “an error that hinges on a factual dispute is\nnot ‘obvious’ as required by the ‘plain error’ standard.” Yijun\nZhou, 838 F.3d at 1011; see also United States v. Scrivner,\n114 F.3d 964, 968–70 (9th Cir. 1997). We are not convinced\nthat the district court’s factual errors, if any, were so\negregious as to be plainly erroneous.\n\n III\n\n Because the record does not indicate that Depue\nknowingly relinquished his right to appeal the alleged\nGuidelines errors, we apply plain error review to his\nforfeited claims. However, Depue has not demonstrated that\nthe district court committed plain error affecting his\nsubstantial rights. We therefore affirm Depue’s conviction\nand sentence.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358513/", "author_raw": "BERZON, Circuit Judge:"}]}	SIDNEY R THOMAS	WILLIAM A FLETCHER	RICHARD A PAEZ	2	MARSHA S BERZON; MILAN D SMITH JR; SANDRA S IKUTA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; PAUL J WATFORD; ANDREW D HURWITZ; MICHELLE T FRIEDLAND	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581260/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Brett Depue\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 15-10553\n Plaintiff-Appellee,\n D.C. No.\n v. 2:10-cr-00121-\n RLH-RJJ-1\n BRETT DEPUE,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Nevada\n Roger L. Hunt, Senior District Judge, Presiding\n\n Submitted En Banc September 26, 2018 \n Pasadena, California\n\n Filed January 14, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and William A.\n Fletcher, Richard A. Paez, Marsha S. Berzon, Milan D.\nSmith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H.\n Nguyen, Paul J. Watford, Andrew D. Hurwitz\n and Michelle T. Friedland, Circuit Judges.\n\n Opinion by Judge Berzon\n\n \n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\f2 UNITED STATES V. DEPUE\n\n SUMMARY \n\n\n Criminal Law\n\n Affirming a conviction and sentence, the en banc court\nreaffirmed the distinction between waiver and forfeiture of\nsentencing challenges: a defendant waives his rights and\nprecludes plain error review only when there is evidence that\nhe knew of his rights at the time and nonetheless\nrelinquished them.\n\n Affirming the conviction, the en banc court adopted the\nthree-judge panel’s decision that the district court did not\nabuse its discretion when it dismissed a juror who\ncomplained of health problems during deliberations.\n\n The en banc court held that the defendant forfeited—\nrather than waived—his challenge to the Sentencing\nGuidelines calculation because nothing in the district court\nrecord suggests that the defendant considered objecting to\nthe calculation method or to any of the alleged factual\ninaccuracies he now raises. The en banc court explained that\nthe fact the defendant knew generally that he could object if\nhe recognized a mistake, or that he recognized and raised\nother errors, does not mean that he waived the right to\nchallenge the specific alleged errors he raises on appeal.\n\n Because the defendant forfeited rather than waived his\nchallenge to the district court’s Guidelines calculation, the\nen banc court evaluated whether the calculation was plain\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. DEPUE 3\n\nerror affecting substantial rights. The en banc court held that\nregardless of whether the district court’s loss calculation\nmethod was legally erroneous, the defendant has not met his\nburden to show that the alleged error affected his substantial\nrights. As to the defendant’s factual disputes underlying the\nGuidelines calculation, the en banc court was not convinced\nthat the district court’s factual errors, if any, were so\negregious as to be plainly erroneous.\n\n\n COUNSEL\n\nMario D. Valencia, Henderson, Nevada, for Defendant-\nAppellant.\n\nAdam Flake, Assistant United States Attorney; Elizabeth O.\nWhite, Appellate Chief; Steven W. Myhre, Acting United\nStates Attorney; United States Attorney’s Office, Las Vegas,\nNevada; for Plaintiff-Appellee.\n\nVincent J. Brunkow and Michael A. Marks, Federal\nDefenders of San Diego Inc., San Diego, California, for\nAmici Curiae Ninth Circuit Federal Public and Community\nDefenders.\n\nLee H. Rubin and Donald M. Falk, Mayer Brown LLP, Palo\nAlto, California, for Amicus Curiae National Association of\nCriminal Defense Lawyers.\n\f4 UNITED STATES V. DEPUE\n\n OPINION\n\nBERZON, Circuit Judge:\n\n This appeal is, as Yogi Berra did or did not say, déjà vu\nall over again. 1 We are asked to explain when a defendant is\nentitled to plain error review of challenges to his sentence\nthat he failed to raise in the district court. Our cases have\nconsistently held that a defendant waives his rights and\nprecludes plain error review only when there is evidence that\nhe knew of his rights at the time and nonetheless\nrelinquished them. Twenty-one years ago, we explained this\npoint in an en banc opinion. United States v. Perez, 116 F.3d\n840 (9th Cir. 1997) (en banc). We reaffirm today this\ndistinction between waiver and forfeiture.\n\n Depue challenges (1) the dismissal of a juror who\ncomplained of health problems during deliberations, and\n(2) the district court’s sentencing range calculations under\nthe United States Sentencing Guidelines (“Guidelines”). We\nadopt the three-judge panel’s decision that the district court\ndid not abuse its discretion when it dismissed the juror, as\nwell as the panel’s reasoning on that issue. See United States\nv. Depue, 879 F.3d 1021, 1027–28 (9th Cir. 2018).\nConfining our en banc consideration to Depue’s challenge to\nthe Guidelines calculations, we hold that Depue’s failure to\nobject to the Guidelines calculations at sentencing\nconstitutes forfeiture subject to plain error review, but that\nthere was no plain error.\n\n\n\n\n 1\n Victor Mather & Katie Rogers, Behind the Yogi-isms: Those Said\nand Unsaid, N.Y. Times (Sept. 23, 2015), https://www.nytimes.com/20\n15/09/24/sports/yogi-berra-yogi-isms-quotes-explored.html.\n\f UNITED STATES V. DEPUE 5\n\n I\n\n We recite the facts as pertinent to the issue addressed in\nthis opinion.\n\n From February 2005 to May 2007, Brett Depue\n(“Depue”) conspired to orchestrate a large-scale mortgage\nfraud scheme. The conspiracy involved recruiting\nindividuals with high credit scores to act as straw buyers of\nresidential properties in Nevada. The straw buyers allowed\nDepue to use their names and good credit to buy properties\nwith 100% financing. In exchange, they received\napproximately $5,000 for each property purchased in their\nname and the expectation of a good return on their\n“investment” in the property. To secure the financing, Depue\nand his co-conspirators prepared mortgage loan applications\ncontaining false and fraudulent information about the\nborrowers’ employment, income, assets and intent to occupy\nthe property as a primary residence.\n\n Depue and his co-conspirators employed several\nmethods to orchestrate their fraud. At first, Depue profited\nfrom third party disbursements. 2 This scheme involved using\nthe identities of straw buyers to purchase properties with\n100% financing at above the asking price, and disbursing the\ndifference to one of the several business entities Depue\noperated. Depue also employed double escrows to further his\nconspiracy. This method involved purchasing a property at\nor below the asking price and immediately reselling it to a\n\n 2\n A third party disbursement occurs when, at the closing of a\nmortgage loan, money is issued to a person or entity other than those\ntypically entitled to it, as are the seller, realtor, mortgage company,\nmortgage broker, lender, and the title and escrow company.\n\f6 UNITED STATES V. DEPUE\n\nstraw buyer at an inflated price. 3 The straw buyer’s purchase\nwas financed through a fraudulently obtained mortgage.\nDepue and his co-conspirators profited from the price\ndifference.\n\n In 2010, the government indicted Depue on eleven\ncounts of wire fraud and aiding and abetting in violation of\n18 U.S.C. §§ 2, 1343, and one count of conspiracy to commit\nbank fraud, mail fraud, and wire fraud in violation of\n18 U.S.C. § 1349. The government dismissed four of the\nwire fraud charges before the end of Depue’s first trial, and\na mistrial was declared on the remaining eight charges due\nto a hung jury.\n\n In 2012, Depue proceeded pro se in his second trial. A\njury found him guilty on all eight counts. Depue then\nappealed his conviction to this court. We held that Depue’s\nwaiver of his right to counsel had not been sufficiently\nknowing and intelligent, and so vacated Depue’s convictions\nand remanded for a new trial. United States v. Depue, 595 F.\nApp’x 732, 734 (9th Cir. 2015).\n\n Depue again proceeded pro se in his third trial, held in\nJuly 2015. He called no witnesses and made no opening or\nclosing statements. Depue did not challenge the\ngovernment’s evidence or question its witnesses. Again, he\nwas convicted on all eight counts.\n\n Under the Guidelines, the recommended sentencing\nrange for a convicted defendant is a function of the\ndefendant’s total offense level and criminal history category.\n 3\n At first, the initial purchase of the property was funded by a hard\nmoney lender who would be repaid after Depue resold the property.\nLater, Depue eliminated the need for a hard money lender by conducting\nthe purchasing and reselling of the property at the same time.\n\f UNITED STATES V. DEPUE 7\n\nThe sentencing court calculates a defendant’s total offense\nlevel by identifying the base offense level and increasing that\noffense level based on specific characteristics of the offense.\nU.S.S.G. § 2B1.1. For certain economic offenses, including\nthose for which Depue was convicted, the offense level is\nincreased from the base offense level based on the amount\nof economic loss resulting from the offense. U.S.S.G.\n§ 2B1.1(b)(1).\n\n Prior to Depue’s sentencing hearing, the government\nfiled a Sentencing Memorandum, which calculated Depue’s\ntotal offense level as 39. The calculation was based largely\non a determination that Depue’s offenses resulted in a loss\ngreater than $25 million. For losses between $25 and\n$65 million, the Guidelines instruct the court to add 22\noffense levels to the base offense level. U.S.S.G.\n§ 2B1.1(b)(1)(L).\n\n To arrive at the loss figure, the government submitted\nevidence that, as part of the mortgage fraud, Depue and his\nco-conspirators had purchased 106 properties at a total price\nof $55,070,000. The government asserted that because the\nvast majority of these properties were purchased with 100%\nfinancing, the total purchase price equaled the total amount\nthat Depue and his co-conspirators borrowed from banks.\nThe banks eventually foreclosed on the properties and sold\nthem for a total of $29,581,950. The Sentencing\nMemorandum therefore calculated the total loss to the banks\nas the difference between the total purchase and sales prices:\n$25,488,050. The Sentencing Memorandum calculated\nDepue’s criminal history category as I, and concluded that\nthe Guidelines recommended sentencing range was 262–327\nmonths.\n\n At his sentencing hearing, Depue did not object to the\nPre-Sentence Report’s (“PSR”) calculation method, which\n\f8 UNITED STATES V. DEPUE\n\nwas the same as the method used by the government in its\nSentencing Memorandum. The trial judge asked Depue if\nthere were any errors in the PSR. Depue mentioned only his\nqualms about the dates of incarceration reported in the PSR\nand stated, “Other than that, the rest of [the PSR] appeared\nto be correct.” After clarifying his incarceration dates, Depue\nagain stated, “everything else appears to be accurate.” The\ntrial judge gave Depue a second opportunity to “comment”\nat sentencing, but Depue did not do so.\n\n After calculating the Guidelines range using the same\nmethod as in the PSR and Sentencing Memorandum, the\ndistrict court sentenced Depue to concurrent terms of\nimprisonment: 262 months on Count One; 240 months, each,\non Counts Two, Three, Four, Five, Six, Seven, and Ten. The\ndistrict court also imposed restitution in the amount of\n$1,567,429.93; five years’ supervised release; and an\n$800 assessment fee. Depue timely appealed.\n\n On appeal before a three-judge panel, Depue challenged\n(1) the dismissal of Juror No. 9 during deliberations, who\ncomplained of health problems because he suspected that he\nhad been poisoned by another juror; and (2) the district\ncourt’s Guidelines sentencing range calculations. With\nrespect to the Guidelines challenge, Depue argued that the\ndistrict court employed the wrong calculation method by\ncalculating the actual loss from the conspiracy based on the\nsales price of the properties rather than on the loan principals\nfor the mortgages he and his co-conspirators fraudulently\nobtained. He also argued that certain properties should not\nbe included in the loss calculation because they were double-\ncounted, displayed mistaken sales prices, or were not part of\nthe mortgage-fraud conspiracy.\n\n The three-judge panel affirmed the district court, holding\nthat it did not abuse its discretion in dismissing the juror and\n\f UNITED STATES V. DEPUE 9\n\nthat Depue affirmatively waived his right to challenge the\nalleged Guidelines errors. Depue, 879 F.3d at 1029. A\nmajority of the active, non-recused judges of this court voted\nin favor of rehearing en banc. Having adopted the three-\njudge panel’s decision and reasoning regarding the juror\ndismissal question, we consider Depue’s Guidelines\nchallenge anew.\n\n II\n\n A.\n\n Depue argues that the district court made numerous\nerrors in the calculation of the loss amount from his offenses,\nwhich resulted in a 22-level enhancement to his Guidelines\nsentencing range. Because Depue did not object to any\nalleged Guidelines errors during his trial or sentencing, we\napply plain error review. See United States v. Olano,\n507 U.S. 725, 731–35 (1993); United States v. Hammons,\n558 F.3d 1100, 1103 (9th Cir. 2009); see also Fed. R. Crim.\nP. 52(b) (“A plain error that affects substantial rights may be\nconsidered even though it was not brought to the court’s\nattention.”). 4\n\n\n 4\n Depue argues that we are not limited to the plain error standard\nwhen the issue presented is a pure question of law. See United States v.\nTorres, 828 F.3d 1113, 1123 (9th Cir. 2016). But see United States v.\nYijun Zhou, 838 F.3d 1007, 1015–17 (9th Cir. 2016) (Graber, J.,\nconcurring) (suggesting that the “pure question of law” exception to\nplain error review should be reconsidered). We need not address whether\nthe “pure question of law” exception applies, or whether it should be\nreconsidered, as it is not pertinent here. Depue’s argument that the\ndistrict court used the wrong method to calculate the total loss amount is\na mixed question of law and fact, not a pure question of law. He claims\nthat the sales-price method was not a “reasonable estimate of the loss,”\nU.S.S.G. § 2B1.1, cmt. 3(C), based on the loan information available in\n\f10 UNITED STATES V. DEPUE\n\n The general requirements of plain error review are\nfamiliar enough. “Plain error is (1) error, (2) that is plain,\nand (3) that affects substantial rights.” Hammons, 558 F.3d\nat 1103 (internal quotation marks omitted) (quoting United\nStates v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en\nbanc)). If these conditions are met, the reviewing court has\nthe discretion to grant relief so long as the error “seriously\naffects the fairness, integrity, or public reputation of judicial\nproceedings.” Id.\n\n As a threshold matter, to constitute “error” under the first\nrequirement, a defendant’s claim or objection must not be\n“intentionally relinquished or abandoned.” Molina-Martinez\nv. United States, 136 S. Ct. 1338, 1343 (2016). Otherwise,\nthe defendant has affirmatively acquiesced to the district\ncourt’s ruling, and the district court made no error, plain or\notherwise. See Olano, 507 U.S. at 732–34. Thus, forfeited\nclaims are reviewed for plain error, while waiver precludes\nappellate review altogether. We write to clarify this long-\nestablished distinction specifically in the sentencing context.\n\n B.\n\n The Supreme Court made clear a quarter-century ago\nthat “[w]aiver is different from forfeiture. Whereas forfeiture\nis the failure to make the timely assertion of a right, waiver\nis the ‘intentional relinquishment or abandonment of a\nknown right.’” Id. at 733 (emphasis added) (quoting Johnson\nv. Zerbst, 304 U.S. 458, 464 (1938)).\n\n\nthis case. See Yijun Zhou, 838 F.3d at 1012 (majority opinion)\n(concluding that de novo review of a forfeited Guidelines challenge is\nnot appropriate where “[d]efendant’s argument requires that we apply\nthe legal standard in the [statute] to the particular factual details in the\nrecord”).\n\f UNITED STATES V. DEPUE 11\n\n We elaborated on the knowledge requirement for waiver\nin United States v. Perez, 116 F.3d at 840. Perez held that a\ndefendant forfeited, as opposed to waived, his right to appeal\nan erroneous jury instruction even though his attorney\nsubmitted the instructions at trial. Id. at 845–46. Perez so\nconcluded because there was no “evidence in the record that\nthe defendant was aware of . . . the relinquished or\nabandoned right.” Id. at 845. Although defense counsel\nsubmitted the erroneous instructions, there was no indication\nthat counsel knew what the correct instructions would have\nbeen and, “for some tactical or other reason,” did not submit\nthem. Id. Perez explained that waiver occurs when a\ndefendant “considered the controlling law, . . . and, in spite\nof being aware of the applicable law,” relinquished his right.\nId.\n\n Under Perez, a failure to object or an uninformed\nrepresentation to the court is not alone sufficient evidence of\nwaiver. Rather, there must be evidence that the defendant\nwas aware of the right he was relinquishing and relinquished\nit anyway. Id. Absent such evidence, failure to preserve a\nclaim constitutes forfeiture subject to plain error review.\n\n Since Perez, we have routinely applied plain error\nreview to sentencing determinations when defendants have\nfailed to object to the district court’s sentencing\ncalculations—or even affirmatively endorsed them—as long\nas the actual evidence of knowing relinquishment required\nby Perez was absent. See, e.g., United States v. Alvirez,\n831 F.3d 1115, 1126 (9th Cir. 2016); United States v.\nGallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013);\nHammons, 558 F.3d at 1103; United States v. Waknine,\n543 F.3d 546, 551 (9th Cir. 2008); United States v. Jimenez,\n258 F.3d 1120, 1123–24 (9th Cir. 2001). The critical\nquestion has been whether there was evidence indicating the\n\f12 UNITED STATES V. DEPUE\n\ndefendants knew of their rights and chose to relinquish them\nanyway.\n\n For example, United States v. Jimenez held that a\ndefendant who “confirmed the accuracy of the PSR” had\nforfeited, not waived, his right to appeal the district court’s\nsentencing errors. 258 F.3d at 1124. Jimenez argued that the\ndistrict court’s reliance on the PSR was erroneous because\nthe PSR did not specify the statute of conviction for his\noffense. Id. at 1125–26. We held that plain error review was\navailable because “[t]here is no evidence that Jimenez knew\nof any requirement that the statute of conviction had to be\ncited in the PSR or that he considered objecting at the\nhearing, but ‘for some tactical or other reason rejected the\nidea.’” Id. at 1124 (quoting Perez, 116 F.3d at 845); see also\nUnited States v. Potter, 895 F.2d 1231, 1238–39 & n.6 (9th\nCir.1990) (reviewing challenge to PSR for plain error where\ndefense counsel “agreed with the prosecutor and the court to\nproceed on the basis of the [PSR]” at sentencing).\n\n This case is precisely parallel to Jimenez. Like the\ndefendant in that case, Depue did not object to the accuracy\nof the PSR with respect to the alleged errors he now raises\non appeal. Apart from mentioning that the PSR misstated his\nprevious dates of incarceration, Depue stated that “the rest\nof [the PSR] appeared to be correct.” Similarly, the record is\ndevoid of any evidence that Depue knew of the errors he now\nasserts, much less that he intended to relinquish them.\n\n Although Depue did object to the dates of incarceration\nin the PSR, his doing so is not evidence that he was aware of\nand considered objecting to other alleged errors, but “for\nsome tactical or other reason, rejected the idea.” Perez,\n116 F.3d at 845. The relevant question is whether Depue\nknew the substantive legal rules underlying the particular\nchallenges to the Guidelines calculation he raises on appeal,\n\f UNITED STATES V. DEPUE 13\n\nand knew that the district court’s calculation violated those\nrules. See Jimenez, 258 F.3d at 1124 (“There is no evidence\nthat Jimenez knew of any requirement that the statute of\nconviction had to be cited in the PSR . . . .”); Perez, 116 F.3d\nat 845 (“[T]he record reveals that neither defendants, the\ngovernment, nor the court was aware of Mendoza’s\nrequirement that the ‘in relation to’ element be submitted to\nthe jury.” (citing United States v. Mendoza, 11 F.3d 126, 128\n(9th Cir. 1993))). The evidence indicates he did not. Nothing\nin the record suggests that Depue considered objecting to the\ncalculation method or to any of the alleged factual\ninaccuracies he raises now. The fact that Depue knew\ngenerally that he could object if he recognized a mistake, or\nthat he recognized and raised other errors, does not mean that\nhe waived the right to challenge the specific alleged errors\nhe raises on appeal.\n\n We therefore hold that Depue forfeited—rather than\nwaived—his challenge to the sentencing calculation on\nappeal. In doing so, we underscore that the distinction\nbetween waiver and forfeiture is particularly important in the\nsentencing context. By requiring evidence that a waiver is\nknowing, and therefore permitting plain error review when\nsuch evidence is absent, we preserve our ability to review\nsentencing errors even if the parties were not diligent or\nknowledgeable enough to identify them during sentencing.\nThe Sentencing Guidelines “are complex, and so there will\nbe instances when a district court’s sentencing of a defendant\nwithin the framework of an incorrect Guidelines range goes\nunnoticed.” Molina-Martinez, 136 S. Ct. at 1342–43; see\nalso Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904\n(2018). The risk is heightened where, as in this case, the\ndefendant proceeds pro se. Although a district court will\noften ask whether the parties object to its Guidelines\ncalculations, it “has the ultimate responsibility to ensure that\n\f14 UNITED STATES V. DEPUE\n\nthe Guidelines range it considers is correct.” Rosales-\nMireles, 138 S. Ct. at 1904. As the Supreme Court has\nexplained, uncorrected Guidelines errors risk depriving\ndefendants of liberty beyond what is necessary to serve the\npurposes of punishment. See id. at 1908. Such errors also\nundermine the United States Sentencing Commission’s (“the\nCommission”) ability to revise the Guidelines to ensure\ncertainty and fairness in the sentencing process more\nbroadly, because the Commission relies on data from\nindividual sentencing proceedings to amend the Guidelines.\nId. Attention to the distinction between forfeiture and\nwaiver—which results in a distinction between plain error\nappellate review and no appellate review—is thus of special\nsalience in the sentencing context.\n\n C.\n\n Because we hold that Depue forfeited his challenge to\nthe district court’s Guidelines calculation, we evaluate\nwhether the calculation was plain error affecting Depue’s\nsubstantial rights. Fed. R. Crim. P. 52(b); Hammons,\n558 F.3d at 1103. We conclude that, except for the absence\nof waiver, the plain error requirements are not met.\n\n “An error is plain if it is ‘contrary to the law at the time\nof appeal . . . .’” Ameline, 409 F.3d at 1078 (alteration in\noriginal) (quoting Johnson v. United States, 520 U.S. 461,\n468 (1997)). It affects substantial rights if the defendant can\n“demonstrate a reasonable probability that [he] would have\nreceived a different sentence if the district court had not\nerred.” United States v. Joseph, 716 F.3d 1273, 1280 (9th\nCir. 2013) (alteration in original) (internal quotation marks\nomitted) (quoting United States v. Tapia, 665 F.3d 1059,\n1061 (9th Cir. 2011)).\n\f UNITED STATES V. DEPUE 15\n\n Depue’s primary objection to the Guidelines calculation\nis that the district court erred by calculating the actual loss\nfrom the conspiracy based on the sales price of the purchased\nproperties, rather than on the loan principals of the\nmortgages he and his co-conspirators fraudulently obtained.\nRegardless of whether the district court’s loss calculation\nmethod was legally erroneous, Depue has not met his burden\nto show that the alleged error affected his substantial rights.\n\n “When a defendant is sentenced under an incorrect\nGuidelines range . . . the error itself . . . most often will[] be\nsufficient to show a reasonable probability of a different\noutcome absent the error.” Molina-Martinez, 136 S. Ct. at\n1345. But here, the evidence is insufficient to demonstrate\nthat a different method would have generated a lower\nGuidelines range, and so does not show “a reasonable\nprobability of a different outcome.” Id.\n\n According to the Guidelines, a 22-level enhancement is\nappropriate for fraud causing a loss between $25 million and\n$65 million. U.S.S.G. § 2B1.1(b)(1)(L). Based on evidence\nsubmitted by the government, the total loss as calculated\nusing the sales price of the properties amounted to\n$25,488,050. Depue has only provided evidence that the\nallegedly erroneous calculation method resulted in over-\ncounting the loss on one property by $20,250, far less than\nwhat he must show to demonstrate that the 22-level\nenhancement is incorrect. He has not shown that the\ncalculation method resulted in over-counting the loss on\nother properties; any possibility that it did so is speculative.\nSee Jones v. United States, 527 U.S. 373, 394–95 (1999)\n(“Where the effect of an alleged error is so uncertain, a\ndefendant cannot meet his burden of showing that the error\nactually affected his substantial rights.”).\n\f16 UNITED STATES V. DEPUE\n\n In fact, Depue seems to recognize that a loan-principal\ncalculation method would not yield a significantly different\ncalculation. He acknowledges that the “vast majority” of the\nproperties involved in the scheme were purchased with\n100% financing, and so the principal amount of the loan\nwould be approximately equal to the sales price.\n\n Depue’s remaining claims amount to factual disputes\nunderlying the Guidelines calculation. He argues that certain\nproperties should not be included in the loss calculation\nbecause they were double-counted, displayed mistaken sales\nprices, or were not part of the mortgage-fraud conspiracy.\nUnless extreme, “an error that hinges on a factual dispute is\nnot ‘obvious’ as required by the ‘plain error’ standard.” Yijun\nZhou, 838 F.3d at 1011; see also United States v. Scrivner,\n114 F.3d 964, 968–70 (9th Cir. 1997). We are not convinced\nthat the district court’s factual errors, if any, were so\negregious as to be plainly erroneous.\n\n III\n\n Because the record does not indicate that Depue\nknowingly relinquished his right to appeal the alleged\nGuidelines errors, we apply plain error review to his\nforfeited claims. However, Depue has not demonstrated that\nthe district court committed plain error affecting his\nsubstantial rights. We therefore affirm Depue’s conviction\nand sentence.\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,581,261		Francis Hernandez v. Kevin Chappell	2019-01-14	11-99013	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.", "parties": "", "opinions": [{"author": "NGUYEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nFRANCIS G. HERNANDEZ, No. 11-99013\n Petitioner-Appellant,\n D.C. No.\n v. 2:90-cv-04638-\n RSWL\nKEVIN CHAPPELL, Warden,\nCalifornia State Prison at San\nQuentin, ORDER AND\n Respondent-Appellee. OPINION\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Ronald S.W. Lew, Senior District Judge, Presiding\n\n Argued and Submitted September 24, 2018\n Pasadena, California\n\n Filed January 14, 2019\n\n Before: Kim McLane Wardlaw, Milan D. Smith, Jr.,\n and Jacqueline H. Nguyen, Circuit Judges.\n\n Opinion by Judge Nguyen\n\f2 HERNANDEZ V. CHAPPELL\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel filed an order withdrawing the prior opinion\nin this case, and filed a new opinion, which affirmed the\ndistrict court’s denial of a writ of habeas corpus as to Francis\nHernandez’s guilt-phase claims relating to his California\nstate convictions for first-degree murder.\n\n The panel addressed two claims of ineffective assistance\nof counsel. The panel held that trial counsel was\nconstitutionally deficient by failing to present a diminished\ncapacity defense based on mental illness, but that Hernandez\ndid not suffer any prejudice because the evidence of his\nspecific intent to rape and kill both victims was\noverwhelming when compared to the relatively weak\ndiminished capacity evidence that counsel could have\npresented, but failed to present. The panel held that trial\ncounsel was not ineffective for failing to subpoena Laura\nKostiuk as a witness.\n\n\n COUNSEL\n\nTracy Casadio (argued) and Margo A. Rocconi, Deputy\nFederal Public Defenders; Hilary Potashner, Federal Public\nDefender; Office of the Federal Public Defender, Los\nAngeles, California; for Petitioner-Appellant.\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f HERNANDEZ V. CHAPPELL 3\n\nGary A. Lieberman (argued) and Xiomara Costello, Deputy\nAttorneys General; Jason Tran, Supervising Deputy\nAttorney General; Lance E. Winters, Senior Assistant\nAttorney General; Gerald A. Engler, Chief Assistant\nAttorney General; Xavier Becerra, Attorney General; Office\nof the Attorney General, Los Angeles, California; for\nRespondent-Appellee.\n\nKent S. Scheidegger and Kymberlee C. Stapleton, Criminal\nJustice Legal Foundation, Sacramento, California, for\nAmicus Curiae Criminal Justice Legal Foundation.\n\n\n ORDER\n\n The prior opinion in this case, found at Hernandez v.\nChappell, 878 F.3d 843 (9th Cir. 2017), is hereby\nwithdrawn. A new opinion is being filed concurrently with\nthis order. Further petitions for rehearing or rehearing en\nbanc may be filed.\n\n\n\n OPINION\n\nNGUYEN, Circuit Judge:\n\n In the winter of 1981, Francis Hernandez brutally raped,\nsodomized, and strangled to death two women, Edna Bristol\nand Kathy Ryan. Hernandez committed the crimes five days\napart and in a strikingly similar manner, including strangling\nthe victims, mutilating their bodies, and leaving them near\nschools in Long Beach, California. After his arrest,\nHernandez confessed, walking the police through every\ndetail of his crimes and his thoughts and motivations as he\ncommitted them. In April 1983, a jury convicted Hernandez\n\f4 HERNANDEZ V. CHAPPELL\n\nof two counts each of first-degree murder, forcible rape, and\nforcible sodomy, and sentenced him to death. The California\nSupreme Court denied his state habeas petitions.\n\n Hernandez filed a federal habeas petition alleging,\namong other claims, ineffective assistance of trial counsel.\nAfter extensive litigation, including a six-year evidentiary\nhearing, the district court granted relief in part, vacating the\ndeath sentence. The district court denied guilt-phase relief.\n\n Hernandez now appeals the district court's denial of\nrelief as to the guilt-phase claims relating to his first-degree\nmurder convictions. 1 We find that trial counsel’s\nperformance was deficient in one respect—he should have\ninvestigated and considered presenting a diminished\ncapacity defense based on Hernandez’s mental condition.\nWe hold, however, that Hernandez did not suffer any\nprejudice as a result of counsel’s deficient performance.\nBecause the evidence of his specific intent to rape and kill\nboth victims was overwhelming when compared to the\nrelatively weak diminished capacity evidence that counsel\ncould have presented, but failed to present, there was no\nreasonable probability of a different outcome in this case.\nWe therefore affirm.\n\n\n\n\n 1\n The state on appeal does not challenge the district court’s grant of\npenalty-phase relief.\n\f HERNANDEZ V. CHAPPELL 5\n\n I.\n\n BACKGROUND\n\nA. The Murders of Bristol and Ryan\n\n In January 1981, Edna Bristol’s nude body was found\nnear a middle school in Long Beach, California. Five days\nlater, Kathy Ryan’s nude body was found near a high school\nin the same city. According to a pathologist, Bristol and\nRyan both died of asphyxiation due to strangulation or\nsuffocation, and their bodies suffered “extremely similar and\nextremely rare” trauma to the anal and vaginal areas,\nsuggesting a large object—consistent with a baseball bat—\nhad been inserted. Their bodies were mutilated, with bite\nmarks on their breasts, and their pubic hair was singed.\nBristol had ligature marks around her wrists and ankles.\nRyan’s nose was fractured, and a tic-tac-toe pattern had been\ncarved into her abdomen post-mortem.\n\n On February 4, 1981, Hernandez was arrested for the\ncrimes.\n\nB. Hernandez’s Detailed Confession\n\n Hernandez gave a detailed, taped confession. He\nchillingly recounted not only his horrific acts, but also the\nthoughts and feelings that went through his mind as he\ncommitted the crimes. Hernandez explained that on the\nnight of Bristol’s death, he “was in a weird mood” and\ndecided to “find . . . a homosexual to beat up on.” He found\na male victim, beat him up, and robbed him “for his last ten\ndollars.” When he was done, Hernandez was still feeling\n“frustrated.” It was then that he picked up Bristol\nhitchhiking.\n\f6 HERNANDEZ V. CHAPPELL\n\n He became angry when Bristol started telling him “about\nall her problems” and ordered her out of his van. When she\nrefused, he began to hit her and physically drag her out.\nBristol then pleaded that “she’d do anything,” and after he\n“thought about that for a minute,” he decided to drive to\nanother location. Once parked, he ordered Bristol to “get in\nthe back” of the van, where there was no exit, and “to take\noff her clothes.” Hernandez explained that he had intended\nto “let her out” or “let her go” after they “had sexual\nintercourse,” but he went “bezerk” because she was kicking\nand screaming and damaging his van. He taped her ankles,\nwrists, and mouth “around the hair,” and then, as he\ndescribed it, “I proceeded to fuck her in her ass.” He pushed\nher body against the hot engine cowling of his van to burn\nher nipple because he was “mad at her.” He then pushed\n“some piece of material” “over [Bristol’s] face” while\nholding her by the throat until she stopped moving. He threw\nher body out of the van onto the lawn of a middle school in\nLong Beach, California. Thinking Bristol was still alive,\nHernandez flicked matches onto her pubic area and another\nmatch “on her nipple” to “hurt her” for kicking him “in the\nnuts” and kicking a hole in his van.\n\n Hernandez’s confession also walked the police through\nthe night of Ryan’s death. He had gone to play pool with\nfriends, including Ryan. 2 After the group disbanded, he\nwent over to Ryan’s house and invited her into his van.\nWhen he tried to kiss her, “she sort of resisted.” She also\nrefused his order to take off her clothes but then said, “oh,\n\n 2\n The evidence shows that Ryan had repeatedly rejected\nHernandez’s aggressive advances all evening during the group outing.\nHernandez told one friend that night that he intended “to make a\nsandwich out of [Ryan],” “fuck her in the butt until she screams,” and\n“get some [from Ryan either] tonight or tomorrow night.”\n\f HERNANDEZ V. CHAPPELL 7\n\nokay,” when he got angry and “pushed her arms back.” At\none point, he “thought she wanted it in her ass,” and\nsodomized her. Like Bristol, Ryan was screaming and\nkicking and, in response, he “grabbed her, [held] onto her,\nand . . . then she gargled—she . . . sputtered up.” He thought\nthat he “was choking her too hard” and “let go.” Hernandez\ntold her “to mellow out” but when she started screaming\nagain, he grabbed her throat with one hand and covered her\nmouth with the other hand. Because “she started struggling\nreally bad,” he realized he “must have used too much\npressure, but then she stopped struggling.” He burned\nRyan’s pubic hair with a lighter, and decided to cut her\nstomach and nipple “to make the two bodies look different\nfrom one another so that the police could not link the cases\ntogether.” Hernandez took Ryan’s body to the high school\n“[b]ecause it was his understanding . . . that police\nsometimes think criminals return to the scene of the crime,\nand they might have been there waiting for him, had he . . .\ngone back to the first location” where he left Bristol’s body.\n\nC. Trial and Subsequent History\n\n At trial, Hernandez’s counsel attempted to present a\ndiminished capacity defense based solely on voluntary\nintoxication. Trial counsel argued that Hernandez’s heavy\ndrinking prevented him from forming the specific intent\nnecessary for first-degree murder. Counsel tried to persuade\nthe jury that Hernandez’s intoxication caused Hernandez to\nbelieve that the encounters with Bristol and Ryan were\nconsensual, and that he did not intend to kill them.\n\n The jury was unconvinced and convicted Hernandez of\ntwo counts of first-degree murder, two counts of forcible\nrape, and two counts of forcible sodomy, and found true\nspecial circumstances: that each murder occurred during the\ncommission of rape and sodomy, and that he committed\n\f8 HERNANDEZ V. CHAPPELL\n\nmore than one murder. People v. Hernandez, 47 Cal. 3d 315,\n327 (1988). The jury returned a death sentence as to each\nmurder. On each count of rape and sodomy, the trial court\nsentenced Hernandez to eight years, to be served\nconsecutively.\n\n On direct appeal, the California Supreme Court vacated\none multiple-murder special circumstance, but affirmed the\njudgment in all other respects.\n\nD. Habeas Proceedings\n\n In 1989, Hernandez filed a state habeas petition in the\nCalifornia Supreme Court, raising claims of ineffective\nassistance of counsel, which the California Supreme Court\nsummarily denied. Hernandez then filed a federal habeas\npetition and returned to state court to exhaust his claims. The\nCalifornia Supreme Court summarily denied Hernandez’s\nsecond habeas petition as untimely and on the merits.\nHernandez subsequently filed an amended federal petition.\nThe state filed a motion for summary judgment, which the\ndistrict court granted in part and denied in part. The district\ncourt then ordered a bifurcated evidentiary hearing as to\nHernandez’s juror misconduct and ineffective assistance of\ncounsel claims.\n\n In 2011, the district court granted relief in part, vacating\nthe death sentence partly because, at the penalty phase,\ncounsel presented virtually no mitigating evidence. Had\ncounsel investigated, he would have discovered that\nHernandez suffered from a deeply troubled childhood and\ncertain mental deficiencies. On appeal, the state does not\nchallenge the penalty-phase relief.\n\n As to the guilt phase, however, the district court denied\nthe petition. There are two claims of ineffective assistance\n\f HERNANDEZ V. CHAPPELL 9\n\nof counsel that are relevant here. On the first claim, the\ndistrict court found that counsel was ineffective for failing to\npresent mental health evidence to support a diminished\ncapacity defense, but that Hernandez did not suffer any\nprejudice. As to Hernandez’s claim that counsel was\nineffective for failing to call Laura Kostiuk as a witness, the\ndistrict court ruled that counsel’s performance was not\ndeficient, and Hernandez was not prejudiced.\n\n II.\n\n JURISDICTION\n\n The district court granted a certificate of appealability\n(“COA”) only on Hernandez’s claim that counsel was\nineffective for failing to call Kostiuk as a witness, declining\nto certify the remaining ineffective assistance of counsel\nclaims. We treat Hernandez’s appeal from the district\ncourt’s ruling on the uncertified issues as an application for\na COA, Fed. R. App. P. 22(b)(2), and grant the application\nas to Hernandez’s claim that counsel was ineffective by\nfailing to investigate and present a diminished capacity\ndefense based on mental impairment, see 28 U.S.C.\n§ 2253(c)(2). We decline to grant a COA as to the remaining\nclaims.\n\n III.\n\n STANDARD OF REVIEW\n\n Hernandez filed his federal habeas petition before the\nenactment of the Antiterrorism and Effective Death Penalty\nAct of 1996 (“AEDPA”), and therefore, pre-AEDPA\nstandards of review apply. Carrera v. Ayers, 699 F.3d 1104,\n1106 (9th Cir. 2012). “Ineffective assistance of counsel\nclaims present mixed questions of law and fact.” Id. Under\n\f10 HERNANDEZ V. CHAPPELL\n\npre-AEDPA law, we review questions of law or mixed\nquestions of law and fact de novo. Id. “We review the\ndistrict court’s findings of fact for clear error.” Id. (quoting\nRobinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010)).\n\n IV.\n\n DISCUSSION\n\n To prevail on an ineffective assistance of counsel claim,\nthe defendant must show both that counsel’s performance\nwas deficient, and that he suffered prejudice due to counsel’s\ndeficiency. Strickland v. Washington, 466 U.S. 668, 687\n(1984). “The essence of an ineffective-assistance claim is\nthat counsel’s unprofessional errors so upset the adversarial\nbalance between defense and prosecution that the trial was\nrendered unfair and the verdict rendered suspect.”\nKimmelman v. Morrison, 477 U.S. 365, 374 (1986).\n\nA. Counsel Rendered Ineffective Assistance by Failing\n to Investigate and Present a Diminished Capacity\n Defense Based on Mental Illness\n\n Hernandez argues that his counsel was constitutionally\ndeficient by failing to present a diminished capacity defense\nbased on his mental illness. We agree.\n\n “The proper measure of attorney performance remains\nsimply reasonableness under prevailing professional\nnorms.” Strickland, 466 U.S. at 688. While defense counsel\n“is strongly presumed to have rendered adequate assistance,”\nwe accord deference to counsel only for “strategic choices\nmade after thorough investigation of law and facts relevant\nto plausible options.” Id.\n\f HERNANDEZ V. CHAPPELL 11\n\n “An attorney’s ignorance of a point of law that is\nfundamental to his case combined with his failure to perform\nbasic research on that point is a quintessential example of\nunreasonable performance under Strickland.” Hinton v.\nAlabama, 571 U.S. 263, 274 (2014); see also United States\nv. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (finding\ncounsel’s performance deficient because his errors with\nregard to the jury instructions were based on “a\nmisunderstanding of the law” rather than strategic\njudgment); Morris v. California, 966 F.2d 448, 454–55 (9th\nCir. 1991) (finding counsel’s performance deficient because\nhe had not “done his homework” in researching the relevant\nlaw).\n\n Here, Hernandez’s trial counsel admitted that he was\nignorant of the law that was central to a diminished capacity\ndefense, which the district court correctly characterized as\nHernandez’s “best possible defense.” Counsel did not\nrealize that diminished capacity based upon mental illness\nwas an available defense under then-existing California law.\nSee People v. Saille, 54 Cal. 3d 1103, 1110 (1991)\n(“[S]omeone who is unable, because of intoxication or\nmental illness, to comprehend his duty to govern his actions\nin accord with the duty imposed by law, cannot act with\nmalice aforethought.”). Rather than focus on Hernandez’s\nmental condition, counsel instead chose to limit the evidence\nto Hernandez’s intoxication because, as he explained, he\nmistakenly believed that the defense “could only be based\non a lack of capacity arising from the use of drugs and/or\nalcohol.” Worse still, counsel admitted that he had no prior\nexperience with presenting the defense, and yet he “neither\ninvestigated, nor made a reasonable decision not to\ninvestigate” whether the defense would be available. See\nKimmelman, 477 U.S. at 385–87 (holding that counsel’s\nperformance was deficient where his actions “betray[ed] a\n\f12 HERNANDEZ V. CHAPPELL\n\nstartling ignorance of the law[—]or a weak attempt to shift\nblame for inadequate preparation”). Because counsel’s\nfailure to investigate and present a diminished capacity\ndefense based on mental illness was unreasonable, his\nassistance to Hernandez in this respect was constitutionally\ndeficient.\n\n We are unpersuaded by the state’s argument that we\nshould reject counsel’s stated explanations in favor of\nhypothetical strategic choices that could have supported\ncounsel’s conduct. According to the state, a reasonable\ndefense attorney could have decided not to present mental\nillness evidence in order to limit potentially damaging\nevidence that Hernandez was a sociopath. “Generally, we\ncredit the statements of defense counsel as to whether their\ndecisions at trial were—or were not—based on strategic\njudgments.” Doe v. Ayers, 782 F.3d 425, 445 (9th Cir.\n2015). Where, as here, “it ‘would contradict [counsel’s]\ntestimony’” to presume that counsel’s conduct was strategic\nwhen counsel clearly stated otherwise, we are guided by\ncounsel’s own statements. See id. (quoting Heishman v.\nAyers, 621 F.3d 1030, 1040 (9th Cir. 2010)). To do\notherwise would “contraven[e] the Supreme Court’s\nadmonition against adopting a post hoc rationalization of\ncounsel’s conduct instead of relying on an accurate\ndescription of their deliberations.” Id. (internal quotation\nmarks omitted). We have no reason to doubt counsel’s\nadmission that he based his actions on lack of investigation\nand knowledge, not on any strategic judgment. Accepting\ncounsel’s explanations, his conduct was unreasonable under\nStrickland.\n\f HERNANDEZ V. CHAPPELL 13\n\nB. Counsel’s Failure to Present a Diminished Capacity\n Defense Based on Mental Illness Did Not Result in\n Prejudice to Hernandez\n\n To establish prejudice, the defendant must show “a\nreasonable probability that, but for counsel’s unprofessional\nerrors, the result of the proceeding would have been\ndifferent. A reasonable probability is a probability sufficient\nto undermine confidence in the outcome.” Strickland,\n466 U.S. at 694. To make this assessment, we “compare the\nevidence that actually was presented to the jury with the\nevidence that might have been presented had counsel acted\ndifferently.” Clark v. Arnold, 769 F.3d 711, 728 (9th Cir.\n2014) (quoting Murtishaw v. Woodford, 255 F.3d 926, 940\n(9th Cir. 2001)). A defendant faces a higher burden of\nshowing prejudice at the guilt phase than at the penalty\nphase. See Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006)\n(“The bar for establishing prejudice is set lower in death-\npenalty sentencing cases than in guilt-phase challenges and\nnoncapital cases.”).\n\n 1. The Jury Heard Overwhelming Evidence of\n Hernandez’s Specific Intent to Rape and Kill\n Bristol and Ryan\n\n Although Hernandez’s trial counsel’s performance was\ndeficient, Hernandez must also show that he suffered\nprejudice due to counsel’s conduct. See Strickland, 466 U.S.\nat 687. To succeed here, Hernandez must show a reasonable\nprobability of a different outcome as to both first-degree\nmurder theories that were available to the jury: (1) willful,\ndeliberate, and premeditated murder, and (2) felony murder\nwith rape as the predicate felony. That is because the jury\nhad two independent paths to convict Hernandez of first-\ndegree murder. While the jury was required to find that the\nkilling was willful, deliberate, premeditated, and with malice\n\f14 HERNANDEZ V. CHAPPELL\n\naforethought under the first theory, it needed only to find that\nHernandez had the specific intent to rape under the second\ntheory of felony murder. See Hernandez, 47 Cal. 3d at 346–\n51.\n\n Ample evidence of Hernandez’s specific intent to rape\nand kill both Bristol and Ryan supported the jury’s verdict.\nFirst, the two crimes were committed within days of each\nother and were strikingly similar, strongly suggesting\npremeditation. Bristol and Ryan were around the same\nage—twenty-one and sixteen, respectively—and both had\nshoulder-length blonde hair and similar body types.\nHernandez, 47 Cal. 3d at 328, 341. Both victims were\nenticed into Hernandez’s van, raped, and sodomized. Id. at\n332–33. Hernandez taped Bristol’s wrists, ankles, and\nmouth with duct tape; tape was also found near Ryan’s body.\nId. at 328, 332. Both victims suffered “extremely similar\nand extremely rare” wounds to the vagina and anus, likely\ncaused by forcible insertion of a large object, possibly a\nbaseball bat. After each woman struggled and screamed,\nHernandez strangled them. Both women were found in the\nearly morning hours, lying naked on their backs, abandoned\nin grassy fields near schools. Hernandez threw both of their\nclothes out of his van after driving away from their bodies.\nTheir bodies bore other similar injuries—wounds inflicted\nby punches to the mouth, significant bruising around their\nnecks, bite marks on their breasts, “puncture-wound type\ninjuries to the nipples,” and “singed or burned pubic hair.”\nThe injuries “carried significant sexual overtones,” and\n“specifically sexual violence [was] repeated in almost every\ndetail with both victims.” Id. at 350. The substantial\nsimilarities between the crimes showed that Hernandez\nintended and premeditated both rapes and murders. Cf. id.\nat 341 (characterizing the offenses as “‘signature’ crimes—\nbecause of the unique nature of each killing, it was\n\f HERNANDEZ V. CHAPPELL 15\n\nreasonable to believe the same person committed them\nboth”).\n\n Second, Hernandez’s confession was powerful evidence\nof his intent. He explained the beginning of his attack on\nBristol as follows:\n\n [Bristol] started telling me about all her\n problems, and I was mad, and I told her not\n to tell me about her problems, and then she\n started bitching, and I just stopped my van. I\n got out, walked around and told her to get out,\n and she wouldn’t get out, so I hit her, and I\n dragged her out of my van, and then she told\n me that she’d do anything, and I thought\n about that for a minute, and—I don’t know it\n was just that I was drunk and I was in a weird\n mood, and I just took her and I threw her in\n the back . . . and then I told her to get out and\n get in the front, . . . and I proceeded to drive\n ....\n\n(Emphases added). Hernandez parked at another location\nand told Bristol to “get in the back” and “take off her\nclothes.” There was no exit from the back of the van.\nHernandez, 47 Cal. 3d at 345 n.18. Hernandez described\nwhat happened next:\n\n [We] had sexual intercourse once, then I was\n getting up and getting ready to let her go, and\n I didn’t really have her—you know—\n forcibly. I guess maybe she thought I did, but\n I don’t know—you know. I proceeded to get\n up and get my clothes on, and I was going to\n let her out . . . .\n\f16 HERNANDEZ V. CHAPPELL\n\n(Emphases added). While Hernandez tried to minimize his\nconduct by claiming that they had consensual intercourse,\nhis statement reveals, in several respects, his awareness of\nBristol’s lack of consent and his specific intent to rape her—\npondering her plea that she would “do anything[;]” driving\nto a different location; ordering her to get into the back of\nthe van and take off her clothes; and, after raping her,\nadmitting that he was preparing to “let her go” or “let her\nout.”\n\n Tragically, Hernandez’s violence only increased as the\nevening progressed. As Bristol struggled and screamed,\nHernandez went “bezerk,” and, in his own words:\n\n I just threw her over, taped her up . . . I taped\n her wrists. I taped her legs . . . [a]round the\n ankles, and then I taped her around the hair,\n and then I proceeded to fuck her in the\n ass. . . . [A]nd then I told her that if she was\n good after that; I told her if she was going to\n be cool, I’d let her up[,] and I was going to let\n her go, and then when I let her up, she started\n just kicking and hitting, and kicking and\n hitting me, so I just put my hand over her and\n I grabbed some piece of material . . . I pushed\n that over her face . . . and then—uh—she\n stopped moving.\n\nHernandez also admitted to “forc[ing] [Bristol] up against\nthe hot engine cowling of the van in order to burn her\nbreasts.” Hernandez, 47 Cal. 3d at 332. His motivation was\nclear by his own admission: he suffocated Bristol as\npunishment for not “being cool” after he violently raped and\nsodomized her. And the acts Hernandez took to render\nBristol “totally defenseless”—attacking her in the back of\n\f HERNANDEZ V. CHAPPELL 17\n\nthe van, from which she could not escape, and taping her\narms, legs, and mouth—also suggested premeditation and\nintent to kill. See Crittenden v. Ayers, 624 F.3d 943, 963\n(9th Cir. 2010) (viewing petitioner’s gagging and tying of\nhis victims as evidence of premeditation supporting a first-\ndegree murder conviction). In fact, Bristol’s “wrists and\nankles had been bound so tightly that there were ligature\nmarks on the skin and hemorrhage in the underlying tissues.”\nHernandez, 47 Cal. 3d at 344–45.\n\n Hernandez’s confession contains even more compelling\ndetails of his intent to rape and murder Ryan. Ryan and\nHernandez were friends, and spent time together in a group\nthe evening of her death. The California Supreme Court\ndescribed Hernandez’s actions as follows:\n\n During the evening of playing pool and\n drinking beer, it was evident to several in the\n group that defendant was focusing\n considerable unwelcome attention on Ryan.\n He tried to put his arms around her, pinched\n her in the buttocks and put his hands on her\n hips, but she kept pushing him away. . . .\n Outside, defendant told Jackson he wanted to\n make a “sandwich” out of Ryan; he wanted\n to “fuck her in the butt until she screams.” He\n told Jackson he would “get some tonight or\n tomorrow night.”\n\nHernandez, 47 Cal. 3d at 329–30. 3 Hernandez’s aggressive\nunwanted sexual touching of Ryan at the bar, and his stated\n\n 3\n Ryan’s stepmother also testified to suspicious circumstances\nsurrounding her daughter’s room. The morning after Ryan’s death, her\nstepmother “found the living room lights still on and the drapes and\n\f18 HERNANDEZ V. CHAPPELL\n\nintent to later “make a ‘sandwich’” out of Ryan and “fuck\nher in the butt until she screams” strongly suggest that he\nplanned ahead of time to sexually assault and rape her. That\nsame evening, Ryan ended up in his van, and although\nHernandez again tried to minimize his conduct by claiming\nthat she “submitted freely,” the evidence suggests that she\nwas forced. Before the group of friends dispersed from the\nbar, Ryan’s friend overheard Hernandez asking Ryan to\nmeet up with him after the gathering, and Ryan responding\n“no.” Hernandez admitted to the police that Ryan was\n“hesitant” about having sex with him but when he got\n“mad,” she finally “said oh, okay” because he had pushed\nher arms down and was about to force himself upon her.\nDespite Hernandez’s self-serving statements minimizing the\namount of force used, his intent to rape Ryan is clear.\n\n Hernandez’s confession, coupled with the physical\nevidence, also revealed his intent to murder Ryan. After she\nwas raped and forcibly sodomized, Ryan, like Bristol, was\nscreaming, kicking, and resisting. Hernandez described his\nresponse as follows:\n\n I grabbed her, [held] onto her, and—uh—\n then she gargled—she like sputtered up—you\n know—I guess I was choking her too hard,\n and then I let go, and then she was—I told her\n to mellow out and to start putting her clothes\n on, and I turned around to start doing it again,\n\nsliding glass door open. . . . [H]er bedroom window was open and\nmissing its screen.” Hernandez, 47 Cal. 3d at 328–29. Ryan had told\nher stepmother she was going out to play pool, but her pool cue and\njacket were on the living room floor. Id. at 329. “[Her] purse was outside\non the ground and items from the purse were spilled out.” Id. The jury\ncould have believed that Hernandez kidnapped Ryan, which would\nsupport a finding of specific intent to rape.\n\f HERNANDEZ V. CHAPPELL 19\n\n and then she started screaming again and\n everything, and I just—I don’t know—I\n grabbed her, and I just—I tried to shut her up\n and . . . [g]rabbed her around the throat . . .\n [w]ith one of my hands, and put one of my\n hands over her mouth to keep her quiet.\n\nAs Hernandez strangled Ryan, he was thinking of how he\nhad killed Bristol in the same way just days before. Ryan\nhad significant bruising around her neck—showing his\nintent to kill her, not simply quiet her screams. See People\nv. Frank, 38 Cal 3d. 711, 733–34 (1985) (stating that\n“strangulation . . . [is] a manner of killing [that] shows at\nleast a deliberate intent to kill” and that can “support an\ninference of premeditation and deliberation”). Significantly,\nnot only was he fully aware of his actions, Hernandez also\nhad the presence of mind to contemplate the consequences.\nAfter he killed Ryan, he cut her torso with a piece of glass in\na deliberate attempt to make her body look different from\nBristol’s. Hernandez’s chilling insight into his own\nmotivations gave the jury powerful, direct evidence of his\nwillfulness, deliberation, and premeditation.\n\n Finally, the level of detail in Hernandez’s confession\nprovided further compelling proof that he was aware of and\nintended his actions. In a largely chronological fashion,\nHernandez walked the police through the events leading up\nto the rapes and murders, including very specific\ndescriptions of his actions. Apart from detailing his thoughts\nand motivations, see supra, Hernandez admitted to\nmutilating both of his victims’ bodies and described the\nnature of the markings in detail. Hernandez described\nburning Bristol and Ryan’s pubic hair, explaining that he\nacted out of anger. He specifically remembered burning\nBristol’s left breast with a match, distinguishing that burn\n\f20 HERNANDEZ V. CHAPPELL\n\nfrom the burns to her right breast caused by pushing her up\nagainst the hot car during forcible sodomy. He recounted\ncutting Ryan’s nipple with a piece of broken glass.\nSignificantly, Hernandez described all these details before\nseeing any pictures of Bristol or Ryan’s bodies.\n\n In sum, the jury heard overwhelming evidence that\nHernandez had the specific intent to rape both Bristol and\nRyan, and that he murdered both women willfully,\ndeliberately, and with premeditation.\n\n 2. The Relatively Weak Diminished Capacity\n Evidence Would Not Have Resulted in a\n Reasonable Probability of a Different Outcome\n\n The strength of the evidence of Hernandez’s intent to\nrape and kill contrasts sharply with the relatively weak\n“evidence that might have been presented had counsel acted\ndifferently”—specifically, evidence that his mental\ncondition rendered him incapable of forming the requisite\nintent. See Clark, 769 F.3d at 728 (quoting Murtishaw,\n255 F.3d at 940).\n\n At his post-conviction hearing, Hernandez presented\ntestimony from five experts: psychologist June Madsen\nClausen, psychiatrist Dorothy Otnow Lewis, criminologist\nSheila Balkan, clinical psychologist Charles Sanislow, and\nneuropsychologist Ruben Gur. Hernandez v. Martel, 824 F.\nSupp. 2d 1025, 1043 (C.D. Cal. 2011). Dr. Sanislow’s and\nDr. Gur’s testimony was used to rebut the findings of the\n\f HERNANDEZ V. CHAPPELL 21\n\nstate’s expert, clinical psychologist Daniel Martell. 4 Id. at\n1062–65.\n\n Dr. Sanislow merely reviewed and commented on\nMartell’s discredited evaluation of Hernandez. He found\nthat the absence of bipolar indications in Martell’s then-\nrecent testing of Hernandez “[was] not a sufficient basis on\nwhich to conclude that Mr. Hernandez is not bipolar,” and\nthat a negative finding on the administered psychometric test\n“does not rule out the presence or past presence of\npsychopathology (e.g., dissociative disorders, bipolar or\nother affective disorders).” (Emphases added). While his\nconclusions were sufficient, among other reasons, to lead the\ndistrict court to discount Martell’s evaluation, they are\ncertainly not a conclusive diagnosis of bipolar disorder.\n\n Dr. Gur, the second rebuttal expert, believed Hernandez\nsuffers from brain dysfunction. He found “clear[]\nindicat[ions] that [] Hernandez has deficits in understanding\nand interpreting facial expressions of affect, which would\nprovide” the basis “for such confusion and misperceptions\nto have occurred during the commission of the crimes[,] . . .\ninterfer[ing] with his ability to comprehend and formulate an\nappropriate response to the victims’ expressions of\nresistance and fear,” and “significantly interfer[ing] with his\nability to make the right judgment.” But a lack of good\njudgment is not equivalent to the inability to form specific\nintent. Moreover, Hernandez’s own statements—even those\n\n\n\n 4\n We give no independent consideration to Martell’s findings\nbecause the district court found significant problems with his\nmethodology and credibility. See Hernandez, 824 F. Supp. 2d at 1056.\n\f22 HERNANDEZ V. CHAPPELL\n\nmade to Dr. Gur himself during their evaluation 5—belie the\nnotion that Hernandez could not perceive the emotions of his\nvictims. On the contrary, Hernandez was able to articulate\nthat his victims were afraid, did not consent to sexual\nactivity, and resisted him. And while, in deposition, Dr. Gur\nconcluded that “either schizophrenia or bipolar illness is\nprobably applicable in his case,” he also admitted that\nHernandez could suffer from something else entirely, “such\nas attention deficit, hyperactivity disorder, [or] impulse\ncontrol.” Hernandez, 824 F. Supp. 2d at 1063 (emphasis\nadded) (quoting Dr. Gur’s Dep. Tr.).\n\n Dr. Lewis diagnosed Hernandez with psychosis and\nbipolar disorder, found that he had “compromised mental\nfunctioning,” and concluded that his “capacity to form the\nspecific intent to rape and kill[] was substantially impaired”\nat the time he committed the crimes. Dr. Balkan, a\ncriminologist, provided a social history of Hernandez’s life\nand otherwise largely quoted Dr. Lewis’s conclusions.\nWhile these evaluations raise concerns about Hernandez’s\nmental stability, they do not show that Hernandez lacked the\nability to form the necessary specific intent for these crimes.\nDr. Lewis found Hernandez’s mental state to be\n“compromised” and “substantially impaired,” but not\nnecessarily inconsistent with the ability to form specific\nintent to murder and rape. And, as she acknowledged, no\nsingle factor in Hernandez’s difficult life accounts for his\nviolent crimes.\n\n\n 5\n Hernandez told Dr. Gur that Bristol “did not consent to anal\nintercourse.” Dr. Gur does not explain how he concludes that Hernandez\ncould have the mental capacity to commit forcible sodomy in that instant,\nbut lack the capacity to form specific intent immediately before (while\nraping Bristol) or after (while strangling Bristol).\n\f HERNANDEZ V. CHAPPELL 23\n\n The final habeas expert was Dr. Clausen, whose opinion\ncomes closest to stating definitively that Hernandez could\nnot have had the necessary specific intent. Dr. Clausen\nopined that “Hernandez was in a trauma-induced\ndissociative state” at the time of his crimes, “and as a result,\nhas no subsequent actual recollection of the events that\ntranspired.” But the suggestion by Dr. Clausen that\nHernandez was in a dissociative state and “had no\nsubsequent actual recollection” of his crimes is totally\ncontradicted by his detailed confession, the voluntariness\nand reliability of which Hernandez does not dispute.\n\n Even generously construed, these opinions are grossly\ninadequate to undermine the evidence that Hernandez was\ncapable of forming, and in fact formed, the intent to rape and\nkill Bristol and Ryan. First, the experts fail to account for\nthe striking similarities between the two crimes. Dr. Gur\ntheorized that mental impairments like Hernandez’s could\ncause someone to “engage in a complex set of behaviors\nwithout intent or premeditation,” leading to “highly\norganized if somewhat ritualistic behavior.” But\nHernandez’s behavior does not suggest ritual so much as it\nexpresses an intent to rape and murder Bristol and Ryan\nbecause, as Hernandez himself explained, he was angry at\ntheir resistance. And none of the other experts even\nattempted to explain how Hernandez could have committed\ntwo such similar crimes within a five-day period without\nintending to do so.\n\n Second, the experts’ reports also fail to counter the\noverwhelming evidence that Hernandez intended to rape\nBristol and Ryan. The habeas experts uncovered no\nevidence to suggest Hernandez was in a dissociative state\nwhen he “thought about” Bristol’s offer to “do anything” to\nsave herself from his violence; when, earlier in the evening,\n\f24 HERNANDEZ V. CHAPPELL\n\nhe sexually harassed Ryan and bragged of plans to “get\nsome” later; or when he pushed Ryan’s arms down and raped\nher after she said no to sexual intercourse. In fact, even Dr.\nClausen, who speculated that the police fed Hernandez the\ndetails of his confession and that Hernandez in fact did not\nremember much of the crimes due to dissociation, stated that\nHernandez had “personal memory up to and including\nhaving sex with Edna Bristol in the back of his van.” Dr.\nGur’s dissociation theory was similarly temporally limited,\nnoting that Hernandez’s “clinical profile is further indication\nthat he was in a dissociative state during his commission of\nthe crimes, or at least during some portion of that epoch,\ne.g., when he killed or inflicted post-mortem injuries.”\n(Emphasis added). Thus, even assuming Hernandez\ndissociated during the murders, the experts’ conclusions\nactually support the inference that Hernandez was at least\naware of, and intended, his actions during the rapes. The\nintent to rape alone is enough to support the murder\nconvictions.\n\n Finally, the experts’ dissociation theory fails to account\nfor Hernandez’s detailed explanation of his actions,\nthoughts, and motivations during the crimes. Drs. Gur and\nLewis surmised that Hernandez’s confession suggested that\nhe was in “an altered mental state” on the nights of the\ncrimes based on his statement that he “wasn’t even feeling\n[that] [he] did it,” and his request for psychiatric help\nbecause he “[didn’t] know what would make [him] do this.”\nBut “a reasonable jury could have easily chosen to disbelieve\n[these] self-serving” statements in light of Hernandez’s\nextensive account of his innermost thoughts and motivations\non the nights of the crimes. See United States v. Nicholson,\n677 F.2d 706, 709 (9th Cir. 1982). Moreover, while Drs.\nGur and Lewis make much of the fact that Hernandez is\npersistently “unable” to explain why he committed the brutal\n\f HERNANDEZ V. CHAPPELL 25\n\nmurders, this assertion is squarely contradicted by the\nrecord. Hernandez provided a plausible, albeit deeply\ndisturbing explanation of his motives—he was angry at\nBristol for talking too much, kicking him, and kicking a hole\nin his van, and he was angry at Ryan for screaming and\ntrying to escape. His explanation of how he expressed that\nanger (rape, forced sodomy, and strangulation) suggests\nintentional, premeditated actions and not dissociation or a\nlack of control that would negate the mens rea required for a\nfirst-degree murder conviction. As the California Supreme\nCourt correctly explained, “clearly the killings occurred\nwhen the victims screamed and struggled to get away. They\noccurred as a direct product of the sexual assaults and to\nsilence the victims.” Hernandez, 47 Cal. 3d at 348.\n\n Given the weakness of the omitted experts’ evaluations\nwhen compared to the overwhelming evidence presented to\nthe jury, we hold that there is no reasonable possibility of a\ndifferent outcome. See Strickland, 466 U.S. at 694. Thus,\nHernandez’s ineffective assistance of counsel claim\npredicated on counsel’s failure to present a diminished\ncapacity defense based on mental illness fails.\n\nC. Defense Counsel Was Neither Ineffective for Failing\n to Subpoena Kostiuk as a Witness, Nor Was\n Hernandez Prejudiced\n\n Hernandez argues that counsel was ineffective for failing\nto call Laura Kostiuk as a witness. Kostiuk, according to\nHernandez, might have offered testimony that Hernandez\nand Ryan had previously engaged in consensual sex.\nHernandez contends that this evidence would have undercut\nthe state’s theory that he intended to rape Ryan.\n\n Prior to trial, Hernandez’s trial counsel had planned to\ncall Kostiuk as a defense witness and had subpoenaed her.\n\f26 HERNANDEZ V. CHAPPELL\n\nBut when the trial date was continued, counsel “simply\nforgot” to re-subpoena Kostiuk. Defense counsel explained\nthat his failure to re-subpoena Kostiuk was due to his\ndiagnosis of cancer around the time of the second, actual trial\ndate. He would have wanted Kostiuk’s testimony “because\nthe issue was whether . . . [Hernandez] had voluntary or\ninvoluntary sexual intercourse” with Ryan, and he “could\n[have done] a lot with [her testimony] and didn’t.”\nHernandez’s counsel’s failure to call Kostiuk as a witness\nwas based on neglect, not strategy.\n\n Nevertheless, we agree with the district court that\ncounsel’s failure to call Kostiuk as a witness does not\nconstitute deficient performance. While “simply\nforg[etting]” to subpoena a witness certainly could constitute\ndeficient performance, see, e.g., Lord v. Wood, 184 F.3d\n1083, 1093–96 (9th Cir. 2009), the error did not rise to the\nlevel of deficient performance in this case. “While the Sixth\nAmendment requires an attorney to look for evidence that\ncorroborates the defense he pursues, the Sixth Amendment\nhas not been expanded to require an attorney to hunt down\nsuch marginally relevant and indirectly beneficial evidence.”\nHendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).\nAt best, Kostiuk may have testified that on a prior occasion,\nHernandez and Ryan engaged in consensual sex. Such\nevidence has minimal probative value, especially in light of\nthe significant evidence that, on the evening of her death, she\nwas brutally raped and sodomized. As the medical examiner\nexplained, Ryan’s vagina and anus suffered from “extremely\nrare” pre-mortem bruising and tearing. Because “the failure\nto take a futile action can never be deficient performance,”\nRupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), counsel\ndid not render ineffective assistance by failing to call\nKostiuk to testify during Hernandez’s trial.\n\f HERNANDEZ V. CHAPPELL 27\n\n Even assuming that counsel’s performance was\nconstitutionally deficient, as discussed, Hernandez did not\nsuffer any prejudice due to the overwhelming evidence of\nhis intent to rape and murder Ryan.\n\n * * *\n\n We affirm the district court’s denial of a writ of habeas\ncorpus as to Hernandez’s guilt-phase claims relating to the\nfirst-degree murder convictions.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358514/", "author_raw": "NGUYEN, Circuit Judge:"}]}	KIM MCLANE WARDLAW	MILAN D SMITH JR	JACQUELINE H NGUYEN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581261/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Francis Hernandez v. Kevin Chappell\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nFRANCIS G. HERNANDEZ, No. 11-99013\n Petitioner-Appellant,\n D.C. No.\n v. 2:90-cv-04638-\n RSWL\nKEVIN CHAPPELL, Warden,\nCalifornia State Prison at San\nQuentin, ORDER AND\n Respondent-Appellee. OPINION\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Ronald S.W. Lew, Senior District Judge, Presiding\n\n Argued and Submitted September 24, 2018\n Pasadena, California\n\n Filed January 14, 2019\n\n Before: Kim McLane Wardlaw, Milan D. Smith, Jr.,\n and Jacqueline H. Nguyen, Circuit Judges.\n\n Opinion by Judge Nguyen\n\f2 HERNANDEZ V. CHAPPELL\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel filed an order withdrawing the prior opinion\nin this case, and filed a new opinion, which affirmed the\ndistrict court’s denial of a writ of habeas corpus as to Francis\nHernandez’s guilt-phase claims relating to his California\nstate convictions for first-degree murder.\n\n The panel addressed two claims of ineffective assistance\nof counsel. The panel held that trial counsel was\nconstitutionally deficient by failing to present a diminished\ncapacity defense based on mental illness, but that Hernandez\ndid not suffer any prejudice because the evidence of his\nspecific intent to rape and kill both victims was\noverwhelming when compared to the relatively weak\ndiminished capacity evidence that counsel could have\npresented, but failed to present. The panel held that trial\ncounsel was not ineffective for failing to subpoena Laura\nKostiuk as a witness.\n\n\n COUNSEL\n\nTracy Casadio (argued) and Margo A. Rocconi, Deputy\nFederal Public Defenders; Hilary Potashner, Federal Public\nDefender; Office of the Federal Public Defender, Los\nAngeles, California; for Petitioner-Appellant.\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f HERNANDEZ V. CHAPPELL 3\n\nGary A. Lieberman (argued) and Xiomara Costello, Deputy\nAttorneys General; Jason Tran, Supervising Deputy\nAttorney General; Lance E. Winters, Senior Assistant\nAttorney General; Gerald A. Engler, Chief Assistant\nAttorney General; Xavier Becerra, Attorney General; Office\nof the Attorney General, Los Angeles, California; for\nRespondent-Appellee.\n\nKent S. Scheidegger and Kymberlee C. Stapleton, Criminal\nJustice Legal Foundation, Sacramento, California, for\nAmicus Curiae Criminal Justice Legal Foundation.\n\n\n ORDER\n\n The prior opinion in this case, found at Hernandez v.\nChappell, 878 F.3d 843 (9th Cir. 2017), is hereby\nwithdrawn. A new opinion is being filed concurrently with\nthis order. Further petitions for rehearing or rehearing en\nbanc may be filed.\n\n\n\n OPINION\n\nNGUYEN, Circuit Judge:\n\n In the winter of 1981, Francis Hernandez brutally raped,\nsodomized, and strangled to death two women, Edna Bristol\nand Kathy Ryan. Hernandez committed the crimes five days\napart and in a strikingly similar manner, including strangling\nthe victims, mutilating their bodies, and leaving them near\nschools in Long Beach, California. After his arrest,\nHernandez confessed, walking the police through every\ndetail of his crimes and his thoughts and motivations as he\ncommitted them. In April 1983, a jury convicted Hernandez\n\f4 HERNANDEZ V. CHAPPELL\n\nof two counts each of first-degree murder, forcible rape, and\nforcible sodomy, and sentenced him to death. The California\nSupreme Court denied his state habeas petitions.\n\n Hernandez filed a federal habeas petition alleging,\namong other claims, ineffective assistance of trial counsel.\nAfter extensive litigation, including a six-year evidentiary\nhearing, the district court granted relief in part, vacating the\ndeath sentence. The district court denied guilt-phase relief.\n\n Hernandez now appeals the district court's denial of\nrelief as to the guilt-phase claims relating to his first-degree\nmurder convictions. 1 We find that trial counsel’s\nperformance was deficient in one respect—he should have\ninvestigated and considered presenting a diminished\ncapacity defense based on Hernandez’s mental condition.\nWe hold, however, that Hernandez did not suffer any\nprejudice as a result of counsel’s deficient performance.\nBecause the evidence of his specific intent to rape and kill\nboth victims was overwhelming when compared to the\nrelatively weak diminished capacity evidence that counsel\ncould have presented, but failed to present, there was no\nreasonable probability of a different outcome in this case.\nWe therefore affirm.\n\n\n\n\n 1\n The state on appeal does not challenge the district court’s grant of\npenalty-phase relief.\n\f HERNANDEZ V. CHAPPELL 5\n\n I.\n\n BACKGROUND\n\nA. The Murders of Bristol and Ryan\n\n In January 1981, Edna Bristol’s nude body was found\nnear a middle school in Long Beach, California. Five days\nlater, Kathy Ryan’s nude body was found near a high school\nin the same city. According to a pathologist, Bristol and\nRyan both died of asphyxiation due to strangulation or\nsuffocation, and their bodies suffered “extremely similar and\nextremely rare” trauma to the anal and vaginal areas,\nsuggesting a large object—consistent with a baseball bat—\nhad been inserted. Their bodies were mutilated, with bite\nmarks on their breasts, and their pubic hair was singed.\nBristol had ligature marks around her wrists and ankles.\nRyan’s nose was fractured, and a tic-tac-toe pattern had been\ncarved into her abdomen post-mortem.\n\n On February 4, 1981, Hernandez was arrested for the\ncrimes.\n\nB. Hernandez’s Detailed Confession\n\n Hernandez gave a detailed, taped confession. He\nchillingly recounted not only his horrific acts, but also the\nthoughts and feelings that went through his mind as he\ncommitted the crimes. Hernandez explained that on the\nnight of Bristol’s death, he “was in a weird mood” and\ndecided to “find . . . a homosexual to beat up on.” He found\na male victim, beat him up, and robbed him “for his last ten\ndollars.” When he was done, Hernandez was still feeling\n“frustrated.” It was then that he picked up Bristol\nhitchhiking.\n\f6 HERNANDEZ V. CHAPPELL\n\n He became angry when Bristol started telling him “about\nall her problems” and ordered her out of his van. When she\nrefused, he began to hit her and physically drag her out.\nBristol then pleaded that “she’d do anything,” and after he\n“thought about that for a minute,” he decided to drive to\nanother location. Once parked, he ordered Bristol to “get in\nthe back” of the van, where there was no exit, and “to take\noff her clothes.” Hernandez explained that he had intended\nto “let her out” or “let her go” after they “had sexual\nintercourse,” but he went “bezerk” because she was kicking\nand screaming and damaging his van. He taped her ankles,\nwrists, and mouth “around the hair,” and then, as he\ndescribed it, “I proceeded to fuck her in her ass.” He pushed\nher body against the hot engine cowling of his van to burn\nher nipple because he was “mad at her.” He then pushed\n“some piece of material” “over [Bristol’s] face” while\nholding her by the throat until she stopped moving. He threw\nher body out of the van onto the lawn of a middle school in\nLong Beach, California. Thinking Bristol was still alive,\nHernandez flicked matches onto her pubic area and another\nmatch “on her nipple” to “hurt her” for kicking him “in the\nnuts” and kicking a hole in his van.\n\n Hernandez’s confession also walked the police through\nthe night of Ryan’s death. He had gone to play pool with\nfriends, including Ryan. 2 After the group disbanded, he\nwent over to Ryan’s house and invited her into his van.\nWhen he tried to kiss her, “she sort of resisted.” She also\nrefused his order to take off her clothes but then said, “oh,\n\n 2\n The evidence shows that Ryan had repeatedly rejected\nHernandez’s aggressive advances all evening during the group outing.\nHernandez told one friend that night that he intended “to make a\nsandwich out of [Ryan],” “fuck her in the butt until she screams,” and\n“get some [from Ryan either] tonight or tomorrow night.”\n\f HERNANDEZ V. CHAPPELL 7\n\nokay,” when he got angry and “pushed her arms back.” At\none point, he “thought she wanted it in her ass,” and\nsodomized her. Like Bristol, Ryan was screaming and\nkicking and, in response, he “grabbed her, [held] onto her,\nand . . . then she gargled—she . . . sputtered up.” He thought\nthat he “was choking her too hard” and “let go.” Hernandez\ntold her “to mellow out” but when she started screaming\nagain, he grabbed her throat with one hand and covered her\nmouth with the other hand. Because “she started struggling\nreally bad,” he realized he “must have used too much\npressure, but then she stopped struggling.” He burned\nRyan’s pubic hair with a lighter, and decided to cut her\nstomach and nipple “to make the two bodies look different\nfrom one another so that the police could not link the cases\ntogether.” Hernandez took Ryan’s body to the high school\n“[b]ecause it was his understanding . . . that police\nsometimes think criminals return to the scene of the crime,\nand they might have been there waiting for him, had he . . .\ngone back to the first location” where he left Bristol’s body.\n\nC. Trial and Subsequent History\n\n At trial, Hernandez’s counsel attempted to present a\ndiminished capacity defense based solely on voluntary\nintoxication. Trial counsel argued that Hernandez’s heavy\ndrinking prevented him from forming the specific intent\nnecessary for first-degree murder. Counsel tried to persuade\nthe jury that Hernandez’s intoxication caused Hernandez to\nbelieve that the encounters with Bristol and Ryan were\nconsensual, and that he did not intend to kill them.\n\n The jury was unconvinced and convicted Hernandez of\ntwo counts of first-degree murder, two counts of forcible\nrape, and two counts of forcible sodomy, and found true\nspecial circumstances: that each murder occurred during the\ncommission of rape and sodomy, and that he committed\n\f8 HERNANDEZ V. CHAPPELL\n\nmore than one murder. People v. Hernandez, 47 Cal. 3d 315,\n327 (1988). The jury returned a death sentence as to each\nmurder. On each count of rape and sodomy, the trial court\nsentenced Hernandez to eight years, to be served\nconsecutively.\n\n On direct appeal, the California Supreme Court vacated\none multiple-murder special circumstance, but affirmed the\njudgment in all other respects.\n\nD. Habeas Proceedings\n\n In 1989, Hernandez filed a state habeas petition in the\nCalifornia Supreme Court, raising claims of ineffective\nassistance of counsel, which the California Supreme Court\nsummarily denied. Hernandez then filed a federal habeas\npetition and returned to state court to exhaust his claims. The\nCalifornia Supreme Court summarily denied Hernandez’s\nsecond habeas petition as untimely and on the merits.\nHernandez subsequently filed an amended federal petition.\nThe state filed a motion for summary judgment, which the\ndistrict court granted in part and denied in part. The district\ncourt then ordered a bifurcated evidentiary hearing as to\nHernandez’s juror misconduct and ineffective assistance of\ncounsel claims.\n\n In 2011, the district court granted relief in part, vacating\nthe death sentence partly because, at the penalty phase,\ncounsel presented virtually no mitigating evidence. Had\ncounsel investigated, he would have discovered that\nHernandez suffered from a deeply troubled childhood and\ncertain mental deficiencies. On appeal, the state does not\nchallenge the penalty-phase relief.\n\n As to the guilt phase, however, the district court denied\nthe petition. There are two claims of ineffective assistance\n\f HERNANDEZ V. CHAPPELL 9\n\nof counsel that are relevant here. On the first claim, the\ndistrict court found that counsel was ineffective for failing to\npresent mental health evidence to support a diminished\ncapacity defense, but that Hernandez did not suffer any\nprejudice. As to Hernandez’s claim that counsel was\nineffective for failing to call Laura Kostiuk as a witness, the\ndistrict court ruled that counsel’s performance was not\ndeficient, and Hernandez was not prejudiced.\n\n II.\n\n JURISDICTION\n\n The district court granted a certificate of appealability\n(“COA”) only on Hernandez’s claim that counsel was\nineffective for failing to call Kostiuk as a witness, declining\nto certify the remaining ineffective assistance of counsel\nclaims. We treat Hernandez’s appeal from the district\ncourt’s ruling on the uncertified issues as an application for\na COA, Fed. R. App. P. 22(b)(2), and grant the application\nas to Hernandez’s claim that counsel was ineffective by\nfailing to investigate and present a diminished capacity\ndefense based on mental impairment, see 28 U.S.C.\n§ 2253(c)(2). We decline to grant a COA as to the remaining\nclaims.\n\n III.\n\n STANDARD OF REVIEW\n\n Hernandez filed his federal habeas petition before the\nenactment of the Antiterrorism and Effective Death Penalty\nAct of 1996 (“AEDPA”), and therefore, pre-AEDPA\nstandards of review apply. Carrera v. Ayers, 699 F.3d 1104,\n1106 (9th Cir. 2012). “Ineffective assistance of counsel\nclaims present mixed questions of law and fact.” Id. Under\n\f10 HERNANDEZ V. CHAPPELL\n\npre-AEDPA law, we review questions of law or mixed\nquestions of law and fact de novo. Id. “We review the\ndistrict court’s findings of fact for clear error.” Id. (quoting\nRobinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010)).\n\n IV.\n\n DISCUSSION\n\n To prevail on an ineffective assistance of counsel claim,\nthe defendant must show both that counsel’s performance\nwas deficient, and that he suffered prejudice due to counsel’s\ndeficiency. Strickland v. Washington, 466 U.S. 668, 687\n(1984). “The essence of an ineffective-assistance claim is\nthat counsel’s unprofessional errors so upset the adversarial\nbalance between defense and prosecution that the trial was\nrendered unfair and the verdict rendered suspect.”\nKimmelman v. Morrison, 477 U.S. 365, 374 (1986).\n\nA. Counsel Rendered Ineffective Assistance by Failing\n to Investigate and Present a Diminished Capacity\n Defense Based on Mental Illness\n\n Hernandez argues that his counsel was constitutionally\ndeficient by failing to present a diminished capacity defense\nbased on his mental illness. We agree.\n\n “The proper measure of attorney performance remains\nsimply reasonableness under prevailing professional\nnorms.” Strickland, 466 U.S. at 688. While defense counsel\n“is strongly presumed to have rendered adequate assistance,”\nwe accord deference to counsel only for “strategic choices\nmade after thorough investigation of law and facts relevant\nto plausible options.” Id.\n\f HERNANDEZ V. CHAPPELL 11\n\n “An attorney’s ignorance of a point of law that is\nfundamental to his case combined with his failure to perform\nbasic research on that point is a quintessential example of\nunreasonable performance under Strickland.” Hinton v.\nAlabama, 571 U.S. 263, 274 (2014); see also United States\nv. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (finding\ncounsel’s performance deficient because his errors with\nregard to the jury instructions were based on “a\nmisunderstanding of the law” rather than strategic\njudgment); Morris v. California, 966 F.2d 448, 454–55 (9th\nCir. 1991) (finding counsel’s performance deficient because\nhe had not “done his homework” in researching the relevant\nlaw).\n\n Here, Hernandez’s trial counsel admitted that he was\nignorant of the law that was central to a diminished capacity\ndefense, which the district court correctly characterized as\nHernandez’s “best possible defense.” Counsel did not\nrealize that diminished capacity based upon mental illness\nwas an available defense under then-existing California law.\nSee People v. Saille, 54 Cal. 3d 1103, 1110 (1991)\n(“[S]omeone who is unable, because of intoxication or\nmental illness, to comprehend his duty to govern his actions\nin accord with the duty imposed by law, cannot act with\nmalice aforethought.”). Rather than focus on Hernandez’s\nmental condition, counsel instead chose to limit the evidence\nto Hernandez’s intoxication because, as he explained, he\nmistakenly believed that the defense “could only be based\non a lack of capacity arising from the use of drugs and/or\nalcohol.” Worse still, counsel admitted that he had no prior\nexperience with presenting the defense, and yet he “neither\ninvestigated, nor made a reasonable decision not to\ninvestigate” whether the defense would be available. See\nKimmelman, 477 U.S. at 385–87 (holding that counsel’s\nperformance was deficient where his actions “betray[ed] a\n\f12 HERNANDEZ V. CHAPPELL\n\nstartling ignorance of the law[—]or a weak attempt to shift\nblame for inadequate preparation”). Because counsel’s\nfailure to investigate and present a diminished capacity\ndefense based on mental illness was unreasonable, his\nassistance to Hernandez in this respect was constitutionally\ndeficient.\n\n We are unpersuaded by the state’s argument that we\nshould reject counsel’s stated explanations in favor of\nhypothetical strategic choices that could have supported\ncounsel’s conduct. According to the state, a reasonable\ndefense attorney could have decided not to present mental\nillness evidence in order to limit potentially damaging\nevidence that Hernandez was a sociopath. “Generally, we\ncredit the statements of defense counsel as to whether their\ndecisions at trial were—or were not—based on strategic\njudgments.” Doe v. Ayers, 782 F.3d 425, 445 (9th Cir.\n2015). Where, as here, “it ‘would contradict [counsel’s]\ntestimony’” to presume that counsel’s conduct was strategic\nwhen counsel clearly stated otherwise, we are guided by\ncounsel’s own statements. See id. (quoting Heishman v.\nAyers, 621 F.3d 1030, 1040 (9th Cir. 2010)). To do\notherwise would “contraven[e] the Supreme Court’s\nadmonition against adopting a post hoc rationalization of\ncounsel’s conduct instead of relying on an accurate\ndescription of their deliberations.” Id. (internal quotation\nmarks omitted). We have no reason to doubt counsel’s\nadmission that he based his actions on lack of investigation\nand knowledge, not on any strategic judgment. Accepting\ncounsel’s explanations, his conduct was unreasonable under\nStrickland.\n\f HERNANDEZ V. CHAPPELL 13\n\nB. Counsel’s Failure to Present a Diminished Capacity\n Defense Based on Mental Illness Did Not Result in\n Prejudice to Hernandez\n\n To establish prejudice, the defendant must show “a\nreasonable probability that, but for counsel’s unprofessional\nerrors, the result of the proceeding would have been\ndifferent. A reasonable probability is a probability sufficient\nto undermine confidence in the outcome.” Strickland,\n466 U.S. at 694. To make this assessment, we “compare the\nevidence that actually was presented to the jury with the\nevidence that might have been presented had counsel acted\ndifferently.” Clark v. Arnold, 769 F.3d 711, 728 (9th Cir.\n2014) (quoting Murtishaw v. Woodford, 255 F.3d 926, 940\n(9th Cir. 2001)). A defendant faces a higher burden of\nshowing prejudice at the guilt phase than at the penalty\nphase. See Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006)\n(“The bar for establishing prejudice is set lower in death-\npenalty sentencing cases than in guilt-phase challenges and\nnoncapital cases.”).\n\n 1. The Jury Heard Overwhelming Evidence of\n Hernandez’s Specific Intent to Rape and Kill\n Bristol and Ryan\n\n Although Hernandez’s trial counsel’s performance was\ndeficient, Hernandez must also show that he suffered\nprejudice due to counsel’s conduct. See Strickland, 466 U.S.\nat 687. To succeed here, Hernandez must show a reasonable\nprobability of a different outcome as to both first-degree\nmurder theories that were available to the jury: (1) willful,\ndeliberate, and premeditated murder, and (2) felony murder\nwith rape as the predicate felony. That is because the jury\nhad two independent paths to convict Hernandez of first-\ndegree murder. While the jury was required to find that the\nkilling was willful, deliberate, premeditated, and with malice\n\f14 HERNANDEZ V. CHAPPELL\n\naforethought under the first theory, it needed only to find that\nHernandez had the specific intent to rape under the second\ntheory of felony murder. See Hernandez, 47 Cal. 3d at 346–\n51.\n\n Ample evidence of Hernandez’s specific intent to rape\nand kill both Bristol and Ryan supported the jury’s verdict.\nFirst, the two crimes were committed within days of each\nother and were strikingly similar, strongly suggesting\npremeditation. Bristol and Ryan were around the same\nage—twenty-one and sixteen, respectively—and both had\nshoulder-length blonde hair and similar body types.\nHernandez, 47 Cal. 3d at 328, 341. Both victims were\nenticed into Hernandez’s van, raped, and sodomized. Id. at\n332–33. Hernandez taped Bristol’s wrists, ankles, and\nmouth with duct tape; tape was also found near Ryan’s body.\nId. at 328, 332. Both victims suffered “extremely similar\nand extremely rare” wounds to the vagina and anus, likely\ncaused by forcible insertion of a large object, possibly a\nbaseball bat. After each woman struggled and screamed,\nHernandez strangled them. Both women were found in the\nearly morning hours, lying naked on their backs, abandoned\nin grassy fields near schools. Hernandez threw both of their\nclothes out of his van after driving away from their bodies.\nTheir bodies bore other similar injuries—wounds inflicted\nby punches to the mouth, significant bruising around their\nnecks, bite marks on their breasts, “puncture-wound type\ninjuries to the nipples,” and “singed or burned pubic hair.”\nThe injuries “carried significant sexual overtones,” and\n“specifically sexual violence [was] repeated in almost every\ndetail with both victims.” Id. at 350. The substantial\nsimilarities between the crimes showed that Hernandez\nintended and premeditated both rapes and murders. Cf. id.\nat 341 (characterizing the offenses as “‘signature’ crimes—\nbecause of the unique nature of each killing, it was\n\f HERNANDEZ V. CHAPPELL 15\n\nreasonable to believe the same person committed them\nboth”).\n\n Second, Hernandez’s confession was powerful evidence\nof his intent. He explained the beginning of his attack on\nBristol as follows:\n\n [Bristol] started telling me about all her\n problems, and I was mad, and I told her not\n to tell me about her problems, and then she\n started bitching, and I just stopped my van. I\n got out, walked around and told her to get out,\n and she wouldn’t get out, so I hit her, and I\n dragged her out of my van, and then she told\n me that she’d do anything, and I thought\n about that for a minute, and—I don’t know it\n was just that I was drunk and I was in a weird\n mood, and I just took her and I threw her in\n the back . . . and then I told her to get out and\n get in the front, . . . and I proceeded to drive\n ....\n\n(Emphases added). Hernandez parked at another location\nand told Bristol to “get in the back” and “take off her\nclothes.” There was no exit from the back of the van.\nHernandez, 47 Cal. 3d at 345 n.18. Hernandez described\nwhat happened next:\n\n [We] had sexual intercourse once, then I was\n getting up and getting ready to let her go, and\n I didn’t really have her—you know—\n forcibly. I guess maybe she thought I did, but\n I don’t know—you know. I proceeded to get\n up and get my clothes on, and I was going to\n let her out . . . .\n\f16 HERNANDEZ V. CHAPPELL\n\n(Emphases added). While Hernandez tried to minimize his\nconduct by claiming that they had consensual intercourse,\nhis statement reveals, in several respects, his awareness of\nBristol’s lack of consent and his specific intent to rape her—\npondering her plea that she would “do anything[;]” driving\nto a different location; ordering her to get into the back of\nthe van and take off her clothes; and, after raping her,\nadmitting that he was preparing to “let her go” or “let her\nout.”\n\n Tragically, Hernandez’s violence only increased as the\nevening progressed. As Bristol struggled and screamed,\nHernandez went “bezerk,” and, in his own words:\n\n I just threw her over, taped her up . . . I taped\n her wrists. I taped her legs . . . [a]round the\n ankles, and then I taped her around the hair,\n and then I proceeded to fuck her in the\n ass. . . . [A]nd then I told her that if she was\n good after that; I told her if she was going to\n be cool, I’d let her up[,] and I was going to let\n her go, and then when I let her up, she started\n just kicking and hitting, and kicking and\n hitting me, so I just put my hand over her and\n I grabbed some piece of material . . . I pushed\n that over her face . . . and then—uh—she\n stopped moving.\n\nHernandez also admitted to “forc[ing] [Bristol] up against\nthe hot engine cowling of the van in order to burn her\nbreasts.” Hernandez, 47 Cal. 3d at 332. His motivation was\nclear by his own admission: he suffocated Bristol as\npunishment for not “being cool” after he violently raped and\nsodomized her. And the acts Hernandez took to render\nBristol “totally defenseless”—attacking her in the back of\n\f HERNANDEZ V. CHAPPELL 17\n\nthe van, from which she could not escape, and taping her\narms, legs, and mouth—also suggested premeditation and\nintent to kill. See Crittenden v. Ayers, 624 F.3d 943, 963\n(9th Cir. 2010) (viewing petitioner’s gagging and tying of\nhis victims as evidence of premeditation supporting a first-\ndegree murder conviction). In fact, Bristol’s “wrists and\nankles had been bound so tightly that there were ligature\nmarks on the skin and hemorrhage in the underlying tissues.”\nHernandez, 47 Cal. 3d at 344–45.\n\n Hernandez’s confession contains even more compelling\ndetails of his intent to rape and murder Ryan. Ryan and\nHernandez were friends, and spent time together in a group\nthe evening of her death. The California Supreme Court\ndescribed Hernandez’s actions as follows:\n\n During the evening of playing pool and\n drinking beer, it was evident to several in the\n group that defendant was focusing\n considerable unwelcome attention on Ryan.\n He tried to put his arms around her, pinched\n her in the buttocks and put his hands on her\n hips, but she kept pushing him away. . . .\n Outside, defendant told Jackson he wanted to\n make a “sandwich” out of Ryan; he wanted\n to “fuck her in the butt until she screams.” He\n told Jackson he would “get some tonight or\n tomorrow night.”\n\nHernandez, 47 Cal. 3d at 329–30. 3 Hernandez’s aggressive\nunwanted sexual touching of Ryan at the bar, and his stated\n\n 3\n Ryan’s stepmother also testified to suspicious circumstances\nsurrounding her daughter’s room. The morning after Ryan’s death, her\nstepmother “found the living room lights still on and the drapes and\n\f18 HERNANDEZ V. CHAPPELL\n\nintent to later “make a ‘sandwich’” out of Ryan and “fuck\nher in the butt until she screams” strongly suggest that he\nplanned ahead of time to sexually assault and rape her. That\nsame evening, Ryan ended up in his van, and although\nHernandez again tried to minimize his conduct by claiming\nthat she “submitted freely,” the evidence suggests that she\nwas forced. Before the group of friends dispersed from the\nbar, Ryan’s friend overheard Hernandez asking Ryan to\nmeet up with him after the gathering, and Ryan responding\n“no.” Hernandez admitted to the police that Ryan was\n“hesitant” about having sex with him but when he got\n“mad,” she finally “said oh, okay” because he had pushed\nher arms down and was about to force himself upon her.\nDespite Hernandez’s self-serving statements minimizing the\namount of force used, his intent to rape Ryan is clear.\n\n Hernandez’s confession, coupled with the physical\nevidence, also revealed his intent to murder Ryan. After she\nwas raped and forcibly sodomized, Ryan, like Bristol, was\nscreaming, kicking, and resisting. Hernandez described his\nresponse as follows:\n\n I grabbed her, [held] onto her, and—uh—\n then she gargled—she like sputtered up—you\n know—I guess I was choking her too hard,\n and then I let go, and then she was—I told her\n to mellow out and to start putting her clothes\n on, and I turned around to start doing it again,\n\nsliding glass door open. . . . [H]er bedroom window was open and\nmissing its screen.” Hernandez, 47 Cal. 3d at 328–29. Ryan had told\nher stepmother she was going out to play pool, but her pool cue and\njacket were on the living room floor. Id. at 329. “[Her] purse was outside\non the ground and items from the purse were spilled out.” Id. The jury\ncould have believed that Hernandez kidnapped Ryan, which would\nsupport a finding of specific intent to rape.\n\f HERNANDEZ V. CHAPPELL 19\n\n and then she started screaming again and\n everything, and I just—I don’t know—I\n grabbed her, and I just—I tried to shut her up\n and . . . [g]rabbed her around the throat . . .\n [w]ith one of my hands, and put one of my\n hands over her mouth to keep her quiet.\n\nAs Hernandez strangled Ryan, he was thinking of how he\nhad killed Bristol in the same way just days before. Ryan\nhad significant bruising around her neck—showing his\nintent to kill her, not simply quiet her screams. See People\nv. Frank, 38 Cal 3d. 711, 733–34 (1985) (stating that\n“strangulation . . . [is] a manner of killing [that] shows at\nleast a deliberate intent to kill” and that can “support an\ninference of premeditation and deliberation”). Significantly,\nnot only was he fully aware of his actions, Hernandez also\nhad the presence of mind to contemplate the consequences.\nAfter he killed Ryan, he cut her torso with a piece of glass in\na deliberate attempt to make her body look different from\nBristol’s. Hernandez’s chilling insight into his own\nmotivations gave the jury powerful, direct evidence of his\nwillfulness, deliberation, and premeditation.\n\n Finally, the level of detail in Hernandez’s confession\nprovided further compelling proof that he was aware of and\nintended his actions. In a largely chronological fashion,\nHernandez walked the police through the events leading up\nto the rapes and murders, including very specific\ndescriptions of his actions. Apart from detailing his thoughts\nand motivations, see supra, Hernandez admitted to\nmutilating both of his victims’ bodies and described the\nnature of the markings in detail. Hernandez described\nburning Bristol and Ryan’s pubic hair, explaining that he\nacted out of anger. He specifically remembered burning\nBristol’s left breast with a match, distinguishing that burn\n\f20 HERNANDEZ V. CHAPPELL\n\nfrom the burns to her right breast caused by pushing her up\nagainst the hot car during forcible sodomy. He recounted\ncutting Ryan’s nipple with a piece of broken glass.\nSignificantly, Hernandez described all these details before\nseeing any pictures of Bristol or Ryan’s bodies.\n\n In sum, the jury heard overwhelming evidence that\nHernandez had the specific intent to rape both Bristol and\nRyan, and that he murdered both women willfully,\ndeliberately, and with premeditation.\n\n 2. The Relatively Weak Diminished Capacity\n Evidence Would Not Have Resulted in a\n Reasonable Probability of a Different Outcome\n\n The strength of the evidence of Hernandez’s intent to\nrape and kill contrasts sharply with the relatively weak\n“evidence that might have been presented had counsel acted\ndifferently”—specifically, evidence that his mental\ncondition rendered him incapable of forming the requisite\nintent. See Clark, 769 F.3d at 728 (quoting Murtishaw,\n255 F.3d at 940).\n\n At his post-conviction hearing, Hernandez presented\ntestimony from five experts: psychologist June Madsen\nClausen, psychiatrist Dorothy Otnow Lewis, criminologist\nSheila Balkan, clinical psychologist Charles Sanislow, and\nneuropsychologist Ruben Gur. Hernandez v. Martel, 824 F.\nSupp. 2d 1025, 1043 (C.D. Cal. 2011). Dr. Sanislow’s and\nDr. Gur’s testimony was used to rebut the findings of the\n\f HERNANDEZ V. CHAPPELL 21\n\nstate’s expert, clinical psychologist Daniel Martell. 4 Id. at\n1062–65.\n\n Dr. Sanislow merely reviewed and commented on\nMartell’s discredited evaluation of Hernandez. He found\nthat the absence of bipolar indications in Martell’s then-\nrecent testing of Hernandez “[was] not a sufficient basis on\nwhich to conclude that Mr. Hernandez is not bipolar,” and\nthat a negative finding on the administered psychometric test\n“does not rule out the presence or past presence of\npsychopathology (e.g., dissociative disorders, bipolar or\nother affective disorders).” (Emphases added). While his\nconclusions were sufficient, among other reasons, to lead the\ndistrict court to discount Martell’s evaluation, they are\ncertainly not a conclusive diagnosis of bipolar disorder.\n\n Dr. Gur, the second rebuttal expert, believed Hernandez\nsuffers from brain dysfunction. He found “clear[]\nindicat[ions] that [] Hernandez has deficits in understanding\nand interpreting facial expressions of affect, which would\nprovide” the basis “for such confusion and misperceptions\nto have occurred during the commission of the crimes[,] . . .\ninterfer[ing] with his ability to comprehend and formulate an\nappropriate response to the victims’ expressions of\nresistance and fear,” and “significantly interfer[ing] with his\nability to make the right judgment.” But a lack of good\njudgment is not equivalent to the inability to form specific\nintent. Moreover, Hernandez’s own statements—even those\n\n\n\n 4\n We give no independent consideration to Martell’s findings\nbecause the district court found significant problems with his\nmethodology and credibility. See Hernandez, 824 F. Supp. 2d at 1056.\n\f22 HERNANDEZ V. CHAPPELL\n\nmade to Dr. Gur himself during their evaluation 5—belie the\nnotion that Hernandez could not perceive the emotions of his\nvictims. On the contrary, Hernandez was able to articulate\nthat his victims were afraid, did not consent to sexual\nactivity, and resisted him. And while, in deposition, Dr. Gur\nconcluded that “either schizophrenia or bipolar illness is\nprobably applicable in his case,” he also admitted that\nHernandez could suffer from something else entirely, “such\nas attention deficit, hyperactivity disorder, [or] impulse\ncontrol.” Hernandez, 824 F. Supp. 2d at 1063 (emphasis\nadded) (quoting Dr. Gur’s Dep. Tr.).\n\n Dr. Lewis diagnosed Hernandez with psychosis and\nbipolar disorder, found that he had “compromised mental\nfunctioning,” and concluded that his “capacity to form the\nspecific intent to rape and kill[] was substantially impaired”\nat the time he committed the crimes. Dr. Balkan, a\ncriminologist, provided a social history of Hernandez’s life\nand otherwise largely quoted Dr. Lewis’s conclusions.\nWhile these evaluations raise concerns about Hernandez’s\nmental stability, they do not show that Hernandez lacked the\nability to form the necessary specific intent for these crimes.\nDr. Lewis found Hernandez’s mental state to be\n“compromised” and “substantially impaired,” but not\nnecessarily inconsistent with the ability to form specific\nintent to murder and rape. And, as she acknowledged, no\nsingle factor in Hernandez’s difficult life accounts for his\nviolent crimes.\n\n\n 5\n Hernandez told Dr. Gur that Bristol “did not consent to anal\nintercourse.” Dr. Gur does not explain how he concludes that Hernandez\ncould have the mental capacity to commit forcible sodomy in that instant,\nbut lack the capacity to form specific intent immediately before (while\nraping Bristol) or after (while strangling Bristol).\n\f HERNANDEZ V. CHAPPELL 23\n\n The final habeas expert was Dr. Clausen, whose opinion\ncomes closest to stating definitively that Hernandez could\nnot have had the necessary specific intent. Dr. Clausen\nopined that “Hernandez was in a trauma-induced\ndissociative state” at the time of his crimes, “and as a result,\nhas no subsequent actual recollection of the events that\ntranspired.” But the suggestion by Dr. Clausen that\nHernandez was in a dissociative state and “had no\nsubsequent actual recollection” of his crimes is totally\ncontradicted by his detailed confession, the voluntariness\nand reliability of which Hernandez does not dispute.\n\n Even generously construed, these opinions are grossly\ninadequate to undermine the evidence that Hernandez was\ncapable of forming, and in fact formed, the intent to rape and\nkill Bristol and Ryan. First, the experts fail to account for\nthe striking similarities between the two crimes. Dr. Gur\ntheorized that mental impairments like Hernandez’s could\ncause someone to “engage in a complex set of behaviors\nwithout intent or premeditation,” leading to “highly\norganized if somewhat ritualistic behavior.” But\nHernandez’s behavior does not suggest ritual so much as it\nexpresses an intent to rape and murder Bristol and Ryan\nbecause, as Hernandez himself explained, he was angry at\ntheir resistance. And none of the other experts even\nattempted to explain how Hernandez could have committed\ntwo such similar crimes within a five-day period without\nintending to do so.\n\n Second, the experts’ reports also fail to counter the\noverwhelming evidence that Hernandez intended to rape\nBristol and Ryan. The habeas experts uncovered no\nevidence to suggest Hernandez was in a dissociative state\nwhen he “thought about” Bristol’s offer to “do anything” to\nsave herself from his violence; when, earlier in the evening,\n\f24 HERNANDEZ V. CHAPPELL\n\nhe sexually harassed Ryan and bragged of plans to “get\nsome” later; or when he pushed Ryan’s arms down and raped\nher after she said no to sexual intercourse. In fact, even Dr.\nClausen, who speculated that the police fed Hernandez the\ndetails of his confession and that Hernandez in fact did not\nremember much of the crimes due to dissociation, stated that\nHernandez had “personal memory up to and including\nhaving sex with Edna Bristol in the back of his van.” Dr.\nGur’s dissociation theory was similarly temporally limited,\nnoting that Hernandez’s “clinical profile is further indication\nthat he was in a dissociative state during his commission of\nthe crimes, or at least during some portion of that epoch,\ne.g., when he killed or inflicted post-mortem injuries.”\n(Emphasis added). Thus, even assuming Hernandez\ndissociated during the murders, the experts’ conclusions\nactually support the inference that Hernandez was at least\naware of, and intended, his actions during the rapes. The\nintent to rape alone is enough to support the murder\nconvictions.\n\n Finally, the experts’ dissociation theory fails to account\nfor Hernandez’s detailed explanation of his actions,\nthoughts, and motivations during the crimes. Drs. Gur and\nLewis surmised that Hernandez’s confession suggested that\nhe was in “an altered mental state” on the nights of the\ncrimes based on his statement that he “wasn’t even feeling\n[that] [he] did it,” and his request for psychiatric help\nbecause he “[didn’t] know what would make [him] do this.”\nBut “a reasonable jury could have easily chosen to disbelieve\n[these] self-serving” statements in light of Hernandez’s\nextensive account of his innermost thoughts and motivations\non the nights of the crimes. See United States v. Nicholson,\n677 F.2d 706, 709 (9th Cir. 1982). Moreover, while Drs.\nGur and Lewis make much of the fact that Hernandez is\npersistently “unable” to explain why he committed the brutal\n\f HERNANDEZ V. CHAPPELL 25\n\nmurders, this assertion is squarely contradicted by the\nrecord. Hernandez provided a plausible, albeit deeply\ndisturbing explanation of his motives—he was angry at\nBristol for talking too much, kicking him, and kicking a hole\nin his van, and he was angry at Ryan for screaming and\ntrying to escape. His explanation of how he expressed that\nanger (rape, forced sodomy, and strangulation) suggests\nintentional, premeditated actions and not dissociation or a\nlack of control that would negate the mens rea required for a\nfirst-degree murder conviction. As the California Supreme\nCourt correctly explained, “clearly the killings occurred\nwhen the victims screamed and struggled to get away. They\noccurred as a direct product of the sexual assaults and to\nsilence the victims.” Hernandez, 47 Cal. 3d at 348.\n\n Given the weakness of the omitted experts’ evaluations\nwhen compared to the overwhelming evidence presented to\nthe jury, we hold that there is no reasonable possibility of a\ndifferent outcome. See Strickland, 466 U.S. at 694. Thus,\nHernandez’s ineffective assistance of counsel claim\npredicated on counsel’s failure to present a diminished\ncapacity defense based on mental illness fails.\n\nC. Defense Counsel Was Neither Ineffective for Failing\n to Subpoena Kostiuk as a Witness, Nor Was\n Hernandez Prejudiced\n\n Hernandez argues that counsel was ineffective for failing\nto call Laura Kostiuk as a witness. Kostiuk, according to\nHernandez, might have offered testimony that Hernandez\nand Ryan had previously engaged in consensual sex.\nHernandez contends that this evidence would have undercut\nthe state’s theory that he intended to rape Ryan.\n\n Prior to trial, Hernandez’s trial counsel had planned to\ncall Kostiuk as a defense witness and had subpoenaed her.\n\f26 HERNANDEZ V. CHAPPELL\n\nBut when the trial date was continued, counsel “simply\nforgot” to re-subpoena Kostiuk. Defense counsel explained\nthat his failure to re-subpoena Kostiuk was due to his\ndiagnosis of cancer around the time of the second, actual trial\ndate. He would have wanted Kostiuk’s testimony “because\nthe issue was whether . . . [Hernandez] had voluntary or\ninvoluntary sexual intercourse” with Ryan, and he “could\n[have done] a lot with [her testimony] and didn’t.”\nHernandez’s counsel’s failure to call Kostiuk as a witness\nwas based on neglect, not strategy.\n\n Nevertheless, we agree with the district court that\ncounsel’s failure to call Kostiuk as a witness does not\nconstitute deficient performance. While “simply\nforg[etting]” to subpoena a witness certainly could constitute\ndeficient performance, see, e.g., Lord v. Wood, 184 F.3d\n1083, 1093–96 (9th Cir. 2009), the error did not rise to the\nlevel of deficient performance in this case. “While the Sixth\nAmendment requires an attorney to look for evidence that\ncorroborates the defense he pursues, the Sixth Amendment\nhas not been expanded to require an attorney to hunt down\nsuch marginally relevant and indirectly beneficial evidence.”\nHendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).\nAt best, Kostiuk may have testified that on a prior occasion,\nHernandez and Ryan engaged in consensual sex. Such\nevidence has minimal probative value, especially in light of\nthe significant evidence that, on the evening of her death, she\nwas brutally raped and sodomized. As the medical examiner\nexplained, Ryan’s vagina and anus suffered from “extremely\nrare” pre-mortem bruising and tearing. Because “the failure\nto take a futile action can never be deficient performance,”\nRupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), counsel\ndid not render ineffective assistance by failing to call\nKostiuk to testify during Hernandez’s trial.\n\f HERNANDEZ V. CHAPPELL 27\n\n Even assuming that counsel’s performance was\nconstitutionally deficient, as discussed, Hernandez did not\nsuffer any prejudice due to the overwhelming evidence of\nhis intent to rape and murder Ryan.\n\n * * *\n\n We affirm the district court’s denial of a writ of habeas\ncorpus as to Hernandez’s guilt-phase claims relating to the\nfirst-degree murder convictions.\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
9,022,999	Francis G. HERNANDEZ v. Kevin CHAPPELL, Warden, California State Prison At San Quentin	Hernandez v. Chappell	2019-01-14	No. 11-99013	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Nguyen", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016237/", "author_raw": ""}]}	NGUYEN	NGUYEN		0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022999/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Francis G. HERNANDEZ v. Kevin CHAPPELL, Warden, California State Prison At San Quentin\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,581,580		Sunil Rayamajhi v. Matthew Whitaker	2019-01-15	16-70534	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Susan P. Graber, Stephanie Dawn Thacker,* and Mark J. Bennett, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SUNIL RAYAMAJHI, No. 16-70534\n Petitioner,\n Agency No.\n v. A099-912-460\n\n MATTHEW G. WHITAKER, Acting\n Attorney General, OPINION\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: Susan P. Graber, Stephanie Dawn Thacker,\n and Mark J. Bennett, Circuit Judges.\n\n Opinion by Judge Graber;\n Concurrence by Judge Bennett\n\n\n\n\n \n The Honorable Stephanie Dawn Thacker, Circuit Judge for the\nUnited States Court of Appeals for the Fourth Circuit, sitting by\ndesignation.\n\n2 RAYAMAJHI V. WHITAKER\n\n SUMMARY\n\n\n Immigration\n\n The panel dismissed in part and denied in part a petition\nfor review of Board of Immigration Appeals’ denial of\nasylum and withholding of removal to a citizen of Nepal\nunder the material support terrorist bar.\n\n The panel held that petitioner’s argument for a duress\nexception to the material support bar is foreclosed by\nAnnachamy v. Holder, 733 F.3d 254 (9th Cir. 2013),\noverruled in part on other grounds by Abdisalan v. Holder,\n774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does\nnot constitute a colorable legal or constitutional question\nproviding jurisdiction over the otherwise unreviewable\nmaterial support determination.\n\n The panel held that there is no de minimis funds\nexception to the material support bar. The panel explained\nthat the plain text of the statute, 8 U.S.C.\n§ 1182(a)(3)(B)(iv)(VI), states that funds knowingly given\nto a terrorist organization are material support, regardless of\nthe amount given. The panel further held that even if the\nstatute is ambiguous on this point, the Board’s interpretation\nin In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there\nis no de minimis exception, was based on a permissible\nconstruction of the statute, and therefore is entitled to\nChevron deference.\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n RAYAMAJHI V. WHITAKER 3\n\n The panel held that because petitioner admitted that he\ngave about $50 to someone whom he knew was a member of\nthe Maoists, a designated terrorist organization at that time,\nsubstantial evidence supported the Board’s determination that\nhe gave material support to a terrorist organization, rendering\nhim ineligible for asylum and withholding of removal.\n\n Concurring in part and concurring in the judgment, Judge\nBennett disagreed with the majority that the plain text of the\nstatute unambiguously excludes de minimis funds from the\ndefinition of material support, but agreed with the majority\nthat the Board’s interpretation of the statute in In re A-C-M-\nwas permissible, and therefore entitled to Chevron deference.\n\n\n COUNSEL\n\nGeorge T. Heridis (argued), Law Offices of Gill & Heridis,\nSan Jose, California, for Petitioner-Appellant.\n\nDaniel I. Smulow (argued), Senior Counsel for National\nSecurity; Christopher C. Fuller, Deputy Chief, National\nSecurity Unit; Office of Immigration Litigation, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent-Appellee.\n\n4 RAYAMAJHI V. WHITAKER\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Petitioner Sunil Rayamajhi fled Nepal in 2009 because a\nterrorist organization tortured and threatened him repeatedly.\nBefore fleeing, Petitioner knowingly gave money to a\nmember of the terrorist organization at least once. After\narriving in the United States, Petitioner sought asylum,\nstatutory withholding of removal, withholding of removal\nunder the Convention Against Torture (“CAT”), and deferral\nof removal under CAT.\n\n An immigration judge (“IJ”) granted Petitioner deferral of\nremoval under CAT, but denied him asylum and both forms\nof withholding of removal. The IJ found Petitioner ineligible\nfor asylum and withholding of removal because Petitioner\nprovided “material support” to a terrorist organization, as\ndefined in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The Board of\nImmigration Appeals (“BIA”) affirmed the denials of asylum\nand withholding of removal and left undisturbed the grant of\ndeferral of removal. Petitioner seeks review of the BIA’s\ndecision. We have jurisdiction under 8 U.S.C. § 1252(a). We\ndeny the petition in part and dismiss it in part.\n\n Petitioner is a Nepali citizen. In 2003, he took an\nadministrative position with Doctors Without Borders, an\ninternational nongovernmental organization. During the early\nstages of his work for Doctors Without Borders, Petitioner\nbecame a target of a Nepali terrorist organization called\nthe Maoists. The Secretary of State designated the Maoists\nas a “terrorist organization” under 8 U.S.C.\n§ 1182(a)(3)(B)(vi)(II) in 2004, but revoked that designation\nin 2012. 77 Fed. Reg. 54,944-02, 54,944 (Sept. 6, 2012).\n\n RAYAMAJHI V. WHITAKER 5\n\n From 2004 to 2008, Maoists beat Petitioner twice,\ndemanded that he give them money and join their political\nparty, and threatened him and his family. In February 2009,\na Maoist approached Petitioner at a taxi stand and demanded\nmoney. Petitioner recognized the Maoist as one of the men\nwho had beaten him in the past. Fearing what the Maoist\nmight do to him if he did not comply, Petitioner gave the man\nthe equivalent of about $50.1 Petitioner left Nepal soon after\nthat incident.\n\n Petitioner entered the United States in June 2009 on a\nvisitor’s visa. He applied for asylum and withholding of\nremoval in December 2009. An IJ found that, even\nconsidering only the 2009 “donation,” Petitioner gave\nmaterial support to the Maoists in the form of money. Thus,\nthe IJ ruled that the Immigration and Nationality Act’s\n(“INA”) “material support bar” rendered Petitioner ineligible\nfor asylum and withholding of removal. The IJ also held that\nshe lacked jurisdiction to grant an exception on the ground of\nduress. The IJ ordered Petitioner removed to Nepal, but\ndeferred his removal under CAT because he likely would\nsuffer torture if sent back to Nepal. The material support bar\ndoes not apply to deferral of removal under CAT. 8 C.F.R.\n§ 1208.17(a). Petitioner appealed the denial of asylum and\nwithholding of removal, and the government appealed the\ngrant of deferral of removal.\n\n On appeal, the BIA rejected Petitioner’s argument that the\nmaterial support bar did not apply to him, holding: “There is\n\n\n 1\n The parties dispute whether Petitioner also knowingly gave money\nto Maoists in 2004 and 2005 when they demanded money from him. We\nneed not resolve that dispute because, as explained in text, the\nunchallenged event in 2009 is disqualifying.\n\n6 RAYAMAJHI V. WHITAKER\n\nno de minimis exception to the material support bar” and “no\nduress exception to the material support bar.” The BIA also\nconcluded that the IJ had not properly considered the country\ncondition evidence in the record as it pertained to CAT\ndeferral. Accordingly, the BIA remanded the case to the IJ\nsolely for further consideration of Petitioner’s claim for CAT\ndeferral. On remand, the IJ incorporated the facts and\nprocedural history of her prior decision and the BIA’s prior\ndecision. She again granted Petitioner CAT deferral.\n\n Petitioner again appealed to the BIA and contested the\nIJ’s denials of asylum and withholding of removal under the\nmaterial support bar. In 2016, the BIA issued its second\ndecision, reaffirming its dismissal of Petitioner’s asylum and\nwithholding claims. The government did not appeal the IJ’s\nsecond grant of CAT deferral, so that portion of the ruling\nremains in effect.\n\n Petitioner timely seeks our review. He argues that the\nBIA and the IJ erred by denying him asylum and withholding\nof removal under the material support bar, because he gave\nmoney to the Maoists under duress and gave only de minimis\nsupport. We review only the BIA’s opinion, except to the\nextent that it expressly adopted portions of the IJ’s decision.\nDoe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013). We review\nthe BIA’s fact-finding for substantial evidence and may grant\na petition only if the evidence compels a conclusion contrary\nto the BIA’s conclusion. Id. We review de novo the BIA’s\ndetermination of purely legal questions, but defer to the\nBIA’s legal interpretation of the INA unless that\ninterpretation contradicts the statute’s plain meaning.\nSimeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)\n(citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,\n467 U.S. 837, 843 n.9 (1984)).\n\n RAYAMAJHI V. WHITAKER 7\n\n A. Duress\n\n In Annachamy v. Holder, 733 F.3d 254, 267 (9th Cir.\n2013), overruled in part on other grounds by Abdisalan v.\nHolder, 774 F.3d 517, 526 (9th Cir. 2015) (en banc), we held\nthat “the material support bar does not include an implied\nexception for individuals” who give support to a terrorist\norganization while “under duress.” Annachamy forecloses\nPetitioner’s argument that a “duress” exception to the\nmaterial support bar applies here.\n\n Because Petitioner’s duress argument is not colorable in\nview of our precedent, we lack jurisdiction to consider it.\nUnder 8 U.S.C. § 1158(b)(2)(D), we lack jurisdiction to\nconsider a petition for review of the BIA’s denial of asylum\nand withholding of removal pursuant to the material support\nbar. Under 8 U.S.C. § 1252(a)(2)(D), however, we retain\njurisdiction (despite the BIA’s applying the material support\nbar) only over “colorable constitutional claims or questions\nof law.” Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.\n2006) (per curiam). Accordingly, we dismiss the petition in\npart.\n\n B. De Minimis Support\n\n A noncitizen who has engaged in “terrorist activity”\ncannot obtain asylum or withholding of removal. See\n8 U.S.C. § 1182(a)(3)(B)(i)(I) (stating that an alien who\nhas engaged in “terrorist activity” is inadmissible);\nid. § 1158(b)(2)(A)(v) (stating that an alien described\nin § 1182(a)(3)(B)(i)(I) is ineligible for asylum); id.\n§ 1227(a)(4)(B) (stating that any alien described in\n§ 1182(a)(3)(B) is removable); id. § 1231(b)(3)(B)(iv)\n(stating that an alien described in § 1227(a)(4)(B) is ineligible\n\n8 RAYAMAJHI V. WHITAKER\n\nfor withholding of removal). As relevant here, “engage in\nterrorist activity” means “to commit an act that the actor\nknows, or reasonably should know, affords material support,\nincluding a safe house, transportation, communications,\nfunds, transfer of funds or other material financial benefit,\nfalse documentation or identification, weapons (including\nchemical, biological, or radiological weapons), explosives, or\ntraining,” to a terrorist organization or a member of a terrorist\norganization, unless the alien did not know (and should not\nreasonably have known) that the organization was a terrorist\norganization. Id. § 1182(a)(3)(B)(iv)(VI).\n\n In its decisions on Petitioner’s claims, the BIA held that\nno de minimis exception to the material support bar exists. In\na published opinion issued several years later, the BIA held\nthe same: “[A]n alien provides ‘material support’ to a\nterrorist organization, regardless of whether [the act] was\nintended to aid the organization, if the act has a logical and\nreasonably foreseeable tendency to promote, sustain, or\nmaintain the organization, even if only to a de minimis\ndegree.” In re A-C-M-, 27 I. & N. Dec. 303, 308 (B.I.A.\n2018) (emphasis added)); see also id. at 307 (“In sum,\n‘material support’ is a term of art” that refers to “aid of a\nmaterial and normally tangible nature, and it is not\nquantitative.” (footnote omitted)). Whether or not we afford\nChevron deference to the BIA’s interpretation, we agree that\nthe material support bar does not contain an exception for\npeople who give merely de minimis funds to a terrorist\norganization.\n\n If a statute is unambiguous, we end our analysis by\nenforcing its text. Chevron, 467 U.S. at 843. In relevant part,\n§ 1182(a)(3)(B)(iv)(VI) defines engaging in terrorist activity\nas giving something that “affords material support, including\n\n RAYAMAJHI V. WHITAKER 9\n\na safe house, transportation, communications, funds, transfer\nof funds or other material financial benefit, false\ndocumentation or identification, weapons (including\nchemical, biological, or radiological weapons), explosives, or\ntraining,” to a terrorist organization. (Emphases added.) The\nstatute provides a list of things that constitute “material\nsupport.” “Funds” fall under this category, and the statute\ndoes not establish any numerical threshold for money to\nqualify as material support. The inclusion in the list of the\nphrase “other material financial benefit” does not assist\nPetitioner. Grammatically, that phrase relates only to\n“transfer of funds” and suggests that “funds” are material per\nse, because a person affords material support by transferring\nfunds or some “other material financial benefit.” Under the\nplain text of § 1182(a)(3)(B)(iv)(VI), “funds” knowingly\ngiven to a terrorist organization are “material support,”2\nregardless of the amount given.\n\n If § 1182(a)(3)(B)(iv)(VI) is ambiguous as to whether it\ncontains an exception for de minimis funds, the BIA’s\ninterpretation merits Chevron deference even though it post-\ndates the BIA’s decision on Petitioner’s claims. Pauley v.\nU.S. Dep’t of Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (per\ncuriam); see also Smiley v. Citibank (S.D.), N.A., 517 U.S.\n735, 744 n.3 (1996) (“Where, however, a court is addressing\ntransactions that occurred at a time when there was no clear\nagency guidance, it would be absurd to ignore the agency’s\ncurrent authoritative pronouncement of what the statute\n\n\n 2\n As noted, an exception applies when the person affording support\ndid not know, and should not reasonably have known, that he was dealing\nwith a terrorist organization. § 1182(a)(3)(B)(iv)(VI). That exception\ndoes not apply here because Petitioner testified that he knew that the man\nto whom he gave money in 2009 was a Maoist.\n\n10 RAYAMAJHI V. WHITAKER\n\nmeans.”). The BIA’s determination that no de minimis\nexception exists “is based on a permissible construction of the\nstatute.” Chevron, 467 U.S. at 843. The BIA found “no\nlegislative history to support taking a quantitative approach”\nto defining “material support.” In re A-C-M-, 27 I. & N. Dec.\nat 307. Moreover, the BIA noted that it would not make\nsense for § 1182(a)(3)(B)(iv)(VI) itself to contain a de\nminimis exception because, in § 1182(d)(3)(B)(i), Congress\ngave the Secretary of Homeland Security the discretionary\nauthority to grant waivers to the material support bar “to\naddress excusable violations including, among other things,\nsupport provided under duress or to only a de minimis\ndegree.” Id. at 308. That grant of discretion would be\nmeaningless if the material support bar did not apply in the\nfirst place.\n\n We hold that the INA’s material support bar contains no\nimplied exception for de minimis aid in the form of funds.\nPetitioner admitted that, in 2009, he gave about $50 to\nsomeone whom he knew was a Maoist. Thus, substantial\nevidence supports the IJ’s finding, adopted by the BIA, that\nPetitioner gave material support to a terrorist organization,\nrendering him ineligible for asylum and withholding of\nremoval.\n\n DISMISSED in part and DENIED in part.\n\n RAYAMAJHI V. WHITAKER 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358833/", "author_raw": "GRABER, Circuit Judge:"}, {"author": "BENNETT, Circuit Judge, concurring", "type": "concurrence", "text": "BENNETT, Circuit Judge, concurring in part and concurring\nin the judgment:\n\n I fully agree with the majority’s discussion of the duress\nissue.\n\n I also agree that the petition should be denied as to the\nmaterial support issue. The agency’s interpretation of the\nmaterial support bar is permissible, and so we must defer to\nit under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,\n467 U.S. 837, 843 (1984), even if, de novo, we might\ninterpret the statute in a different way. But my colleagues\nalso conclude that, under the plain text of the statute,\n“material support” encompasses de minimis support. Maj.\nOp. at 8–9. I respectfully disagree, as Congress has not\n“directly spoken to the precise question at issue.” Chevron,\n467 U.S. at 842.\n\n The material support bar provides that an alien is deemed\nto “engage in terrorist activity” if he commits an act that he\nknows, or reasonably should know,\n\n affords material support, including a safe\n house, transportation, communications, funds,\n transfer of funds or other material financial\n benefit, false documentation or identification,\n weapons (including chemical, biological, or\n radiological weapons), explosives, or training\n\nto a terrorist. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The question\nhere is whether the statute unambiguously defines de minimis\n“funds” as “material support.”\n\n12 RAYAMAJHI V. WHITAKER\n\n I begin with a proposition that the majority does not\ndispute: the word “material,” when modifying “support,” is\npatently ambiguous.1 “Material” has several definitions,\nranging from “more or less necessary” to “important” to\nmerely “having influence or effect.” Black’s Law Dictionary\n976 (6th ed. 1990).2 Not all of these definitions support the\nagency’s interpretation that material support encompasses\nany act that “has a logical and reasonably foreseeable\ntendency to promote, sustain, or maintain the [terrorist]\norganization, even if only to a de minimis degree.” In re A-\nC-M-, 27 I. & N. Dec. 303, 308 (B.I.A. 2018).\n\n I am unable to resolve the ambiguity by consulting\nvarious judicial interpretations of “material.” The meaning\nof “material” depends on the context in which it is used. See\nJabateh v. Lynch, 845 F.3d 332, 344–45 (7th Cir. 2017)\n(Hamilton, J., concurring in part and concurring in the\njudgment). For the crime of making fraudulent statements to\nimmigration officials, “material” means “has a natural\ntendency to influence, or was capable of influencing, the\ndecision of the decisionmaking body to which it was\naddressed.” Kungys v. United States, 485 U.S. 759, 770\n(1988) (internal quotation marks omitted) (reviewing\nhistorical examples and adopting the “most common\n\n\n 1\n As discussed below, the word “material” is used twice in the statute.\nI find “material” unambiguously quantitative when used the second\ntime—as an adjective modifying “financial benefit.”\n 2\n The first iteration of the material support bar was enacted in the\nImmigration Act of 1990, Pub. L. No. 101-649, § 601(a), 104 Stat. 4978,\n5067–70. The varying definitions of “material” have not meaningfully\nchanged since then. See Black’s Law Dictionary 1124 (10th ed. 2014)\n(defining “material” as, inter alia, “[h]aving some logical connection with\nthe consequential facts,” “significant,” “essential”).\n\n RAYAMAJHI V. WHITAKER 13\n\nformulation” of the materiality standard in the context of\nconcealment or misrepresentation). In the False Claims Act\ncontext, however, the Supreme Court has rejected the view\n“that any statutory, regulatory, or contractual violation is\nmaterial so long as the defendant knows that the Government\nwould be entitled to refuse payment were it aware of the\nviolation.” Universal Health Servs., Inc. v. United States,\n136 S. Ct. 1989, 2004 (2016). Unlike in A-C-M-, the\n“materiality standard is demanding” in the False Claims Act\ncontext and does not encompass “minor or insubstantial”\nnoncompliance with a condition of payment in a government\ncontract. Id. at 2003.\n\n There are many other interpretations of “material,” but\nnone of them changes the fact that the word is ambiguous in\nmost contexts. See, e.g., Fed. R. Evid. 401 advisory\ncommittee’s note (explaining that the rule “has the advantage\nof avoiding the loosely used and ambiguous word\n‘material’”). It is not surprising, then, that the only other\ncircuit to consider the issue concluded that the term “material\nsupport” is ambiguous with respect to the question of de\nminimis support. See Ayvaz v. Holder, 564 F. App’x 625,\n628 (2d Cir. 2014) (unpublished) (“Because the term\n‘material’ is ambiguous and the BIA did not address whether\nthe single meal Ayvaz provided qualified as material support,\nremand is appropriate for further clarification in a\nprecedential decision.”).\n\n This case involves support in the form of funds. The\nmajority reasons that Congress rendered the term “material\nsupport” unambiguous in the context of funds. Maj. Op. at 9.\nIn particular, the majority relies on the clause “including . . .\nfunds” in section 1182(a)(3)(B)(iv)(VI) to conclude that\n\n14 RAYAMAJHI V. WHITAKER\n\n“material support” unambiguously includes any funds,\nregardless of amount. Maj. Op. at 9.\n\n I respectfully disagree. In general, terms that follow the\nword “including” are illustrative, not definitional. Fed. Land\nBank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95,\n99–100 (1941). Here, the term “funds” is intended to be\nillustrative of “material support.” When interpreting a\nstatute, we should not prioritize the meaning of illustrative\nterms over the meaning of the illustrated term. See\nChickasaw Nation v. United States, 534 U.S. 84, 89–91\n(2001); United States v. Collins, 854 F.3d 1324, 1333 (11th\nCir.), cert. denied, 138 S. Ct. 503 (2017).\n\n Thus, when a list of terms follows the word “including,”\nnot every conceivable definition of every term in that list\nnecessarily falls within the purview of the statute. See\nChickasaw Nation, 534 U.S. at 89–91; Collins, 854 F.3d at\n1333. When, for example, it appears that Congress\ninadvertently included an illustrative term that conflicts with\nthe plain meaning of the term it is intended to illustrate,\ncourts should disregard the illustrative term as “simply a bad\nexample.” Chickasaw Nation, 534 U.S. at 90. So too, when\na statute uses an illustrative term that is overly broad, courts\nshould adopt a narrowing construction of that illustrative term\nso that it fits the meaning of the term it illustrates. See, e.g.,\nCollins, 854 F.3d at 1333 (construing 18 U.S.C.\n§ 3663A(c)(1)(A)(ii) such that the illustrative phrase\n“including any offense committed by fraud or deceit” refers\nonly to an “offense against property”). Therefore, were\n“material” given a quantitative interpretation, funds would\nmean not any and all amounts of money, but instead a non-de\nminimis amount of money.\n\n RAYAMAJHI V. WHITAKER 15\n\n I agree that Congress might have used the phrase\n“including . . . funds” to define “material support” as\nencompassing any funds, however small the amount. That\nconstruction fits with one permissible interpretation of\n“material.” And, indeed, given the devastating worldwide\nharms inflicted by terrorists, such a decision by Congress\nwould be understandable. But Congress did not\nunambiguously define “material” in that way.3 Another\npermissible interpretation of “material” is “more than de\nminimis.” Under that interpretation, the statute’s illustrative\nuse of the term “funds” should not be construed to encompass\nde minimis funds. If the agency can permissibly interpret\n“material” to mean “more than de minimis,” as surely it can,\nthen it can also permissibly interpret “funds” to fit that\ninterpretation.\n\n The ambiguity is made starker by Congress’s use of the\nillustrative phrase “transfer of funds or other material\nfinancial benefit.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). On the\none hand, this phrase suggests that funds per se constitute a\n“material financial benefit,” as the majority points out. Maj.\nOp. at 8–9. On the other hand, under the majority’s\ninterpretation, the word “material” as used this second time\nis entirely superfluous, as under the majority’s interpretation,\nany financial benefit is necessarily material. If Congress did\nnot intend “material” to be superfluous when used this second\ntime, then “material” cannot be read as anything other than a\n\n\n 3\n If the statute read “material support, including . . . any funds,” then\nI would agree that it is unambiguous as to the issue of de minimis support.\nSee United States v. Gonzales, 520 U.S. 1, 5 (1997). Congress has\nincluded such language in other statutes, but not here. See, e.g., 18 U.S.C.\n§ 2339A(b) (defining “material support or resources” to mean “any\nproperty, tangible or intangible, or service . . .”).\n\n16 RAYAMAJHI V. WHITAKER\n\nquantitative term that excludes from its reach the transfer of\nde minimis (i.e., non-material) financial benefits. What else\ncould “material financial benefit” mean, if the word\n“material” is to be ascribed any meaning at all? See Jabateh,\n845 F.3d at 345 (Hamilton, J., concurring in part and\nconcurring in the judgment) (“While the precise meaning of\n‘material’ depends on its context, it always has the effect of\nraising the threshold of the word it modifies.”). And if\n“material” means “more than de minimis” the second time it\nis used, as I believe it must, we would ordinarily presume it\nhas the same meaning elsewhere in the same statute–\nparticularly elsewhere in the same subsection (indeed the\nsame sentence). See Dep’t of Revenue v. ACF Industries,\nInc., 510 U.S. 332, 341–42 (1994).\n\n Although I concur in the judgment here, the majority’s\nreasoning will have consequences that extend beyond this\ncase. In light of today’s decision, the agency will be unable\nto adopt a different permissible interpretation of the material\nsupport bar in the context of de minimis funds in the future.\nSee Nat’l Cable & Telecomms. Ass’n v. Brand X Internet\nServs., 545 U.S. 967, 982 (2005). We should not prevent the\nagency from continuing to consider the meaning of an\nambiguous, context-specific term based on its expertise and\nexperience in this area.4 See id. at 1002–03.\n\n\n\n 4\n Before its precedential decision in A-C-M-, the BIA concluded in a\nreasoned unpublished decision that “one packed lunch and the equivalent\nof about $4 U.S. dollars, which the terrorists expressly stated would be\nused to buy beer . . . cannot be said to be material.” In re **, 2009 WL\n9133770, at 2 (B.I.A. 2009); see also In re S-K-, 23 I. & N. Dec. 936,\n945 (B.I.A. 2006) (declining to address the respondent’s claim that\nmaterial support does not include de minimis support, but recognizing that\nsuch a claim was “by no means frivolous”).\n\n RAYAMAJHI V. WHITAKER 17\n\n Because I believe Congress did not speak directly to the\nquestion whether “material support” encompasses de minimis\nfunds, I cannot join in the majority’s application of Chevron\nstep one. Otherwise, I concur.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358833/", "author_raw": "BENNETT, Circuit Judge, concurring"}]}	SUSAN P GRABER	STEPHANIE DAWN THACKER	MARK J BENNETT	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581580/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Sunil Rayamajhi v. Matthew Whitaker\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SUNIL RAYAMAJHI, No. 16-70534\n Petitioner,\n Agency No.\n v. A099-912-460\n\n MATTHEW G. WHITAKER, Acting\n Attorney General, OPINION\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: Susan P. Graber, Stephanie Dawn Thacker,\n and Mark J. Bennett, Circuit Judges.\n\n Opinion by Judge Graber;\n Concurrence by Judge Bennett\n\n\n\n\n \n The Honorable Stephanie Dawn Thacker, Circuit Judge for the\nUnited States Court of Appeals for the Fourth Circuit, sitting by\ndesignation.\n\n2 RAYAMAJHI V. WHITAKER\n\n SUMMARY\n\n\n Immigration\n\n The panel dismissed in part and denied in part a petition\nfor review of Board of Immigration Appeals’ denial of\nasylum and withholding of removal to a citizen of Nepal\nunder the material support terrorist bar.\n\n The panel held that petitioner’s argument for a duress\nexception to the material support bar is foreclosed by\nAnnachamy v. Holder, 733 F.3d 254 (9th Cir. 2013),\noverruled in part on other grounds by Abdisalan v. Holder,\n774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does\nnot constitute a colorable legal or constitutional question\nproviding jurisdiction over the otherwise unreviewable\nmaterial support determination.\n\n The panel held that there is no de minimis funds\nexception to the material support bar. The panel explained\nthat the plain text of the statute, 8 U.S.C.\n§ 1182(a)(3)(B)(iv)(VI), states that funds knowingly given\nto a terrorist organization are material support, regardless of\nthe amount given. The panel further held that even if the\nstatute is ambiguous on this point, the Board’s interpretation\nin In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there\nis no de minimis exception, was based on a permissible\nconstruction of the statute, and therefore is entitled to\nChevron deference.\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n RAYAMAJHI V. WHITAKER 3\n\n The panel held that because petitioner admitted that he\ngave about $50 to someone whom he knew was a member of\nthe Maoists, a designated terrorist organization at that time,\nsubstantial evidence supported the Board’s determination that\nhe gave material support to a terrorist organization, rendering\nhim ineligible for asylum and withholding of removal.\n\n Concurring in part and concurring in the judgment, Judge\nBennett disagreed with the majority that the plain text of the\nstatute unambiguously excludes de minimis funds from the\ndefinition of material support, but agreed with the majority\nthat the Board’s interpretation of the statute in In re A-C-M-\nwas permissible, and therefore entitled to Chevron deference.\n\n\n COUNSEL\n\nGeorge T. Heridis (argued), Law Offices of Gill & Heridis,\nSan Jose, California, for Petitioner-Appellant.\n\nDaniel I. Smulow (argued), Senior Counsel for National\nSecurity; Christopher C. Fuller, Deputy Chief, National\nSecurity Unit; Office of Immigration Litigation, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent-Appellee.\n\n4 RAYAMAJHI V. WHITAKER\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Petitioner Sunil Rayamajhi fled Nepal in 2009 because a\nterrorist organization tortured and threatened him repeatedly.\nBefore fleeing, Petitioner knowingly gave money to a\nmember of the terrorist organization at least once. After\narriving in the United States, Petitioner sought asylum,\nstatutory withholding of removal, withholding of removal\nunder the Convention Against Torture (“CAT”), and deferral\nof removal under CAT.\n\n An immigration judge (“IJ”) granted Petitioner deferral of\nremoval under CAT, but denied him asylum and both forms\nof withholding of removal. The IJ found Petitioner ineligible\nfor asylum and withholding of removal because Petitioner\nprovided “material support” to a terrorist organization, as\ndefined in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The Board of\nImmigration Appeals (“BIA”) affirmed the denials of asylum\nand withholding of removal and left undisturbed the grant of\ndeferral of removal. Petitioner seeks review of the BIA’s\ndecision. We have jurisdiction under 8 U.S.C. § 1252(a). We\ndeny the petition in part and dismiss it in part.\n\n Petitioner is a Nepali citizen. In 2003, he took an\nadministrative position with Doctors Without Borders, an\ninternational nongovernmental organization. During the early\nstages of his work for Doctors Without Borders, Petitioner\nbecame a target of a Nepali terrorist organization called\nthe Maoists. The Secretary of State designated the Maoists\nas a “terrorist organization” under 8 U.S.C.\n§ 1182(a)(3)(B)(vi)(II) in 2004, but revoked that designation\nin 2012. 77 Fed. Reg. 54,944-02, 54,944 (Sept. 6, 2012).\n\n RAYAMAJHI V. WHITAKER 5\n\n From 2004 to 2008, Maoists beat Petitioner twice,\ndemanded that he give them money and join their political\nparty, and threatened him and his family. In February 2009,\na Maoist approached Petitioner at a taxi stand and demanded\nmoney. Petitioner recognized the Maoist as one of the men\nwho had beaten him in the past. Fearing what the Maoist\nmight do to him if he did not comply, Petitioner gave the man\nthe equivalent of about $50.1 Petitioner left Nepal soon after\nthat incident.\n\n Petitioner entered the United States in June 2009 on a\nvisitor’s visa. He applied for asylum and withholding of\nremoval in December 2009. An IJ found that, even\nconsidering only the 2009 “donation,” Petitioner gave\nmaterial support to the Maoists in the form of money. Thus,\nthe IJ ruled that the Immigration and Nationality Act’s\n(“INA”) “material support bar” rendered Petitioner ineligible\nfor asylum and withholding of removal. The IJ also held that\nshe lacked jurisdiction to grant an exception on the ground of\nduress. The IJ ordered Petitioner removed to Nepal, but\ndeferred his removal under CAT because he likely would\nsuffer torture if sent back to Nepal. The material support bar\ndoes not apply to deferral of removal under CAT. 8 C.F.R.\n§ 1208.17(a). Petitioner appealed the denial of asylum and\nwithholding of removal, and the government appealed the\ngrant of deferral of removal.\n\n On appeal, the BIA rejected Petitioner’s argument that the\nmaterial support bar did not apply to him, holding: “There is\n\n\n 1\n The parties dispute whether Petitioner also knowingly gave money\nto Maoists in 2004 and 2005 when they demanded money from him. We\nneed not resolve that dispute because, as explained in text, the\nunchallenged event in 2009 is disqualifying.\n\n6 RAYAMAJHI V. WHITAKER\n\nno de minimis exception to the material support bar” and “no\nduress exception to the material support bar.” The BIA also\nconcluded that the IJ had not properly considered the country\ncondition evidence in the record as it pertained to CAT\ndeferral. Accordingly, the BIA remanded the case to the IJ\nsolely for further consideration of Petitioner’s claim for CAT\ndeferral. On remand, the IJ incorporated the facts and\nprocedural history of her prior decision and the BIA’s prior\ndecision. She again granted Petitioner CAT deferral.\n\n Petitioner again appealed to the BIA and contested the\nIJ’s denials of asylum and withholding of removal under the\nmaterial support bar. In 2016, the BIA issued its second\ndecision, reaffirming its dismissal of Petitioner’s asylum and\nwithholding claims. The government did not appeal the IJ’s\nsecond grant of CAT deferral, so that portion of the ruling\nremains in effect.\n\n Petitioner timely seeks our review. He argues that the\nBIA and the IJ erred by denying him asylum and withholding\nof removal under the material support bar, because he gave\nmoney to the Maoists under duress and gave only de minimis\nsupport. We review only the BIA’s opinion, except to the\nextent that it expressly adopted portions of the IJ’s decision.\nDoe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013). We review\nthe BIA’s fact-finding for substantial evidence and may grant\na petition only if the evidence compels a conclusion contrary\nto the BIA’s conclusion. Id. We review de novo the BIA’s\ndetermination of purely legal questions, but defer to the\nBIA’s legal interpretation of the INA unless that\ninterpretation contradicts the statute’s plain meaning.\nSimeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)\n(citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,\n467 U.S. 837, 843 n.9 (1984)).\n\n RAYAMAJHI V. WHITAKER 7\n\n A. Duress\n\n In Annachamy v. Holder, 733 F.3d 254, 267 (9th Cir.\n2013), overruled in part on other grounds by Abdisalan v.\nHolder, 774 F.3d 517, 526 (9th Cir. 2015) (en banc), we held\nthat “the material support bar does not include an implied\nexception for individuals” who give support to a terrorist\norganization while “under duress.” Annachamy forecloses\nPetitioner’s argument that a “duress” exception to the\nmaterial support bar applies here.\n\n Because Petitioner’s duress argument is not colorable in\nview of our precedent, we lack jurisdiction to consider it.\nUnder 8 U.S.C. § 1158(b)(2)(D), we lack jurisdiction to\nconsider a petition for review of the BIA’s denial of asylum\nand withholding of removal pursuant to the material support\nbar. Under 8 U.S.C. § 1252(a)(2)(D), however, we retain\njurisdiction (despite the BIA’s applying the material support\nbar) only over “colorable constitutional claims or questions\nof law.” Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.\n2006) (per curiam). Accordingly, we dismiss the petition in\npart.\n\n B. De Minimis Support\n\n A noncitizen who has engaged in “terrorist activity”\ncannot obtain asylum or withholding of removal. See\n8 U.S.C. § 1182(a)(3)(B)(i)(I) (stating that an alien who\nhas engaged in “terrorist activity” is inadmissible);\nid. § 1158(b)(2)(A)(v) (stating that an alien described\nin § 1182(a)(3)(B)(i)(I) is ineligible for asylum); id.\n§ 1227(a)(4)(B) (stating that any alien described in\n§ 1182(a)(3)(B) is removable); id. § 1231(b)(3)(B)(iv)\n(stating that an alien described in § 1227(a)(4)(B) is ineligible\n\n8 RAYAMAJHI V. WHITAKER\n\nfor withholding of removal). As relevant here, “engage in\nterrorist activity” means “to commit an act that the actor\nknows, or reasonably should know, affords material support,\nincluding a safe house, transportation, communications,\nfunds, transfer of funds or other material financial benefit,\nfalse documentation or identification, weapons (including\nchemical, biological, or radiological weapons), explosives, or\ntraining,” to a terrorist organization or a member of a terrorist\norganization, unless the alien did not know (and should not\nreasonably have known) that the organization was a terrorist\norganization. Id. § 1182(a)(3)(B)(iv)(VI).\n\n In its decisions on Petitioner’s claims, the BIA held that\nno de minimis exception to the material support bar exists. In\na published opinion issued several years later, the BIA held\nthe same: “[A]n alien provides ‘material support’ to a\nterrorist organization, regardless of whether [the act] was\nintended to aid the organization, if the act has a logical and\nreasonably foreseeable tendency to promote, sustain, or\nmaintain the organization, even if only to a de minimis\ndegree.” In re A-C-M-, 27 I. & N. Dec. 303, 308 (B.I.A.\n2018) (emphasis added)); see also id. at 307 (“In sum,\n‘material support’ is a term of art” that refers to “aid of a\nmaterial and normally tangible nature, and it is not\nquantitative.” (footnote omitted)). Whether or not we afford\nChevron deference to the BIA’s interpretation, we agree that\nthe material support bar does not contain an exception for\npeople who give merely de minimis funds to a terrorist\norganization.\n\n If a statute is unambiguous, we end our analysis by\nenforcing its text. Chevron, 467 U.S. at 843. In relevant part,\n§ 1182(a)(3)(B)(iv)(VI) defines engaging in terrorist activity\nas giving something that “affords material support, including\n\n RAYAMAJHI V. WHITAKER 9\n\na safe house, transportation, communications, funds, transfer\nof funds or other material financial benefit, false\ndocumentation or identification, weapons (including\nchemical, biological, or radiological weapons), explosives, or\ntraining,” to a terrorist organization. (Emphases added.) The\nstatute provides a list of things that constitute “material\nsupport.” “Funds” fall under this category, and the statute\ndoes not establish any numerical threshold for money to\nqualify as material support. The inclusion in the list of the\nphrase “other material financial benefit” does not assist\nPetitioner. Grammatically, that phrase relates only to\n“transfer of funds” and suggests that “funds” are material per\nse, because a person affords material support by transferring\nfunds or some “other material financial benefit.” Under the\nplain text of § 1182(a)(3)(B)(iv)(VI), “funds” knowingly\ngiven to a terrorist organization are “material support,”2\nregardless of the amount given.\n\n If § 1182(a)(3)(B)(iv)(VI) is ambiguous as to whether it\ncontains an exception for de minimis funds, the BIA’s\ninterpretation merits Chevron deference even though it post-\ndates the BIA’s decision on Petitioner’s claims. Pauley v.\nU.S. Dep’t of Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (per\ncuriam); see also Smiley v. Citibank (S.D.), N.A., 517 U.S.\n735, 744 n.3 (1996) (“Where, however, a court is addressing\ntransactions that occurred at a time when there was no clear\nagency guidance, it would be absurd to ignore the agency’s\ncurrent authoritative pronouncement of what the statute\n\n\n 2\n As noted, an exception applies when the person affording support\ndid not know, and should not reasonably have known, that he was dealing\nwith a terrorist organization. § 1182(a)(3)(B)(iv)(VI). That exception\ndoes not apply here because Petitioner testified that he knew that the man\nto whom he gave money in 2009 was a Maoist.\n\n10 RAYAMAJHI V. WHITAKER\n\nmeans.”). The BIA’s determination that no de minimis\nexception exists “is based on a permissible construction of the\nstatute.” Chevron, 467 U.S. at 843. The BIA found “no\nlegislative history to support taking a quantitative approach”\nto defining “material support.” In re A-C-M-, 27 I. & N. Dec.\nat 307. Moreover, the BIA noted that it would not make\nsense for § 1182(a)(3)(B)(iv)(VI) itself to contain a de\nminimis exception because, in § 1182(d)(3)(B)(i), Congress\ngave the Secretary of Homeland Security the discretionary\nauthority to grant waivers to the material support bar “to\naddress excusable violations including, among other things,\nsupport provided under duress or to only a de minimis\ndegree.” Id. at 308. That grant of discretion would be\nmeaningless if the material support bar did not apply in the\nfirst place.\n\n We hold that the INA’s material support bar contains no\nimplied exception for de minimis aid in the form of funds.\nPetitioner admitted that, in 2009, he gave about $50 to\nsomeone whom he knew was a Maoist. Thus, substantial\nevidence supports the IJ’s finding, adopted by the BIA, that\nPetitioner gave material support to a terrorist organization,\nrendering him ineligible for asylum and withholding of\nremoval.\n\n DISMISSED in part and DENIED in part.\n\n RAYAMAJHI V. WHITAKER 11\n[END_CASE]", "role": "user" } ]
4,581,581		Leopoldo Mendoza v. Fonseca McElroy Grinding Co.	2019-01-15	17-15221	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO, * District Judge.", "parties": "", "opinions": [{"author": "The Honorable Elaine E. Bucklo, United States District Judge for", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LEOPOLDO PENA MENDOZA; No. 17-15221\n JOSE ARMANDO CORTES; ELVIZ\n SANCHEZ, D.C. No.\n Plaintiffs-Appellants, 3:15-cv-05143-WHO\n\n v.\n ORDER\n FONSECA MCELROY GRINDING CERTIFYING\n CO., INC.; GRANITE ROCK QUESTION TO THE\n COMPANY, CALIFORNIA\n Defendants-Appellees. SUPREME COURT\n\n\n\n Filed January 15, 2019\n\nBefore: RAYMOND C. FISHER and MILAN D. SMITH,\n JR., Circuit Judges, and ELAINE E. BUCKLO, * District\n Judge.\n\n Order\n\n\n\n\n \n The Honorable Elaine E. Bucklo, United States District Judge for\nthe Northern District of Illinois, sitting by designation.\n\f2 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n SUMMARY \n\n\n Labor Law\n\n The panel certified the following question to the\nCalifornia Supreme Court:\n\n Is operating engineers’ offsite “mobilization\n work”—including the transportation to and\n from a public works site of roadwork\n grinding equipment—performed “in the\n execution of [a] contract for public work,”\n Cal. Lab. Code § 1772, such that it entitles\n workers to “not less than the general\n prevailing rate of per diem wages for work of\n a similar character in the locality in which the\n public work is performed” pursuant to\n section 1771 of the California Labor Code?\n\n\n ORDER\n\n This appeal requires us to resolve whether offsite\nmobilization work conducted in connection with a public\nworks project is performed “in the execution of [a] contract\nfor public work” such that it entitles workers to prevailing\nwages pursuant to the California Labor Code. Cal. Lab.\nCode §§ 1771–72. Whether the scope of the prevailing wage\nlaw is expanded or limited, the answer to this question could\nhave a significant impact on California workers.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 3\n\n We find no controlling precedent in the decisions of the\nCalifornia Supreme Court or Courts of Appeal, see Cal. R.\nCt. 8.548(a)(2), and “considerations of comity and\nfederalism suggest that the court of last resort in California,\nrather than our court, should have the opportunity to answer\nthe question in the first instance.” Busker v. Wabtec Corp.,\n903 F.3d 881, 882 (9th Cir. 2018). We therefore respectfully\nask the Supreme Court of California to exercise its discretion\nto decide the certified question set forth in Part I of this order.\n\nI. Certified Question\n\n Pursuant to Rule 8.548 of the California Rules of Court,\nwe request that the California Supreme Court answer the\nfollowing question of state law:\n\n Is operating engineers’ offsite “mobilization\n work”—including the transportation to and\n from a public works site of roadwork\n grinding equipment—performed “in the\n execution of [a] contract for public work,”\n Cal. Lab. Code § 1772, such that it entitles\n workers to “not less than the general\n prevailing rate of per diem wages for work of\n a similar character in the locality in which the\n public work is performed” pursuant to\n section 1771 of the California Labor Code?\n\nThe Court may reformulate our question, and its exposition\nof the issues involved should not be limited by the question’s\nphrasing. Cal. R. Ct. 8.548(f)(5). We will accept and follow\nthe Court’s decision. Cal. R. Ct. 8.548(b)(2).\n\f4 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nII. Background\n\n Plaintiffs-Appellants Leopoldo Pena Mendoza, Elviz\nSanchez, and Jose Armando Cortes (Plaintiffs) are operating\nengineers and members of Operating Engineers Local No. 3.\nThey worked on grinding crews, using milling equipment to\nbreak up and crush asphalt roadbeds so that new roads could\nbe constructed. At times, their work duties included what\nthey referred to as “mobilization” work, which\n\n entailed loading milling machines, which\n w[ere] stored at [a] permanent yard or in\n offsite storage locations, onto a lowbed\n trailer; tying down or otherwise securing the\n heavy equipment onto the lowbed trailer;\n performing a light, brake, and fluid level\n check of a semi-truck used to transport the\n heavy equipment; driving a transport truck\n transporting the milling machine to a\n construction jobsite; and driving the transport\n truck transporting the milling machine back\n to [the] permanent yard.\n\nAs part of this mobilization process, Plaintiffs reported to a\ndesignated yard where the equipment was housed, and then\nperformed the maintenance and transportation work.\nNeither the permanent yard nor the offsite storage locations\ndepended on any public works project for their existence.\n\n Defendant-Appellee Fonseca McElroy Grinding Co. Inc.\n(FMG), a roadwork construction company, was acquired by\nDefendant-Appellee Granite Rock Company (Granite Rock,\nand together with FMG, Defendants) in 2014. FMG and\nGranite Rock were both signatory parties to the Operating\nEngineers Local No. 3 Master Agreement for Northern\nCalifornia (Master Agreement). In 2010, FMG entered into\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 5\n\nan additional Memorandum of Agreement (MOA) with\nLocal No. 3, which provided for a “Lowbed Transport” wage\nrate for mobilization work; this rate for offsite work was\nlower than the Master Agreement rates for onsite\nconstruction. Granite Rock was also a signatory to the\nMOA.\n\n Plaintiffs worked for FMG and then Granite Rock,\nincluding on public works construction projects, and\nreceived compensation based on the Master Agreement and\nMOA. Accordingly, although they received a prevailing\nwage for onsite construction on public works projects, they\nwere not paid a prevailing wage for offsite mobilization\nwork. Plaintiffs estimate that “[t]he ballpark difference\nbetween the two overtime rates in August [] 2012 was\n$67.72 (prevailing wage) and $23.89 (lowbed\ntransportation) for an underpayment of $38.38 in the base\npay.” Defendants note that “[t]he public works contracts\nunder which Plaintiffs worked did not specify the daily\nschedule for Granite Rock’s workers,” and “[t]hus Granite\nRock determined whether [they] would report directly to the\nconstruction jobsite or its yard” and “what tasks, if any,\n[they] would perform after completing their jobsite work.” 1\n\n On November 9, 2015, Mendoza brought claims under\nthe Fair Labor Standards Act and California labor laws for\nnonpayment of wages. Three months later, he, along with\nSanchez and Cortes, filed an amended complaint.\n\n The parties addressed the dispute that forms the basis of\nthis appeal through cross-motions for partial summary\njudgment, which the district court heard on October 26,\n\n 1\n The contracts for the specific work at issue in this case were not\nincluded in the record before us.\n\f6 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n2016. On November 28, 2016, the court entered an order in\nwhich it concluded that the offsite mobilization of equipment\nwas not “in the execution” of a public works contract.\nMendoza v. Fonseca McElroy Grinding Co., No. 15-cv-\n05143-WHO, 2016 WL 6947552, at 1 (N.D. Cal. Nov. 28,\n2016). Following this determination, the parties settled all\nremaining issues, except the dispute now before us.\n\n A timely appeal to this court followed, raising the\nquestion of California law posed in Part I.\n\nIII. Explanation of Request for Certification\n\n Under California law, “not less than the general\nprevailing rate of per diem wages for work of a similar\ncharacter in the locality in which the public work is\nperformed . . . shall be paid to all workers employed on\npublic works.” Cal. Lab. Code § 1771. This prevailing\nwage requirement applies to “[w]orkers employed by\ncontractors or subcontractors in the execution of any contract\nfor public work.” Id. § 1772 (emphasis added).\n\n The California Supreme Court has explained that\n\n [t]he overall purpose of the prevailing wage\n law . . . is to benefit and protect employees on\n public works projects. This general objective\n subsumes within it a number of specific\n goals: to protect employees from substandard\n wages that might be paid if contractors could\n recruit labor from distant cheap-labor areas;\n to permit union contractors to compete with\n nonunion contractors; to benefit the public\n through the superior efficiency of well-paid\n employees; and to compensate nonpublic\n employees with higher wages for the absence\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 7\n\n of job security and employment benefits\n enjoyed by public employees.\n\nLusardi Constr. Co. v. Aubry, 824 P.2d 643, 649 (Cal. 1992).\nIt has also emphasized that the prevailing wage law should\nbe construed liberally. City of Long Beach v. Dep’t of Indus.\nRelations, 102 P.3d 904, 908 (Cal. 2004).\n\n On appeal, we are asked to determine whether Plaintiffs\nwere employed “in the execution of” a public works contract\nwhen they performed offsite mobilization work, including\nmaintenance and transportation of equipment.\n\n A. Related Precedent\n\n We note, as did the district court, that California courts\nhave not previously addressed the applicability of the\nprevailing wage statute to offsite mobilization work\nperformed by workers employed on public works projects.\nSee Mendoza, 2016 WL 6947552, at 1. However, the\nanalytical framework developed in two California Court of\nAppeal decisions—Williams v. SnSands Corporation,\n67 Cal. Rptr. 3d 606 (Ct. App. 2007), and Sheet Metal\nWorkers’ International Association, Local 104 v. Duncan,\n176 Cal. Rptr. 3d 634, 650 (Ct. App. 2014)—might provide\nguidance.\n\n In Williams, the Court of Appeal addressed whether a\nmaterial subcontractor’s truck drivers who hauled materials\naway from a public works site were employed “in the\nexecution of” a public works contract or, like bona fide\nmaterial suppliers, were exempt from the prevailing wage\nrequirement. 67 Cal. Rptr. 3d at 610, 613–14. To resolve\nthis issue, the court explained that it needed to determine\n“the role the transport of the materials plays in the\n\f8 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nperformance or ‘execution’ of the public works contract.”\nId. at 613. It noted that\n\n [t]he familiar meaning of “execution” is “the\n action of carrying into effect (a plan, design,\n purpose, command, decree, task, etc.);\n accomplishment”; “the act of carrying out or\n putting into effect”; “the act of carrying out\n fully or putting completely into effect, doing\n what is provided or required.” Therefore, the\n use of “execution” in the phrase “in the\n execution of any contract for public work,”\n plainly means the carrying out and\n completion of all provisions of the contract.\n\nId. at 611 (citations omitted) (first quoting 5 Oxford English\nDictionary 521 (2d ed. 1989); then quoting Black’s Law\nDictionary 405 (8th ed. 2004); and then quoting Webster’s\n10th New Collegiate Dictionary 405 (2001)). Borrowing\nfrom a previous material supplier exemption case, O. G.\nSansone Co. v. Dep’t of Transp., 127 Cal. Rptr. 799 (Ct.\nApp. 1976), 2 the court distilled three factors to consider:\n(1) “whether the transport was required to carry out a term\nof the public works contract”; (2) “whether the work was\n\n 2\n In O. G. Sansone, the Court of Appeal considered whether two\ncompanies that performed hauling work on a public works contract were\nrequired to pay prevailing wages. 127 Cal. Rptr. at 801–02. The\ncompanies’ employees hauled materials to the public works site from\nlocations adjacent to the site that were created to serve the project, and\nthe materials they hauled were identified in the public works contract\nand had not been acquired from a “standard commercial supplier.” Id.\nat 803. The court held that because the truckers hauled materials from a\nproject-exclusive site under private agreements that were necessary to\nfulfill the terms of the contract, their employer was a subcontractor who\nneeded to pay the prevailing wage. Id. at 804.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 9\n\nperformed on the project site or another site integrally\nconnected to the project site”; and (3) “whether work that\nwas performed off the actual construction site was\nnevertheless necessary to accomplish or fulfill the contract.”\nWilliams, 67 Cal. Rptr. 3d at 613. Applying these factors,\nthe court concluded that the truckers’ off-hauling work was\n“unrelated” to the public works contracts and that the\ntruckers, who were not otherwise employed on the public\nworks project, fell within the material supplier exemption.\nId. at 614. “In the absence of evidence that, either by\ncontract or custom, the off-hauling . . . was ‘“an integrated\naspect of the ‘flow’ process of construction,”’” the Williams\ncourt determined that the prevailing wage statute did not\napply to the employees of a material supplier. Id. (quoting\nO. G. Sansone, 127 Cal. Rptr. at 804).\n\n In Sheet Metal Workers, the Court of Appeal reviewed\n“whether the prevailing wage law applies to an employee of\na subcontractor who fabricates materials for a public works\nproject at a permanent offsite manufacturing facility that is\nnot exclusively dedicated to the project.” 176 Cal. Rptr. 3d\nat 637. The court recognized that “the prevailing wage law\nis ambiguous concerning its geographic scope. There is no\nclear indication the Legislature rejected some geographical\nrestriction on its application, particularly in the face of\nstatutes that refer to the site of the work.” Id. at 650. The\ncourt distinguished a hauling case like Williams in light of\nthis geographic consideration, noting that “hauling activities\nnecessarily have at least a limited geographical connection\nto the public works site,” whereas “offsite fabrication could\ntheoretically take place anywhere in the world.” Id. at 646.\nIt further noted that the Department of Industrial Relations\n\f10 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n(DIR) 3 had previously determined that “fabrication work\nperformed at a permanent offsite facility not exclusively\ndedicated to the public works project is not covered by the\nprevailing wage law, whereas fabrication work performed at\na temporary facility that is dedicated to the project is\ncovered.” Id. at 648. The DIR had explained that “extending\ncoverage to offsite fabrication would not significantly\nprotect local labor markets, because fabrication does not\nnecessarily take place in the local labor market.” Id. at 647.\nApplying the analysis from O. G. Sansone, the DIR\nconcluded that “the sheet metal supplier was exempt from\nthe prevailing wage requirements as a material supplier\nbecause it was a standard supplier of sheet metal products to\nthe general public, its facility existed long before the public\nworks contract, and the facility was not located on or near\nthe site of the public work.” Id. After considering these\nfactors and the DIR’s determination, the Sheet Metal\nWorkers court similarly concluded that “[w]ork performed\nat a permanent, offsite, nonexclusive manufacturing facility\ndoes not constitute an integral part of the process of\nconstruction at the site of the public work.” Id. at 650.\n\n\n\n\n 3\n The DIR is charged with “determin[ing] the general prevailing\nrate” based on “the applicable wage rates established by collective\nbargaining agreements and the rates that may have been predetermined\nfor federal public works, within the locality and in the nearest labor\nmarket area,” and other factors. Cal. Lab. Code §§ 1770, 1773; see also\nState Bldg. & Constr. Trades Council of Cal. v. Duncan, 76 Cal. Rptr.\n3d 507, 511–12 (Ct. App. 2008) (reviewing the DIR’s role in wage\ndeterminations). Upon request, it also makes “determination[s] of\nwhether a specific project or type of work awarded or undertaken by a\npolitical subdivision is a public work.” Cal. Lab. Code § 1773.5(b).\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 11\n\n B. Application to Plaintiffs’ Offsite Mobilization\n Work\n\n The outcome of this appeal might depend on whether\nWilliams and Sheet Metal Workers properly apply in this\ncontext. Although neither case is directly on point, both\nmight be sufficiently analogous to our case such that similar\nreasoning should be brought to bear.\n\n Plaintiffs’ offsite mobilization efforts are at least\npartially comparable to the hauling work in Williams and the\nfabrication work in Sheet Metal Workers. As with the\nlatter’s fabrication shop, the offsite yards where Plaintiffs\nundertook their mobilization work “do not depend on any\nparticular public works project for their existence.” Their\nwork is therefore distinguishable from, for example, the\nhauling of materials from sites “located adjacent to and\nestablished exclusively to serve the [public works] project\nsite.” O. G. Sansone, 127 Cal. Rptr. at 801. The second\nWilliams factor would thus militate against applying the\nprevailing wage law, as Plaintiffs’ mobilization work was\nnot “performed on [a public works] project site or another\nsite integrally connected to the project site.” 67 Cal. Rptr.\n3d at 613.\n\n As to the first Williams factor—“whether the transport\nwas required to carry out a term of the public works\ncontract,” id. at 613—the record does not provide any such\nterms from the contract, and, as the district court noted, there\nis “no evidence of the custom or practice of the industry\nregarding transportation of heavy equipment to public works\nproject sites.” Mendoza, 2016 WL 6947552, at 7. Had\nPlaintiffs supplied evidence that the offsite mobilization\nwork was “an integrated aspect of the ‘flow’ process of\nconstruction,” Williams, 67 Cal. Rptr. 3d at 612, then this\ncase might be more easily resolved. However, no such\n\f12 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nevidence is presented, either from the terms of the public\nworks contract or with regards to industry custom. The\ncontract itself is not included in the record, and although\nPlaintiffs requested judicial notice of a variety of materials—\nmostly DIR wage determinations for other types of work—\nnone of these documents relates to the offsite mobilization\nof grinding equipment, let alone provides evidence that these\ntools, or the work to prepare them, were essential\ncomponents of the public works project. 4\n\n Finally, as to the third Williams factor—“whether work\nthat was performed off the actual construction site was\nnevertheless necessary to accomplish or fulfill the contract,”\nid. at 613—the district court observed that California courts\nhave considered transportation to be integral to public work\nin the context of materials, rather than tools. Mendoza, 2016\nWL 6947552, at 7. 5 The court determined that a milling\n\n 4\n Rather than rely on such evidence, Plaintiffs instead argue that it\nis self-evident that the milling machines were integral to the public works\nproject because “one can safely say that without the [milling machine]\non site, the job of grinding up the roadbed could not be performed and\nthe contract executed.”\n 5\n Drawing a bright line between materials and tools in this way is\nplausible, but not obvious. On the one hand, because materials are\nintegrated into a jobsite and are not reusable, they are exclusively\ndevoted to a public works project in a way that tools are not. This\n“exclusivity” is an ongoing theme in the relevant case law, as\ndemonstrated, for example, by the focus on whether an offsite facility\nwas created for a public works project, or whether a materialman also\nsold supplies to the general public. See, e.g., O. G. Sansone, 127 Cal.\nRptr. at 803–04. Tools do not have this inherent characteristic of\nexclusivity: the reason for a tool to come and go from a jobsite may be\nfor its protection or alternative use, which serves the contractor’s\ninterest, not the interest of the public works project. On the other hand,\nthe milling machines that Plaintiffs transported constituted a highly\nsignificant component of the public works project on which they were\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 13\n\nmachine is “more akin to a tool, not a building material,” and\non that basis distinguished Plaintiffs’ mobilization efforts\nfrom other work that involved “a building material, like\naggregate subbase or asphalt,” and therefore satisfied the\nthird Williams factor. Id. 6 The court also expressed concern\nabout a potential slippery slope, pondering whether\nPlaintiffs’ “argument could be used to justify application of\nthe prevailing wage law to the transportation of many things\nneeded for a public works construction job, such as ‘tools,\nportable toilets, generators, potable water, lumber, asphalt,\n[and] steel,’” and noting that “[t]he California Court of\nAppeal has cautioned against an interpretation under which\n‘nearly any activity related to the completion or fulfillment\nof a public works contract would be subject to the prevailing\nwage law, regardless of where it takes place or whether it\nplays a substantial role in the process of construction.’” Id.\nat 8 (quoting Sheet Metal Workers, 176 Cal. Rptr. 3d at\n642).\n\n In short, application of the three Williams factors\nsuggests—albeit not conclusively—that Plaintiffs did not\n\nemployed. The heavy equipment was specifically tailored to perform the\ntype of work required by the project, and unlike other construction tools,\nwas not widely usable in other contexts. In this sense, the milling\nmachines might have been “necessary to accomplish or fulfill the\ncontract” to an even greater degree than common construction tools like\nportable toilets or generators, or generic materials like asphalt. Williams,\n67 Cal. Rptr. 3d at 613.\n\n 6\n The court cited O. G. Sansone’s discussion of Green v. Jones,\n128 N.W.2d 1 (Wis. 1964), in which the Wisconsin Supreme Court\ndetermined that haulers were covered by the prevailing wage law when\nthey hauled materials that “were dumped or spread directly on the\nroadbed and were immediately used in the construction of the project.”\nO. G. Sansone, 127 Cal. Rptr. at 804 (citing Green, 128 N.W.2d at 7).\n\f14 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nperform the offsite mobilization work in the execution of a\npublic works contract such that the prevailing wage law\napplied. 7\n\n However, other considerations suggest a contrary\nconclusion. To begin, the distinctions between Williams and\nSheet Metal Workers and this case are significant. Unlike\nthe workers in those cases, Plaintiffs performed work on the\npublic works site that indisputably qualified for the\nprevailing wage, leaving us to determine whether work they\nperformed offsite in connection with those efforts should be\nsimilarly compensated. Whether wage rates for workers\nemployed on a public works project should vary based on\nthe task performed is a different inquiry from whether a class\n\n 7\n Additionally, although not controlling, the federal Davis-Bacon\nAct provides support for this result. “California courts have turned to\nthe Davis-Bacon Act for guidance on issues not clearly answered by\nCalifornia authority.” Sheet Metal Workers, 176 Cal. Rptr. 3d at 649–50\n(“[U]nless the Davis-Bacon Act is fundamentally inconsistent with the\nportions of the prevailing wage law that one seeks to interpret, the\napproach taken under the Davis-Bacon Act may provide useful\nguidance.”). The Davis-Bacon Act “plainly imposes a geographical\nlimitation on the application of the federal prevailing wage law,” id. at\n642, as it applies to “mechanics and laborers employed directly on the\nsite of the work.” 40 U.S.C. § 3142(c)(1). The “site of work” does not\ninclude “permanent home offices, branch plant establishments,\nfabrication plants, tool yards, etc., of a contractor or subcontractor whose\nlocation and continuance in operation are determined wholly without\nregard to a particular Federal or federally assisted contract or project.”\n29 C.F.R. § 5.2(l)(3). The same regulation also specifies that “the\ntransportation of materials or supplies to or from the site of the work by\nemployees of the construction contractor or a construction subcontractor\nis not ‘construction, prosecution, completion, or repair.’” Id. § 5.2(j)(2).\nAccordingly, although the Davis-Bacon Act is not dispositive,\ninterpreting Plaintiffs’ offsite mobilization work as outside “the\nexecution of” a public works contract is consistent with the Act’s\nguidance.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 15\n\nof employees is sufficiently involved in a public works\nproject to be considered employed in the execution of a\npublic works contract, and Williams and Sheet Metal\nWorkers only addressed the latter issue. Furthermore, the\nCourt of Appeal’s geographic concern in Sheet Metal\nWorkers—specifically, that the manufacturing work at issue\nthere could conceivably have been undertaken anywhere,\nand thus did not necessarily implicate the policy concern\nunderlying the prevailing wage law—is not present here.\nPlaintiffs’ mobilization and transportation work was\ngeographically confined to areas in reasonable proximity to\nthe public works site. Lastly, whereas Williams involved a\nworker with “the status of a bona fide materials supplier,”\n67 Cal. Rptr. 3d at 613–14, Plaintiffs directly worked for a\npublic works contractor, not a materials supplier. These\nnotable distinctions suggest that Williams and Sheet Metal\nWorkers might be of limited use in answering the question\nthat forms the basis of this appeal.\n\n Additionally, Plaintiffs rely on the DIR’s interpretations\nof its Public Works Manual and prevailing wage\ndeterminations, which, they contend, “show that\nmobilization is part and parcel of a contractor’s prevailing\nwage obligations.” They acknowledge that “a published\ndetermination is not a legal opinion or a position\nstatement”—a position echoed by the Public Works Manual,\nwhich asserts that it “is not intended as a comprehensive\nsummary of existing law or duly promulgated regulations”\nand “should not be relied upon” to “establish rules of general\napplication.” However, “[a]lthough the [DIR] has\ndetermined that its coverage determinations do not have\nprecedential value, the determinations nonetheless constitute\nadministrative interpretations entitled to considerable\ndeference.” Sheet Metal Workers, 176 Cal. Rptr. 3d at 647.\n\f16 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n The relevant provision of the Public Works Manual reads\nas follows:\n\n Travel time related to a public works project\n constitutes “hours worked” on the project,\n which is payable at not less than the\n prevailing rate based on the worker’s\n classification, unless the Director’s wage\n determination for that classification\n specifically includes a lesser travel time rate.\n (See Director’s Decision in In the Matter of\n Kern Asphalt Paving & Sealing Co., Inc.\n (March 28, 2008), Case No. 04-0117-PWH.\n (See also Morillion v. Royal Packing Co.\n (2000) 22 Cal.4th 575).) Travel time required\n by an employer after a worker reports to the\n first place at which his or her presence is\n required by the employer is compensable\n travel time, and includes travel to a public\n work site, whether from the contractor’s\n yard, shop, another public work site, or a\n private job site. All such compensable travel\n time must be paid at the same prevailing\n wage rate required for the work actually\n performed by the worker at the public works\n site. No additional facts, such as whether\n tools or supplies are being delivered by the\n worker to the site, need be present.\n\nGiven that DIR decisions, while not binding, are at the very\nleast revealing, this provision seems to favor Plaintiffs’\nposition. This is particularly true because the provision was\nundergirded by the DIR’s decision in In re Kern Asphalt\nPaving & Sealing Co., No. 04-0117-PWH, in which it\nconcluded that travel time was compensable at the prevailing\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 17\n\nwage for employees’ work on a public jobsite. With regard\nto the prevailing wage, the DIR wrote:\n\n The relevant prevailing wage determinations\n contain no special rate for travel time. In the\n absence of any evidence to the contrary, the\n required travel time must be regarded as\n incidental to the workers’ regular duties and\n payable at the same prevailing rates that\n apply to the classification associated with\n those duties. [The employer] has presented\n no argument or evidence supporting a\n different rate outside of its contention that it\n was not obligated to pay for the travel time at\n all.\n\n(footnote omitted). Although this determination supports\nPlaintiffs’ position, DIR determinations must be designated\nas precedential in order “to be relied upon in subsequent\ndeterminations,” State Bldg. & Constr. Trades Council of\nCal. v. Duncan, 76 Cal. Rptr. 3d 507, 515 (Ct. App. 2008)\n(citing Cal. Gov’t Code § 11425.60), and Kern Asphalt was\nnot so designated. See Director’s Prevailing Wage\nEnforcement Decisions (Labor Code section 1742) (2007 to\npresent), Dep’t of Indus. Relations, http://www.dir.ca.gov/o\nprl/PrevWageEncDecision.htm (last visited Jan. 7, 2019)\n(listing Kern Asphalt among decisions that “have not been\ndesignated precedential and, therefore, . . . cannot be relied\non as authority in future cases”). Nevertheless, the reasoning\nand conclusion of Kern Asphalt are instructive, if not\nbinding, even though the courts bear the ultimate\nresponsibility for interpreting the statutory language of the\nprevailing wage law. See City of Long Beach, 102 P.3d at\n910 (“When an administrative agency construes a statute in\nadopting a regulation or formulating a policy, the court will\n\f18 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nrespect the agency interpretation as one of several\ninterpretive tools that may be helpful. In the end, however,\n‘[the court] must . . . independently judge the text of the\nstatute.’” (alterations in original) (quoting Agnew v. State\nBd. of Equalization, 981 P.2d 52, 60 (Cal. 1999))).\n\n C. Summation\n\n Ultimately, no California court has addressed whether\noffsite mobilization work, performed by workers who are\notherwise employed on a public works project, entitles the\nworkers to prevailing wages for those efforts. We note that\nthe various possible outcomes to this question could yield\nwide-ranging results. For example, a broader application of\nKern Asphalt might result in an extension of prevailing\nwages to a range of public works-adjacent activities,\nincluding mobilization and travel. Alternatively,\nendorsement of the district court’s analysis might limit\nprevailing wages only to work that satisfies the factors set\nforth by the Court of Appeal in Williams, and thus limit\nwages for workers employed on public works projects when\nthey perform offsite tasks, even when that work is closely\nrelated to their onsite employment. Resolution of this issue\nmight also implicate, as the district court noted, workers who\nhaul other equipment to public works sites, from generators\nand scaffolding to water and portable toilets.\n\n Given the potential scope of this decision, its impact on\nCalifornia workers, and the absence of guiding precedent,\nwe conclude that certification to the California Supreme\nCourt of the question presented in Part I is appropriate.\n\nIV. Administrative Information\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 19\n\n The title of this case is: LEOPOLDO PENA\nMENDOZA, JOSE ARMANDO CORTES, and ELVIZ\nSANCHEZ, Plaintiffs-Appellants v. FONSECA\nMCELROY GRINDING CO., INC and GRANITE ROCK\nCOMPANY, Defendants-Appellees.\n\n The case number in our court is 17-15221.\n\n Plaintiffs-Appellants Leopoldo Pena Mendoza, Jose\nArmando Cortes, and Elviz Sanchez are represented by the\nfollowing counsel:\n\n Tomas E. Margain and Huy Ngoc Tran\n Justice at Work Law Group\n 84 West Santa Clara Street, Suite 790\n San Jose, California 95113\n\n Defendants-Appellees Fonseca McElroy Grinding Co.,\nInc. and Granite Rock Company are represented by the\nfollowing counsel:\n\n Paul V. Simpson\n Simpson, Garrity, Innes & Jacuzzi, PC\n 601 Gateway Boulevard, Suite 950\n South San Francisco, California 94080\n\n We designate Leopoldo Pena Mendoza, Jose Armando\nCortes, and Elviz Sanchez as the petitioners if our request\nfor a decision is granted, as they are the appellants before our\ncourt.\n\n The clerk of this court shall submit to the California\nSupreme Court, under seal of the United States Court of\nAppeals for the Ninth Circuit, copies of all relevant briefs\nand excerpts of record, as well as an original and ten copies\n\f20 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nof this order, with a certificate of service on the parties. Cal.\nR. Ct. 8.548(c)–(d).\n\n This case is withdrawn from submission. Further\nproceedings before us are stayed pending the California\nSupreme Court’s decision. The parties shall notify the clerk\nof this court within seven days after the California Supreme\nCourt accepts or declines this request, and again within\nseven days if the California Supreme Court issues a decision.\nThe panel retains jurisdiction over further proceedings. The\nclerk is directed to administratively close this docket,\npending further order.\n\n IT IS SO ORDERED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358834/", "author_raw": "The Honorable Elaine E. Bucklo, United States District Judge for"}]}	RAYMOND C FISHER	MILAN D SMITH JR	ELAINE E BUCKLO	1		{"RAYMOND C FISHER": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "ELAINE E BUCKLO": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581581/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Leopoldo Mendoza v. Fonseca McElroy Grinding Co.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LEOPOLDO PENA MENDOZA; No. 17-15221\n JOSE ARMANDO CORTES; ELVIZ\n SANCHEZ, D.C. No.\n Plaintiffs-Appellants, 3:15-cv-05143-WHO\n\n v.\n ORDER\n FONSECA MCELROY GRINDING CERTIFYING\n CO., INC.; GRANITE ROCK QUESTION TO THE\n COMPANY, CALIFORNIA\n Defendants-Appellees. SUPREME COURT\n\n\n\n Filed January 15, 2019\n\nBefore: RAYMOND C. FISHER and MILAN D. SMITH,\n JR., Circuit Judges, and ELAINE E. BUCKLO, * District\n Judge.\n\n Order\n\n\n\n\n \n The Honorable Elaine E. Bucklo, United States District Judge for\nthe Northern District of Illinois, sitting by designation.\n\f2 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n SUMMARY \n\n\n Labor Law\n\n The panel certified the following question to the\nCalifornia Supreme Court:\n\n Is operating engineers’ offsite “mobilization\n work”—including the transportation to and\n from a public works site of roadwork\n grinding equipment—performed “in the\n execution of [a] contract for public work,”\n Cal. Lab. Code § 1772, such that it entitles\n workers to “not less than the general\n prevailing rate of per diem wages for work of\n a similar character in the locality in which the\n public work is performed” pursuant to\n section 1771 of the California Labor Code?\n\n\n ORDER\n\n This appeal requires us to resolve whether offsite\nmobilization work conducted in connection with a public\nworks project is performed “in the execution of [a] contract\nfor public work” such that it entitles workers to prevailing\nwages pursuant to the California Labor Code. Cal. Lab.\nCode §§ 1771–72. Whether the scope of the prevailing wage\nlaw is expanded or limited, the answer to this question could\nhave a significant impact on California workers.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 3\n\n We find no controlling precedent in the decisions of the\nCalifornia Supreme Court or Courts of Appeal, see Cal. R.\nCt. 8.548(a)(2), and “considerations of comity and\nfederalism suggest that the court of last resort in California,\nrather than our court, should have the opportunity to answer\nthe question in the first instance.” Busker v. Wabtec Corp.,\n903 F.3d 881, 882 (9th Cir. 2018). We therefore respectfully\nask the Supreme Court of California to exercise its discretion\nto decide the certified question set forth in Part I of this order.\n\nI. Certified Question\n\n Pursuant to Rule 8.548 of the California Rules of Court,\nwe request that the California Supreme Court answer the\nfollowing question of state law:\n\n Is operating engineers’ offsite “mobilization\n work”—including the transportation to and\n from a public works site of roadwork\n grinding equipment—performed “in the\n execution of [a] contract for public work,”\n Cal. Lab. Code § 1772, such that it entitles\n workers to “not less than the general\n prevailing rate of per diem wages for work of\n a similar character in the locality in which the\n public work is performed” pursuant to\n section 1771 of the California Labor Code?\n\nThe Court may reformulate our question, and its exposition\nof the issues involved should not be limited by the question’s\nphrasing. Cal. R. Ct. 8.548(f)(5). We will accept and follow\nthe Court’s decision. Cal. R. Ct. 8.548(b)(2).\n\f4 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nII. Background\n\n Plaintiffs-Appellants Leopoldo Pena Mendoza, Elviz\nSanchez, and Jose Armando Cortes (Plaintiffs) are operating\nengineers and members of Operating Engineers Local No. 3.\nThey worked on grinding crews, using milling equipment to\nbreak up and crush asphalt roadbeds so that new roads could\nbe constructed. At times, their work duties included what\nthey referred to as “mobilization” work, which\n\n entailed loading milling machines, which\n w[ere] stored at [a] permanent yard or in\n offsite storage locations, onto a lowbed\n trailer; tying down or otherwise securing the\n heavy equipment onto the lowbed trailer;\n performing a light, brake, and fluid level\n check of a semi-truck used to transport the\n heavy equipment; driving a transport truck\n transporting the milling machine to a\n construction jobsite; and driving the transport\n truck transporting the milling machine back\n to [the] permanent yard.\n\nAs part of this mobilization process, Plaintiffs reported to a\ndesignated yard where the equipment was housed, and then\nperformed the maintenance and transportation work.\nNeither the permanent yard nor the offsite storage locations\ndepended on any public works project for their existence.\n\n Defendant-Appellee Fonseca McElroy Grinding Co. Inc.\n(FMG), a roadwork construction company, was acquired by\nDefendant-Appellee Granite Rock Company (Granite Rock,\nand together with FMG, Defendants) in 2014. FMG and\nGranite Rock were both signatory parties to the Operating\nEngineers Local No. 3 Master Agreement for Northern\nCalifornia (Master Agreement). In 2010, FMG entered into\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 5\n\nan additional Memorandum of Agreement (MOA) with\nLocal No. 3, which provided for a “Lowbed Transport” wage\nrate for mobilization work; this rate for offsite work was\nlower than the Master Agreement rates for onsite\nconstruction. Granite Rock was also a signatory to the\nMOA.\n\n Plaintiffs worked for FMG and then Granite Rock,\nincluding on public works construction projects, and\nreceived compensation based on the Master Agreement and\nMOA. Accordingly, although they received a prevailing\nwage for onsite construction on public works projects, they\nwere not paid a prevailing wage for offsite mobilization\nwork. Plaintiffs estimate that “[t]he ballpark difference\nbetween the two overtime rates in August [] 2012 was\n$67.72 (prevailing wage) and $23.89 (lowbed\ntransportation) for an underpayment of $38.38 in the base\npay.” Defendants note that “[t]he public works contracts\nunder which Plaintiffs worked did not specify the daily\nschedule for Granite Rock’s workers,” and “[t]hus Granite\nRock determined whether [they] would report directly to the\nconstruction jobsite or its yard” and “what tasks, if any,\n[they] would perform after completing their jobsite work.” 1\n\n On November 9, 2015, Mendoza brought claims under\nthe Fair Labor Standards Act and California labor laws for\nnonpayment of wages. Three months later, he, along with\nSanchez and Cortes, filed an amended complaint.\n\n The parties addressed the dispute that forms the basis of\nthis appeal through cross-motions for partial summary\njudgment, which the district court heard on October 26,\n\n 1\n The contracts for the specific work at issue in this case were not\nincluded in the record before us.\n\f6 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n2016. On November 28, 2016, the court entered an order in\nwhich it concluded that the offsite mobilization of equipment\nwas not “in the execution” of a public works contract.\nMendoza v. Fonseca McElroy Grinding Co., No. 15-cv-\n05143-WHO, 2016 WL 6947552, at 1 (N.D. Cal. Nov. 28,\n2016). Following this determination, the parties settled all\nremaining issues, except the dispute now before us.\n\n A timely appeal to this court followed, raising the\nquestion of California law posed in Part I.\n\nIII. Explanation of Request for Certification\n\n Under California law, “not less than the general\nprevailing rate of per diem wages for work of a similar\ncharacter in the locality in which the public work is\nperformed . . . shall be paid to all workers employed on\npublic works.” Cal. Lab. Code § 1771. This prevailing\nwage requirement applies to “[w]orkers employed by\ncontractors or subcontractors in the execution of any contract\nfor public work.” Id. § 1772 (emphasis added).\n\n The California Supreme Court has explained that\n\n [t]he overall purpose of the prevailing wage\n law . . . is to benefit and protect employees on\n public works projects. This general objective\n subsumes within it a number of specific\n goals: to protect employees from substandard\n wages that might be paid if contractors could\n recruit labor from distant cheap-labor areas;\n to permit union contractors to compete with\n nonunion contractors; to benefit the public\n through the superior efficiency of well-paid\n employees; and to compensate nonpublic\n employees with higher wages for the absence\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 7\n\n of job security and employment benefits\n enjoyed by public employees.\n\nLusardi Constr. Co. v. Aubry, 824 P.2d 643, 649 (Cal. 1992).\nIt has also emphasized that the prevailing wage law should\nbe construed liberally. City of Long Beach v. Dep’t of Indus.\nRelations, 102 P.3d 904, 908 (Cal. 2004).\n\n On appeal, we are asked to determine whether Plaintiffs\nwere employed “in the execution of” a public works contract\nwhen they performed offsite mobilization work, including\nmaintenance and transportation of equipment.\n\n A. Related Precedent\n\n We note, as did the district court, that California courts\nhave not previously addressed the applicability of the\nprevailing wage statute to offsite mobilization work\nperformed by workers employed on public works projects.\nSee Mendoza, 2016 WL 6947552, at 1. However, the\nanalytical framework developed in two California Court of\nAppeal decisions—Williams v. SnSands Corporation,\n67 Cal. Rptr. 3d 606 (Ct. App. 2007), and Sheet Metal\nWorkers’ International Association, Local 104 v. Duncan,\n176 Cal. Rptr. 3d 634, 650 (Ct. App. 2014)—might provide\nguidance.\n\n In Williams, the Court of Appeal addressed whether a\nmaterial subcontractor’s truck drivers who hauled materials\naway from a public works site were employed “in the\nexecution of” a public works contract or, like bona fide\nmaterial suppliers, were exempt from the prevailing wage\nrequirement. 67 Cal. Rptr. 3d at 610, 613–14. To resolve\nthis issue, the court explained that it needed to determine\n“the role the transport of the materials plays in the\n\f8 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nperformance or ‘execution’ of the public works contract.”\nId. at 613. It noted that\n\n [t]he familiar meaning of “execution” is “the\n action of carrying into effect (a plan, design,\n purpose, command, decree, task, etc.);\n accomplishment”; “the act of carrying out or\n putting into effect”; “the act of carrying out\n fully or putting completely into effect, doing\n what is provided or required.” Therefore, the\n use of “execution” in the phrase “in the\n execution of any contract for public work,”\n plainly means the carrying out and\n completion of all provisions of the contract.\n\nId. at 611 (citations omitted) (first quoting 5 Oxford English\nDictionary 521 (2d ed. 1989); then quoting Black’s Law\nDictionary 405 (8th ed. 2004); and then quoting Webster’s\n10th New Collegiate Dictionary 405 (2001)). Borrowing\nfrom a previous material supplier exemption case, O. G.\nSansone Co. v. Dep’t of Transp., 127 Cal. Rptr. 799 (Ct.\nApp. 1976), 2 the court distilled three factors to consider:\n(1) “whether the transport was required to carry out a term\nof the public works contract”; (2) “whether the work was\n\n 2\n In O. G. Sansone, the Court of Appeal considered whether two\ncompanies that performed hauling work on a public works contract were\nrequired to pay prevailing wages. 127 Cal. Rptr. at 801–02. The\ncompanies’ employees hauled materials to the public works site from\nlocations adjacent to the site that were created to serve the project, and\nthe materials they hauled were identified in the public works contract\nand had not been acquired from a “standard commercial supplier.” Id.\nat 803. The court held that because the truckers hauled materials from a\nproject-exclusive site under private agreements that were necessary to\nfulfill the terms of the contract, their employer was a subcontractor who\nneeded to pay the prevailing wage. Id. at 804.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 9\n\nperformed on the project site or another site integrally\nconnected to the project site”; and (3) “whether work that\nwas performed off the actual construction site was\nnevertheless necessary to accomplish or fulfill the contract.”\nWilliams, 67 Cal. Rptr. 3d at 613. Applying these factors,\nthe court concluded that the truckers’ off-hauling work was\n“unrelated” to the public works contracts and that the\ntruckers, who were not otherwise employed on the public\nworks project, fell within the material supplier exemption.\nId. at 614. “In the absence of evidence that, either by\ncontract or custom, the off-hauling . . . was ‘“an integrated\naspect of the ‘flow’ process of construction,”’” the Williams\ncourt determined that the prevailing wage statute did not\napply to the employees of a material supplier. Id. (quoting\nO. G. Sansone, 127 Cal. Rptr. at 804).\n\n In Sheet Metal Workers, the Court of Appeal reviewed\n“whether the prevailing wage law applies to an employee of\na subcontractor who fabricates materials for a public works\nproject at a permanent offsite manufacturing facility that is\nnot exclusively dedicated to the project.” 176 Cal. Rptr. 3d\nat 637. The court recognized that “the prevailing wage law\nis ambiguous concerning its geographic scope. There is no\nclear indication the Legislature rejected some geographical\nrestriction on its application, particularly in the face of\nstatutes that refer to the site of the work.” Id. at 650. The\ncourt distinguished a hauling case like Williams in light of\nthis geographic consideration, noting that “hauling activities\nnecessarily have at least a limited geographical connection\nto the public works site,” whereas “offsite fabrication could\ntheoretically take place anywhere in the world.” Id. at 646.\nIt further noted that the Department of Industrial Relations\n\f10 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n(DIR) 3 had previously determined that “fabrication work\nperformed at a permanent offsite facility not exclusively\ndedicated to the public works project is not covered by the\nprevailing wage law, whereas fabrication work performed at\na temporary facility that is dedicated to the project is\ncovered.” Id. at 648. The DIR had explained that “extending\ncoverage to offsite fabrication would not significantly\nprotect local labor markets, because fabrication does not\nnecessarily take place in the local labor market.” Id. at 647.\nApplying the analysis from O. G. Sansone, the DIR\nconcluded that “the sheet metal supplier was exempt from\nthe prevailing wage requirements as a material supplier\nbecause it was a standard supplier of sheet metal products to\nthe general public, its facility existed long before the public\nworks contract, and the facility was not located on or near\nthe site of the public work.” Id. After considering these\nfactors and the DIR’s determination, the Sheet Metal\nWorkers court similarly concluded that “[w]ork performed\nat a permanent, offsite, nonexclusive manufacturing facility\ndoes not constitute an integral part of the process of\nconstruction at the site of the public work.” Id. at 650.\n\n\n\n\n 3\n The DIR is charged with “determin[ing] the general prevailing\nrate” based on “the applicable wage rates established by collective\nbargaining agreements and the rates that may have been predetermined\nfor federal public works, within the locality and in the nearest labor\nmarket area,” and other factors. Cal. Lab. Code §§ 1770, 1773; see also\nState Bldg. & Constr. Trades Council of Cal. v. Duncan, 76 Cal. Rptr.\n3d 507, 511–12 (Ct. App. 2008) (reviewing the DIR’s role in wage\ndeterminations). Upon request, it also makes “determination[s] of\nwhether a specific project or type of work awarded or undertaken by a\npolitical subdivision is a public work.” Cal. Lab. Code § 1773.5(b).\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 11\n\n B. Application to Plaintiffs’ Offsite Mobilization\n Work\n\n The outcome of this appeal might depend on whether\nWilliams and Sheet Metal Workers properly apply in this\ncontext. Although neither case is directly on point, both\nmight be sufficiently analogous to our case such that similar\nreasoning should be brought to bear.\n\n Plaintiffs’ offsite mobilization efforts are at least\npartially comparable to the hauling work in Williams and the\nfabrication work in Sheet Metal Workers. As with the\nlatter’s fabrication shop, the offsite yards where Plaintiffs\nundertook their mobilization work “do not depend on any\nparticular public works project for their existence.” Their\nwork is therefore distinguishable from, for example, the\nhauling of materials from sites “located adjacent to and\nestablished exclusively to serve the [public works] project\nsite.” O. G. Sansone, 127 Cal. Rptr. at 801. The second\nWilliams factor would thus militate against applying the\nprevailing wage law, as Plaintiffs’ mobilization work was\nnot “performed on [a public works] project site or another\nsite integrally connected to the project site.” 67 Cal. Rptr.\n3d at 613.\n\n As to the first Williams factor—“whether the transport\nwas required to carry out a term of the public works\ncontract,” id. at 613—the record does not provide any such\nterms from the contract, and, as the district court noted, there\nis “no evidence of the custom or practice of the industry\nregarding transportation of heavy equipment to public works\nproject sites.” Mendoza, 2016 WL 6947552, at 7. Had\nPlaintiffs supplied evidence that the offsite mobilization\nwork was “an integrated aspect of the ‘flow’ process of\nconstruction,” Williams, 67 Cal. Rptr. 3d at 612, then this\ncase might be more easily resolved. However, no such\n\f12 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nevidence is presented, either from the terms of the public\nworks contract or with regards to industry custom. The\ncontract itself is not included in the record, and although\nPlaintiffs requested judicial notice of a variety of materials—\nmostly DIR wage determinations for other types of work—\nnone of these documents relates to the offsite mobilization\nof grinding equipment, let alone provides evidence that these\ntools, or the work to prepare them, were essential\ncomponents of the public works project. 4\n\n Finally, as to the third Williams factor—“whether work\nthat was performed off the actual construction site was\nnevertheless necessary to accomplish or fulfill the contract,”\nid. at 613—the district court observed that California courts\nhave considered transportation to be integral to public work\nin the context of materials, rather than tools. Mendoza, 2016\nWL 6947552, at 7. 5 The court determined that a milling\n\n 4\n Rather than rely on such evidence, Plaintiffs instead argue that it\nis self-evident that the milling machines were integral to the public works\nproject because “one can safely say that without the [milling machine]\non site, the job of grinding up the roadbed could not be performed and\nthe contract executed.”\n 5\n Drawing a bright line between materials and tools in this way is\nplausible, but not obvious. On the one hand, because materials are\nintegrated into a jobsite and are not reusable, they are exclusively\ndevoted to a public works project in a way that tools are not. This\n“exclusivity” is an ongoing theme in the relevant case law, as\ndemonstrated, for example, by the focus on whether an offsite facility\nwas created for a public works project, or whether a materialman also\nsold supplies to the general public. See, e.g., O. G. Sansone, 127 Cal.\nRptr. at 803–04. Tools do not have this inherent characteristic of\nexclusivity: the reason for a tool to come and go from a jobsite may be\nfor its protection or alternative use, which serves the contractor’s\ninterest, not the interest of the public works project. On the other hand,\nthe milling machines that Plaintiffs transported constituted a highly\nsignificant component of the public works project on which they were\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 13\n\nmachine is “more akin to a tool, not a building material,” and\non that basis distinguished Plaintiffs’ mobilization efforts\nfrom other work that involved “a building material, like\naggregate subbase or asphalt,” and therefore satisfied the\nthird Williams factor. Id. 6 The court also expressed concern\nabout a potential slippery slope, pondering whether\nPlaintiffs’ “argument could be used to justify application of\nthe prevailing wage law to the transportation of many things\nneeded for a public works construction job, such as ‘tools,\nportable toilets, generators, potable water, lumber, asphalt,\n[and] steel,’” and noting that “[t]he California Court of\nAppeal has cautioned against an interpretation under which\n‘nearly any activity related to the completion or fulfillment\nof a public works contract would be subject to the prevailing\nwage law, regardless of where it takes place or whether it\nplays a substantial role in the process of construction.’” Id.\nat 8 (quoting Sheet Metal Workers, 176 Cal. Rptr. 3d at\n642).\n\n In short, application of the three Williams factors\nsuggests—albeit not conclusively—that Plaintiffs did not\n\nemployed. The heavy equipment was specifically tailored to perform the\ntype of work required by the project, and unlike other construction tools,\nwas not widely usable in other contexts. In this sense, the milling\nmachines might have been “necessary to accomplish or fulfill the\ncontract” to an even greater degree than common construction tools like\nportable toilets or generators, or generic materials like asphalt. Williams,\n67 Cal. Rptr. 3d at 613.\n\n 6\n The court cited O. G. Sansone’s discussion of Green v. Jones,\n128 N.W.2d 1 (Wis. 1964), in which the Wisconsin Supreme Court\ndetermined that haulers were covered by the prevailing wage law when\nthey hauled materials that “were dumped or spread directly on the\nroadbed and were immediately used in the construction of the project.”\nO. G. Sansone, 127 Cal. Rptr. at 804 (citing Green, 128 N.W.2d at 7).\n\f14 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nperform the offsite mobilization work in the execution of a\npublic works contract such that the prevailing wage law\napplied. 7\n\n However, other considerations suggest a contrary\nconclusion. To begin, the distinctions between Williams and\nSheet Metal Workers and this case are significant. Unlike\nthe workers in those cases, Plaintiffs performed work on the\npublic works site that indisputably qualified for the\nprevailing wage, leaving us to determine whether work they\nperformed offsite in connection with those efforts should be\nsimilarly compensated. Whether wage rates for workers\nemployed on a public works project should vary based on\nthe task performed is a different inquiry from whether a class\n\n 7\n Additionally, although not controlling, the federal Davis-Bacon\nAct provides support for this result. “California courts have turned to\nthe Davis-Bacon Act for guidance on issues not clearly answered by\nCalifornia authority.” Sheet Metal Workers, 176 Cal. Rptr. 3d at 649–50\n(“[U]nless the Davis-Bacon Act is fundamentally inconsistent with the\nportions of the prevailing wage law that one seeks to interpret, the\napproach taken under the Davis-Bacon Act may provide useful\nguidance.”). The Davis-Bacon Act “plainly imposes a geographical\nlimitation on the application of the federal prevailing wage law,” id. at\n642, as it applies to “mechanics and laborers employed directly on the\nsite of the work.” 40 U.S.C. § 3142(c)(1). The “site of work” does not\ninclude “permanent home offices, branch plant establishments,\nfabrication plants, tool yards, etc., of a contractor or subcontractor whose\nlocation and continuance in operation are determined wholly without\nregard to a particular Federal or federally assisted contract or project.”\n29 C.F.R. § 5.2(l)(3). The same regulation also specifies that “the\ntransportation of materials or supplies to or from the site of the work by\nemployees of the construction contractor or a construction subcontractor\nis not ‘construction, prosecution, completion, or repair.’” Id. § 5.2(j)(2).\nAccordingly, although the Davis-Bacon Act is not dispositive,\ninterpreting Plaintiffs’ offsite mobilization work as outside “the\nexecution of” a public works contract is consistent with the Act’s\nguidance.\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 15\n\nof employees is sufficiently involved in a public works\nproject to be considered employed in the execution of a\npublic works contract, and Williams and Sheet Metal\nWorkers only addressed the latter issue. Furthermore, the\nCourt of Appeal’s geographic concern in Sheet Metal\nWorkers—specifically, that the manufacturing work at issue\nthere could conceivably have been undertaken anywhere,\nand thus did not necessarily implicate the policy concern\nunderlying the prevailing wage law—is not present here.\nPlaintiffs’ mobilization and transportation work was\ngeographically confined to areas in reasonable proximity to\nthe public works site. Lastly, whereas Williams involved a\nworker with “the status of a bona fide materials supplier,”\n67 Cal. Rptr. 3d at 613–14, Plaintiffs directly worked for a\npublic works contractor, not a materials supplier. These\nnotable distinctions suggest that Williams and Sheet Metal\nWorkers might be of limited use in answering the question\nthat forms the basis of this appeal.\n\n Additionally, Plaintiffs rely on the DIR’s interpretations\nof its Public Works Manual and prevailing wage\ndeterminations, which, they contend, “show that\nmobilization is part and parcel of a contractor’s prevailing\nwage obligations.” They acknowledge that “a published\ndetermination is not a legal opinion or a position\nstatement”—a position echoed by the Public Works Manual,\nwhich asserts that it “is not intended as a comprehensive\nsummary of existing law or duly promulgated regulations”\nand “should not be relied upon” to “establish rules of general\napplication.” However, “[a]lthough the [DIR] has\ndetermined that its coverage determinations do not have\nprecedential value, the determinations nonetheless constitute\nadministrative interpretations entitled to considerable\ndeference.” Sheet Metal Workers, 176 Cal. Rptr. 3d at 647.\n\f16 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\n The relevant provision of the Public Works Manual reads\nas follows:\n\n Travel time related to a public works project\n constitutes “hours worked” on the project,\n which is payable at not less than the\n prevailing rate based on the worker’s\n classification, unless the Director’s wage\n determination for that classification\n specifically includes a lesser travel time rate.\n (See Director’s Decision in In the Matter of\n Kern Asphalt Paving & Sealing Co., Inc.\n (March 28, 2008), Case No. 04-0117-PWH.\n (See also Morillion v. Royal Packing Co.\n (2000) 22 Cal.4th 575).) Travel time required\n by an employer after a worker reports to the\n first place at which his or her presence is\n required by the employer is compensable\n travel time, and includes travel to a public\n work site, whether from the contractor’s\n yard, shop, another public work site, or a\n private job site. All such compensable travel\n time must be paid at the same prevailing\n wage rate required for the work actually\n performed by the worker at the public works\n site. No additional facts, such as whether\n tools or supplies are being delivered by the\n worker to the site, need be present.\n\nGiven that DIR decisions, while not binding, are at the very\nleast revealing, this provision seems to favor Plaintiffs’\nposition. This is particularly true because the provision was\nundergirded by the DIR’s decision in In re Kern Asphalt\nPaving & Sealing Co., No. 04-0117-PWH, in which it\nconcluded that travel time was compensable at the prevailing\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 17\n\nwage for employees’ work on a public jobsite. With regard\nto the prevailing wage, the DIR wrote:\n\n The relevant prevailing wage determinations\n contain no special rate for travel time. In the\n absence of any evidence to the contrary, the\n required travel time must be regarded as\n incidental to the workers’ regular duties and\n payable at the same prevailing rates that\n apply to the classification associated with\n those duties. [The employer] has presented\n no argument or evidence supporting a\n different rate outside of its contention that it\n was not obligated to pay for the travel time at\n all.\n\n(footnote omitted). Although this determination supports\nPlaintiffs’ position, DIR determinations must be designated\nas precedential in order “to be relied upon in subsequent\ndeterminations,” State Bldg. & Constr. Trades Council of\nCal. v. Duncan, 76 Cal. Rptr. 3d 507, 515 (Ct. App. 2008)\n(citing Cal. Gov’t Code § 11425.60), and Kern Asphalt was\nnot so designated. See Director’s Prevailing Wage\nEnforcement Decisions (Labor Code section 1742) (2007 to\npresent), Dep’t of Indus. Relations, http://www.dir.ca.gov/o\nprl/PrevWageEncDecision.htm (last visited Jan. 7, 2019)\n(listing Kern Asphalt among decisions that “have not been\ndesignated precedential and, therefore, . . . cannot be relied\non as authority in future cases”). Nevertheless, the reasoning\nand conclusion of Kern Asphalt are instructive, if not\nbinding, even though the courts bear the ultimate\nresponsibility for interpreting the statutory language of the\nprevailing wage law. See City of Long Beach, 102 P.3d at\n910 (“When an administrative agency construes a statute in\nadopting a regulation or formulating a policy, the court will\n\f18 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nrespect the agency interpretation as one of several\ninterpretive tools that may be helpful. In the end, however,\n‘[the court] must . . . independently judge the text of the\nstatute.’” (alterations in original) (quoting Agnew v. State\nBd. of Equalization, 981 P.2d 52, 60 (Cal. 1999))).\n\n C. Summation\n\n Ultimately, no California court has addressed whether\noffsite mobilization work, performed by workers who are\notherwise employed on a public works project, entitles the\nworkers to prevailing wages for those efforts. We note that\nthe various possible outcomes to this question could yield\nwide-ranging results. For example, a broader application of\nKern Asphalt might result in an extension of prevailing\nwages to a range of public works-adjacent activities,\nincluding mobilization and travel. Alternatively,\nendorsement of the district court’s analysis might limit\nprevailing wages only to work that satisfies the factors set\nforth by the Court of Appeal in Williams, and thus limit\nwages for workers employed on public works projects when\nthey perform offsite tasks, even when that work is closely\nrelated to their onsite employment. Resolution of this issue\nmight also implicate, as the district court noted, workers who\nhaul other equipment to public works sites, from generators\nand scaffolding to water and portable toilets.\n\n Given the potential scope of this decision, its impact on\nCalifornia workers, and the absence of guiding precedent,\nwe conclude that certification to the California Supreme\nCourt of the question presented in Part I is appropriate.\n\nIV. Administrative Information\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\f MENDOZA V. FONSECA MCELROY GRINDING CO. 19\n\n The title of this case is: LEOPOLDO PENA\nMENDOZA, JOSE ARMANDO CORTES, and ELVIZ\nSANCHEZ, Plaintiffs-Appellants v. FONSECA\nMCELROY GRINDING CO., INC and GRANITE ROCK\nCOMPANY, Defendants-Appellees.\n\n The case number in our court is 17-15221.\n\n Plaintiffs-Appellants Leopoldo Pena Mendoza, Jose\nArmando Cortes, and Elviz Sanchez are represented by the\nfollowing counsel:\n\n Tomas E. Margain and Huy Ngoc Tran\n Justice at Work Law Group\n 84 West Santa Clara Street, Suite 790\n San Jose, California 95113\n\n Defendants-Appellees Fonseca McElroy Grinding Co.,\nInc. and Granite Rock Company are represented by the\nfollowing counsel:\n\n Paul V. Simpson\n Simpson, Garrity, Innes & Jacuzzi, PC\n 601 Gateway Boulevard, Suite 950\n South San Francisco, California 94080\n\n We designate Leopoldo Pena Mendoza, Jose Armando\nCortes, and Elviz Sanchez as the petitioners if our request\nfor a decision is granted, as they are the appellants before our\ncourt.\n\n The clerk of this court shall submit to the California\nSupreme Court, under seal of the United States Court of\nAppeals for the Ninth Circuit, copies of all relevant briefs\nand excerpts of record, as well as an original and ten copies\n\f20 MENDOZA V. FONSECA MCELROY GRINDING CO.\n\nof this order, with a certificate of service on the parties. Cal.\nR. Ct. 8.548(c)–(d).\n\n This case is withdrawn from submission. Further\nproceedings before us are stayed pending the California\nSupreme Court’s decision. The parties shall notify the clerk\nof this court within seven days after the California Supreme\nCourt accepts or declines this request, and again within\nseven days if the California Supreme Court issues a decision.\nThe panel retains jurisdiction over further proceedings. The\nclerk is directed to administratively close this docket,\npending further order.\n\n IT IS SO ORDERED.\n[END_CASE]", "role": "user" } ]
4,581,582		Guillermo Robles v. Dominos Pizza LLC	2019-01-15	17-55504	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Paul J. Watford and John B. Owens, Circuit Judges, and Jennifer G. Zipps, * District Judge.", "parties": "", "opinions": [{"author": "OWENS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GUILLERMO ROBLES, an individual, No. 17-55504\n Plaintiff-Appellant,\n D.C. No.\n v. 2:16-cv-06599-\n SJO-FFM\n DOMINO’S PIZZA, LLC, a limited\n liability corporation,\n Defendant-Appellee. OPINION\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n S. James Otero, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Pasadena, California\n\n Filed January 15, 2019\n\n Before: Paul J. Watford and John B. Owens, Circuit\n Judges, and Jennifer G. Zipps, * District Judge.\n\n Opinion by Judge Owens\n\n\n\n \n The Honorable Jennifer G. Zipps, United States District Judge for\nthe District of Arizona, sitting by designation.\n\f2 ROBLES V. DOMINO’S PIZZA\n\n SUMMARY \n\n\n Americans with Disabilities Act\n\n The panel reversed the district court’s dismissal of an\naction under Title III of the Americans with Disabilities Act\nand California’s Unruh Civil Rights Act, alleging that\nDomino’s Pizza’s website and mobile application were not\nfully accessible to a blind or visually impaired person.\n\n The panel held that the ADA applied to Domino’s\nwebsite and app because the Act mandates that places of\npublic accommodation, like Domino’s, provide auxiliary\naids and services to make visual materials available to\nindividuals who are blind. Even though customers primarily\naccessed the website and app away from Domino’s physical\nrestaurants, the panel stated that the ADA applies to the\nservices of a public accommodation, not services in a place\nof public accommodation. The panel stated that the website\nand app connected customers to the goods and services of\nDomino’s physical restaurants.\n\n The panel held that imposing liability on Domino’s\nunder the ADA would not violate the company’s Fourteenth\nAmendment right to due process. The panel held that the\nstatute was not impermissibly vague, and Domino’s had\nreceived fair notice that its website and app must comply\nwith the ADA. Further, the plaintiff did not seek to impose\nliability on Domino’s for failure to comply with the Web\nContent Accessibility Guidelines 2.0, private industry\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ROBLES V. DOMINO’S PIZZA 3\n\nstandards for website accessibility. Rather, an order\nrequiring compliance with WCAG 2.0 was a possible\nequitable remedy. Finally, the lack of specific regulations,\nnot yet promulgated by the Department of Justice, did not\neliminate Domino’s statutory duty.\n\n The panel held that the district court erred in invoking\nthe prudential doctrine of primary jurisdiction, which allows\ncourts to stay proceedings or to dismiss a complaint without\nprejudice pending the resolution of an issue within the\nspecial competence of an administrative agency. The panel\nreasoned that the DOJ was aware of the issue, and its\nwithdrawal of an Advanced Notice of Proposed Rulemaking\nmeant that undue delay was inevitable. The delay was\nneedless because the application of the ADA to the facts of\nthis case was well within the district court’s competence.\nThe panel remanded the case to the district court.\n\n\n COUNSEL\n\nJoseph R. Manning (argued) and Michael J. Manning,\nManning Law APC, Newport Beach, California, for\nPlaintiff-Appellant.\n\nGregory Francis Hurley (argued) and Bradley J. Leimkuhler,\nSheppard Mullin Richter & Hampton LLP, Costa Mesa,\nCalifornia, for Defendant-Appellee.\n\nJessica Paulie Weber (argued) and Eve L. Hill, Brown\nGoldstein & Levy LLP, Baltimore, Maryland, for Amici\nCuriae National Federation of the Blind, American Council\nof the Blind, American Foundation for the Blind,\nAssociation of Late Deafened Adults, California Council of\nthe Blind, California Foundation for Independent Living\n\f4 ROBLES V. DOMINO’S PIZZA\n\nCenters, Disability Rights Advocates, Disability Rights\nCalifornia, Disability Rights Education & Defense Fund,\nNational Association of the Deaf, National Disability Rights\nNetwork, National Federation of the Blind of California,\nWashington Lawyers’ Committee for Civil Rights and\nUrban Affairs, and World Institute on Disability.\n\nStephanie N. Moot and Carol C. Lumpkin, K&L Gates LLP,\nMiami, Florida; Martin S. Kaufman, Executive VP and\nGeneral Counsel, Atlantic Legal Foundation, Harrison, New\nYork; for Amicus Curiae The Atlantic Legal Foundation.\n\nStephanie Martz, National Retail Federation, Washington,\nD.C., for Amicus Curiae National Retail Federation.\n\nKathleen McGuigan and Deborah White, Retail Litigation\nCenter, Inc., Arlington, Virginia, for Amicus Curiae Retail\nLitigation Center, Inc.\n\nFelicia Watson and Jeffrey B. Augello, National Association\nof Home Builders of the United States, Washington, D.C.,\nfor Amicus Curiae National Association of Home Builders\nof the United States.\n\nJanet Galeria and Warren Postman, U.S. Chamber Litigation\nCenter, Washington, D.C., for Amicus Curiae Chamber of\nCommerce of the United States of America.\n\nAngelo I. Amador, Restaurant Law Center, Washington,\nD.C., for Amicus Curiae Restaurant Law Center.\n\nElizabeth Milito, Karen R. Harned, National Federation of\nIndependent Business Small Business Legal Center,\nWashington, D.C., for Amicus Curiae National Federation\nof Independent Business Small Business Legal Center.\n\f ROBLES V. DOMINO’S PIZZA 5\n\nChristine Mott, International Council of Shopping Centers,\nNew York, New York, for Amicus Curiae International\nCouncil of Shopping Centers.\n\nJustin Vermuth, American Resort Development Association,\nWashington, D.C., for Amicus Curiae American Resort\nDevelopment Association.\n\nMary Caroline Miller, Kevin W. Shaughnessy, and Joyce\nAckerbaum Cox, Baker & Hostetler LLP, Orlando, Florida;\nJohn B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio; for\nAmici Curiae Restaurant Law Center, American Bankers\nAssociation, American Hotel & Lodging Association,\nAmerican Resort Development Association, Asian\nAmerican Hotel Owners Association, Chamber of\nCommerce of the United States of America, International\nCouncil of Shopping Centers, International Franchise\nAssociation, National Association of Convenience Stores,\nNational Association of Home Builders of the United States,\nNational Association of Realtors, National Association of\nTheater Owners, National Federation of Independent\nBusiness Small Business Legal Center, National\nMultifamily Housing Council, National Retail Federation,\nRetail Litigation Center.\n\f6 ROBLES V. DOMINO’S PIZZA\n\n OPINION\n\nOWENS, Circuit Judge:\n\n Plaintiff Guillermo Robles, a blind man, appeals from\nthe district court’s dismissal of his complaint alleging\nviolations of the Americans with Disabilities Act, 42 U.S.C.\n§ 12101, and California’s Unruh Civil Rights Act (UCRA),\nCalifornia Civil Code § 51. Robles alleged that Defendant\nDomino’s Pizza, LLC, (Domino’s) failed to design,\nconstruct, maintain, and operate its website and mobile\napplication (app) to be fully accessible to him. We have\njurisdiction under 28 U.S.C. § 1291, and we reverse and\nremand.\n\nI. FACTUAL AND PROCEDURAL BACKGROUND\n\n Robles accesses the internet using screen-reading\nsoftware, which vocalizes visual information on websites.\nDomino’s operates a website and app that allows customers\nto order pizzas and other products for at-home delivery or\nin-store pickup, and receive exclusive discounts.\n\n On at least two occasions, Robles unsuccessfully\nattempted to order online a customized pizza from a nearby\nDomino’s. Robles contends that he could not order the pizza\nbecause Domino’s failed to design its website and app so his\nsoftware could read them.\n\n In September 2016, Robles filed this suit seeking\ndamages and injunctive relief based on Domino’s failure to\n“design, construct, maintain, and operate its [website and\napp] to be fully accessible to and independently usable by\nMr. Robles and other blind or visually-impaired people,” in\nviolation of the ADA and UCRA. Robles sought a\n“permanent injunction requiring Defendant to . . . comply\n\f ROBLES V. DOMINO’S PIZZA 7\n\nwith [Web Content Accessibility Guidelines (WCAG) 2.0]\nfor its website and Mobile App.” 1 Domino’s moved for\nsummary judgment on the grounds that (1) the ADA did not\ncover Domino’s online offerings; and (2) applying the ADA\nto the website or app violated Domino’s due process rights.\nDomino’s alternatively invoked the primary jurisdiction\ndoctrine, which permits a court to dismiss a complaint\npending the resolution of an issue before an administrative\nagency with special competence. See Clark v. Time Warner\nCable, 523 F.3d 1110, 1114 (9th Cir. 2008) (defining\nprimary jurisdiction doctrine).\n\n The district court first held that Title III of the ADA\napplied to Domino’s website and app. The court highlighted\nthe ADA’s “auxiliary aids and services” section, 42 U.S.C.\n§ 12182(b)(2)(A)(iii), which requires that covered entities\nprovide auxiliary aids and services to ensure that individuals\nwith disabilities are not excluded from accessing the services\nof a “place of public accommodation”—in this case, from\nusing the website or app to order goods from Domino’s\nphysical restaurants.\n\n\n\n\n 1\n WCAG 2.0 guidelines are private industry standards for website\naccessibility developed by technology and accessibility experts. WCAG\n2.0 guidelines have been widely adopted, including by federal agencies,\nwhich conform their public-facing, electronic content to WCAG 2.0\nlevel A and level AA Success Criteria. 36 C.F.R. pt. 1194, app. A\n(2017). In addition, the Department of Transportation requires airline\nwebsites to adopt these accessibility standards. See 14 C.F.R. § 382.43\n(2013). Notably, the Department of Justice has required ADA-covered\nentities to comply with WCAG 2.0 level AA (which incorporates level\nA) in many consent decrees and settlement agreements in which the\nUnited States has been a party.\n\f8 ROBLES V. DOMINO’S PIZZA\n\n The district court then addressed Domino’s argument\nthat applying the ADA to its website and app violated its due\nprocess rights because the Department of Justice (DOJ) had\nfailed to provide helpful guidance, despite announcing its\nintention to do so in 2010. 2 See Nondiscrimination on the\nBasis of Disability, 75 Fed. Reg. 43460-01 (July 26, 2010)\n(issuing Advance Notice of Proposed Rulemaking\n(ANPRM) to “explor[e] what regulatory guidance [DOJ] can\npropose to make clear to entities covered by the ADA their\nobligations to make their Web sites accessible”). 3\n\n The district court, relying heavily on United States v.\nAMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),\nconcluded that imposing the WCAG 2.0 standards on\nDomino’s “without specifying a particular level of success\ncriteria and without the DOJ offering meaningful guidance\non this topic . . . fl[ew] in the face of due process.” 4 The\n 2\n DOJ is charged with issuing regulations concerning the\nimplementation of the ADA. See 42 U.S.C. § 12186(b) (“[T]he Attorney\nGeneral shall issue regulations in an accessible format to carry out the\nprovisions of this subchapter . . . .”); Bragdon v. Abbott, 524 U.S. 624,\n646 (1998) (noting that DOJ is “the agency directed by Congress to issue\nimplementing regulations, to render technical assistance explaining the\nresponsibilities of covered individuals and institutions, and to enforce\nTitle III in court”) (internal citations omitted).\n\n 3\n We recognize that DOJ withdrew its ANPRM on December 26,\n2017, so the district court did not have the benefit of considering this\nwithdrawal when it issued its decision on March 20, 2017. See\nNondiscrimination on the Basis of Disability, 82 Fed. Reg. 60932-01\n(Dec. 26, 2017).\n\n 4\n Only after Robles filed this suit, Domino’s website and app began\ndisplaying a telephone number that customers using screen-reading\nsoftware could dial to receive assistance. The district court noted that\nRobles had “failed to articulate why [Domino’s] provision of a telephone\nhotline for the visually impaired . . . does not fall within the range of\n\f ROBLES V. DOMINO’S PIZZA 9\n\ndistrict court held that DOJ “regulations and technical\nassistance are necessary for the Court to determine what\nobligations a regulated individual or institution must abide\nby in order to comply with Title III.” In the district court’s\nview, therefore, only the long-awaited regulations from DOJ\ncould cure the due process concerns, so it had no choice but\nto invoke the primary jurisdiction doctrine. The district\ncourt granted Domino’s motion to dismiss without\nprejudice, and this appeal followed.\n\nII. STANDARD OF REVIEW\n\n We review de novo the district court’s interpretation and\nconstruction of a federal statute—here, the court’s\napplication of the ADA to websites and apps. See ASARCO,\nLLC v. Celanese Chem. Co., 792 F.3d 1203, 1208 (9th Cir.\n2015). As the constitutionality of a statute or regulation is a\nquestion of law, we also review de novo the district court’s\nholding that applying the ADA to websites and apps would\nviolate due process. See Az. Libertarian Party v. Reagan,\n798 F.3d 723, 728 (9th Cir. 2015); Preminger v. Peake,\n552 F.3d 757, 765 n.7 (9th Cir. 2008). Finally, we review\nde novo the court’s invocation of the primary jurisdiction\ndoctrine. See Reid v. Johnson & Johnson, 780 F.3d 952, 958\n(9th Cir. 2015).\n\n\n\npermissible options afforded under the ADA.” However, the district\ncourt did not reach whether a genuine issue of material fact existed as to\nthe telephone hotline’s compliance with the ADA, including whether the\nhotline guaranteed full and equal enjoyment and “protect[ed] the privacy\nand independence of the individual with a disability.” 28 C.F.R.\n§ 36.303(c)(1)(ii) (2017). We believe that the mere presence of the\nphone number, without discovery on its effectiveness, is insufficient to\ngrant summary judgment in favor of Domino’s.\n\f10 ROBLES V. DOMINO’S PIZZA\n\nIII. DISCUSSION\n\n This appeal presents three questions. First, whether the\nADA applies to Domino’s website and app. Second, if so,\nwhether that holding raises due process concerns. Third,\nwhether a federal court should invoke the primary\njurisdiction doctrine because DOJ has failed to provide\nmeaningful guidance on how to make websites and apps\ncomply with the ADA.\n\n A. The ADA’s Application to Domino’s Website and\n App\n\n The ADA “as a whole is intended ‘to provide a clear and\ncomprehensive national mandate for the elimination of\ndiscrimination against individuals with disabilities.’”\nOlmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999)\n(quoting 42 U.S.C. § 12101(b)(1)). Title III of the ADA\nadvances that goal by providing that “[n]o individual shall\nbe discriminated against on the basis of disability in the full\nand equal enjoyment of the goods, services, facilities,\nprivileges, advantages, or accommodations of any place of\npublic accommodation by any person who owns, leases (or\nleases to), or operates a place of public accommodation.”\n42 U.S.C. § 12182(a). We agree with the district court that\nthe ADA applies to Domino’s website and app.\n\n The ADA expressly provides that a place of public\naccommodation, like Domino’s, engages in unlawful\ndiscrimination if it fails to “take such steps as may be\nnecessary to ensure that no individual with a disability is\nexcluded, denied services, segregated or otherwise treated\ndifferently than other individuals because of the absence of\n\f ROBLES V. DOMINO’S PIZZA 11\n\nauxiliary aids and services.” 5 Id. § 12182(b)(2)(A)(iii).\nDOJ regulations require that a public accommodation\n“furnish appropriate auxiliary aids and services where\nnecessary to ensure effective communication with\nindividuals with disabilities.” 28 C.F.R. § 36.303(c)(1)\n(emphasis added); see Bragdon, 524 U.S. at 646 (holding\nthat DOJ’s administrative guidance on ADA compliance is\nentitled to deference). And DOJ defines “auxiliary aids and\nservices” to include “accessible electronic and information\ntechnology” or “other effective methods of making visually\ndelivered materials available to individuals who are blind or\nhave low vision.” 28 C.F.R. § 36.303(b)(2).\n\n Therefore, the ADA mandates that places of public\naccommodation, like Domino’s, provide auxiliary aids and\nservices to make visual materials available to individuals\nwho are blind. See id. § 36.303. This requirement applies\nto Domino’s website and app, even though customers\npredominantly access them away from the physical\nrestaurant: “The statute applies to the services of a place of\npublic accommodation, not services in a place of public\naccommodation. To limit the ADA to discrimination in the\nprovision of services occurring on the premises of a public\naccommodation would contradict the plain language of the\nstatute.” Nat’l Fed’n of the Blind v. Target Corp., 452 F.\n\n\n\n 5\n The ADA exempts covered entities from the requirement to\nprovide auxiliary aids and services where compliance would\n“fundamentally alter the nature of the good, service, facility, privilege,\nadvantage, or accommodation being offered or would result in an undue\nburden.” 42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R.\n§ 36.303(a). At this stage, Domino’s does not argue that making its\nwebsite or app accessible to blind people would fundamentally alter the\nnature of its offerings or be an undue burden.\n\f12 ROBLES V. DOMINO’S PIZZA\n\nSupp. 2d 946, 953 (N.D. Cal. 2006) (emphasis in original)\n(internal citation omitted).\n\n The alleged inaccessibility of Domino’s website and app\nimpedes access to the goods and services of its physical\npizza franchises—which are places of public\naccommodation. See 42 U.S.C. § 12181(7)(B) (listing a\nrestaurant as a covered “public accommodation”).\nCustomers use the website and app to locate a nearby\nDomino’s restaurant and order pizzas for at-home delivery\nor in-store pickup. This nexus between Domino’s website\nand app and physical restaurants—which Domino’s does not\ncontest—is critical to our analysis. 6\n\n In Weyer v. Twentieth Century Fox Film Corp., our court\nexamined whether an insurance company that administered\nan allegedly discriminatory employer-provided insurance\npolicy was a covered “place of public accommodation.”\n198 F.3d 1104, 1113–14 (9th Cir. 2000). We concluded that\nit was not. Because the ADA only covers “actual, physical\nplaces where goods or services are open to the public, and\nplaces where the public gets those goods or services,” there\nhad to be “some connection between the good or service\ncomplained of and an actual physical place.” Id. at 1114.\nWhile the insurance company had a physical office, the\ninsurance policy at issue did not concern accessibility, or\n“such matters as ramps and elevators so that disabled people\ncan get to the office.” Id. And although it was administered\nby the insurance company, the employer-provided policy\n\n\n\n 6\n We need not decide whether the ADA covers the websites or apps\nof a physical place of public accommodation where their inaccessibility\ndoes not impede access to the goods and services of a physical location.\n\f ROBLES V. DOMINO’S PIZZA 13\n\nwas not a good offered by the insurance company’s physical\noffice. Id. at 1115.\n\n Unlike the insurance policy in Weyer, Domino’s website\nand app facilitate access to the goods and services of a place\nof public accommodation—Domino’s physical restaurants.\nThey are two of the primary (and heavily advertised) means\nof ordering Domino’s products to be picked up at or\ndelivered from Domino’s restaurants. We agree with the\ndistrict court in this case—and the many other district courts\nthat have confronted this issue in similar contexts 7—that the\nADA applies to Domino’s website and app, which connect\ncustomers to the goods and services of Domino’s physical\nrestaurants.\n\n B. Due Process\n\n The second question we address is whether applying the\nADA to Domino’s website and app raises due process\nconcerns. Despite concluding that the ADA covered\nDomino’s website and app, the district court held that\n\n\n\n\n 7\n See, e.g., Robles v. Yum! Brands, Inc., 2018 WL 566781, at 4\n(C.D. Cal. Jan. 24, 2018); Rios v. N.Y. & Co., Inc., 2017 WL 5564530,\nat 3 (C.D. Cal. Nov. 16, 2017); Reed v. CVS Pharmacy, Inc., 2017 WL\n4457508, at 3 (C.D. Cal. Oct. 3, 2017); Gorecki v. Hobby Lobby Stores,\nInc., 2017 WL 2957736, at 3–4 (C.D. Cal. June 15, 2017); Target,\n452 F. Supp. 2d at 953; Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d\n1368, 1375–76 (S.D. Fla. 2018); Castillo v. Jo-Ann Stores, LLC, 286 F.\nSupp. 3d 870, 881 (N.D. Ohio 2018); Gil v. Winn-Dixie Stores, Inc.,\n257 F. Supp. 3d 1340, 1348–49 (S.D. Fla. 2017), appeal docketed, No.\n17-13467 (11th Cir. Aug. 1, 2017).\n\f14 ROBLES V. DOMINO’S PIZZA\n\nimposing liability on Domino’s here would violate its\nFourteenth Amendment right to due process. 8\n\n As a preliminary matter, we hold that Domino’s has\nreceived fair notice that its website and app must comply\nwith the ADA. An impermissibly vague statute violates due\nprocess because it does not “give fair notice of conduct that\nis forbidden or required.” F.C.C. v. Fox Television Stations,\nInc., 567 U.S. 239, 253 (2012). However, “[a] statute is\nvague not when it prohibits conduct according ‘to an\nimprecise but comprehensible normative standard, but rather\nin the sense that no standard of conduct is specified at all.’”\nBotosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir.\n2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611,\n614 (1971)). Moreover, “[b]ecause the ADA is a statute that\nregulates commercial conduct, it is reviewed under a less\nstringent standard of specificity” than, for example, criminal\nlaws or restrictions on speech. Id. (citing Vill. of Hoffman\nEstates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,\n498–99 (1982)). 9 Therefore, the ADA would be vague “only\n\n 8\n The district court also held (in error) that Robles conceded\nDomino’s due process argument by not squarely addressing it at the\nmotion to dismiss stage. The relevant issue here is whether Domino’s\nwebsite and app comply with the ADA. Domino’s due process argument\nis a defense to that issue. Domino’s cites no authority holding that a\nplaintiff’s failure to respond to a defense waives the plaintiff’s cause of\naction (here, the ADA). Regardless, “an issue will generally be deemed\nwaived on appeal if the argument was not raised sufficiently for the trial\ncourt to rule on it.” In re Mercury Interactive Corp. Secs. Litig., 618 F.3d\n988, 992 (9th Cir. 2010) (internal quotation marks omitted). Here, the\nparties raised the matter sufficiently for the district court to dedicate four\npages to this issue, and Robles did not waive his ability to respond to\nDomino’s due process argument.\n 9\n In Village of Hoffman Estates, the Supreme Court explained: “The\ndegree of vagueness that the Constitution tolerates—as well as the\n\f ROBLES V. DOMINO’S PIZZA 15\n\nif it is so indefinite in its terms that it fails to articulate\ncomprehensible standards to which a person’s conduct must\nconform.” Id.\n\n The ADA articulates comprehensible standards to which\nDomino’s conduct must conform. Since its enactment in\n1990, the ADA has clearly stated that covered entities must\nprovide “full and equal enjoyment of the[ir] goods, services,\nfacilities, privileges, advantages, or accommodations” to\npeople with disabilities, 42 U.S.C. § 12182(a), and must\n“ensure that no individual with a disability is excluded,\ndenied services, segregated or otherwise treated differently\nthan other individuals because of the absence of auxiliary\naids and services,” id. § 12182(b)(2)(A)(iii). DOJ has\nclarified that these provisions require “effective\ncommunication.” 28 C.F.R. § 36.303(c)(1). Moreover,\nsince it announced its position in 1996, DOJ has “repeatedly\naffirmed the application of [T]itle III to Web sites of public\naccommodations.” 75 Fed. Reg. 43460-01, 43464 (July 26,\n2010). Thus, at least since 1996, Domino’s has been on\nnotice that its online offerings must effectively communicate\nwith its disabled customers and facilitate “full and equal\nenjoyment” of Domino’s goods and services. See 42 U.S.C.\n§ 12182(a); see also Gorecki, 2017 WL 2957736, at 5\n(“Title III’s general prohibition of discrimination on the\nbasis of disability, and its requirements to provide\nappropriate auxiliary aids and services, where necessary to\nensure effective communication, place an affirmative\n\n\nrelative importance of fair notice and fair enforcement—depends in part\non the nature of the enactment. Thus, economic regulation is subject to\na less strict vagueness test because its subject matter is often more\nnarrow, and because businesses, which face economic demands to plan\nbehavior carefully, can be expected to consult relevant legislation in\nadvance of action.” 455 U.S. at 498 (internal footnotes omitted).\n\f16 ROBLES V. DOMINO’S PIZZA\n\nobligation on places that meet the definition of a public\naccommodation to ensure disabled individuals have as full\nand equal enjoyment of their websites as non-disabled\nindividuals.”).\n\n However, the heart of Domino’s due process argument\nis not that Domino’s lacked fair notice that its website and\napp must comply with the ADA. Instead, Domino’s argues\nthat imposing liability would violate due process because\n(1) Robles seeks to impose liability on Domino’s for failing\nto comply with WCAG 2.0, which are private, unenforceable\nguidelines; and (2) DOJ has not issued regulations\nspecifying technical standards for compliance, so Domino’s\ndoes not have “fair notice of what specifically the ADA\nrequires companies to do in order to make their websites\naccessible.”\n\n 1. Robles Does Not Seek to Impose Liability\n Based on WCAG 2.0\n\n First, we address Domino’s argument that Robles seeks\nto impose liability based on Domino’s failure to comply with\nWCAG 2.0. Relying heavily on our decision in AMC,\nDomino’s argues that this would violate due process because\nDomino’s has not received fair notice of its obligation to\ncomply with the WCAG 2.0 guidelines. Yet, as explained\nbelow, Domino’s overstates both the holding of AMC and\nthe significance of WCAG 2.0 in this case.\n\n AMC concerned movie-theater accessibility for\nwheelchair-bound patrons. See 549 F.3d at 762. Our court\nreversed an injunction ordering that AMC’s stadium-style\ntheaters (many built before 1998) undergo a massive\nreconfiguration to comply with DOJ’s interpretation of an\nambiguous accessibility regulation (finalized in 1998). Id.\nat 768–70. Our court held that requiring AMC to\n\f ROBLES V. DOMINO’S PIZZA 17\n\nreconfigure theaters built before DOJ announced its\ninterpretation of the ambiguous regulation would violate due\nprocess. Id.\n\n This case does not present the fair notice concerns of\nAMC, and the district court erred in equating the relevance\nof WCAG 2.0 with the regulation at issue in AMC. Here,\nRobles does not seek to impose liability based on Domino’s\nfailure to comply with WCAG 2.0. Rather, Robles merely\nargues—and we agree—that the district court can order\ncompliance with WCAG 2.0 as an equitable remedy if, after\ndiscovery, the website and app fail to satisfy the ADA. At\nthis stage, Robles only seeks to impose liability on Domino’s\nfor failing to comply with § 12182 of the ADA, not for the\nfailure to comply with a regulation or guideline of which\nDomino’s has not received fair notice. See Reed, 2017 WL\n4457508, at 5 (“[A]t this point in the litigation . . . Plaintiff\ndoes not seek to require [Defendant] to adopt any particular\nset of guidelines. Plaintiff simply alleges that her difficulty\naccessing [Defendant’s] website and mobile app violate the\nADA.”).\n\n Also unlike in AMC—where the overbroad injunction\nwould have required AMC to retrofit theaters built before it\nreceived fair notice of DOJ’s position—Domino’s does not\nallege that its website or app were created prior to (or never\nupdated since) 1996, when DOJ announced its position that\nthe ADA applies to websites of covered entities. Further, the\nregulation at issue in AMC was ambiguous. See 549 F.3d at\n764–67 (summarizing circuit split on how to interpret this\nregulation, which all courts agreed was ambiguous). It was\nunfair to expect AMC to have guessed which interpretation\nto follow when circuits were in disagreement and DOJ had\nnot announced its position. Id. at 768. By contrast, the\nstatutory provisions of § 12182 at issue here—requiring\n\f18 ROBLES V. DOMINO’S PIZZA\n\n“auxiliary aids and services” and “full and equal\nenjoyment”—are flexible, but not ambiguous, and have been\ninterpreted many times by federal courts. 10 Finally, in AMC,\nour court limited its due process holding to the district\ncourt’s remedy without disturbing liability. Id. at 768–70.\nHere, the district court dismissed the case at the pleading\nstage before Robles could conduct discovery and establish\nliability. Even if due process concerns akin to those in AMC\nwere present here, further consideration of them “would be\npremature because due process constrains the remedies that\nmay be imposed,” Fortyune v. City of Lomita, 766 F.3d\n1098, 1106 n.13 (9th Cir. 2014) (citing AMC, 549 F.3d at\n768–70) (emphasis added), and not the initial question of\nADA compliance. See Reed 2017 WL 4457508, at 4\n(“[W]hether or not [defendant’s] digital offerings must\ncomply with [WCAG], or any other set of noncompulsory\nguidelines, is a question of remedy, not liability.”) (emphasis\nin original).\n\n\n\n\n 10\n See, e.g., Baughman v. Walt Disney World Co., 685 F.3d 1131,\n1135 (9th Cir. 2012) (holding that, to provide “full and equal\nenjoyment,” public accommodations must “consider[] how their\nfacilities are used by non-disabled guests and then take reasonable steps\nto provide disabled guests with a like experience”); Fortyune v.\nAmerican Multi-Cinema, 364 F.3d 1075, 1085 (9th Cir. 2004)\n(interpreting “full and equal enjoyment” to require theater to provide\nwheelchair seating and adjacent seat for plaintiff’s wife); see also, e.g.,\nMcGann v. Cinemark, 873 F.3d 218, 223 (3d Cir. 2017) (holding that\ntheater’s failure to provide deaf patron with sign language interpreter—\nan auxiliary aid or service—excluded him from services); Argenyi v.\nCreighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) (holding that\nuniversity must provide reasonable auxiliary aids and services to\npartially deaf medical student to afford him opportunity equal to his\nnondisabled peers).\n\f ROBLES V. DOMINO’S PIZZA 19\n\n 2. The Lack of Specific Regulations Does Not\n Eliminate Domino’s Statutory Duty\n\n Second, we address Domino’s argument that imposing\nliability here would violate due process because Domino’s\nlacked “fair notice of what specifically the ADA requires\ncompanies to do in order to make their websites accessible.”\nIn other words, Domino’s argues it “needs consistent\nstandards when it designs its website.” While we understand\nwhy Domino’s wants DOJ to issue specific guidelines for\nwebsite and app accessibility, the Constitution only requires\nthat Domino’s receive fair notice of its legal duties, not a\nblueprint for compliance with its statutory obligations. And,\nas one district court noted, the lack of specific instructions\nfrom DOJ might be purposeful:\n\n The DOJ’s position that the ADA applies to\n websites being clear, it is no matter that the\n ADA and the DOJ fail to describe exactly\n how any given website must be made\n accessible to people with visual impairments.\n Indeed, this is often the case with the ADA’s\n requirements, because the ADA and its\n implementing regulations are intended to\n give public accommodations maximum\n flexibility in meeting the statute’s\n requirements. This flexibility is a feature, not\n a bug, and certainly not a violation of due\n process.\n\nReed, 2017 WL 4457508, at 5. A desire to maintain this\nflexibility might explain why DOJ withdrew its ANPRM\nrelated to website accessibility and “continue[s] to assess\nwhether specific technical standards are necessary and\nappropriate to assist covered entities with complying with\n\f20 ROBLES V. DOMINO’S PIZZA\n\nthe ADA.” 82 Fed. Reg. 60932-01 (Dec. 26, 2017)\n(emphasis added).\n\n And in any case, our precedent is clear that, “as a general\nmatter, the lack of specific regulations cannot eliminate a\nstatutory obligation.” City of Lomita, 766 F.3d at 1102; see\nalso Gorecki, 2017 WL 2957736, at 4 (“The lack of specific\nregulations [regarding website accessibility] does not\neliminate [defendant’s] obligation to comply with the ADA\nor excuse its failure to comply with the mandates of the\nADA.”).\n\n For example, in City of Lomita, the defendant-city\nargued that although existing Title II regulations broadly\nprohibited it from discriminating in its services, requiring the\ncity to provide accessible on-street parking would violate its\ndue process rights absent specific regulatory guidance.\n766 F.3d at 1102. Our court rejected that argument, and held\nthat the ADA’s regulations did not “suggest[] that when\ntechnical specifications do not exist for a particular type of\nfacility, public entities have no accessibility obligations.”\nId. at 1103 (citing Barden v. City of Sacramento, 292 F.3d\n1073, 1076–78 (9th Cir. 2002) (holding that Title II requires\npublic entities to maintain accessible public sidewalks,\nnotwithstanding absence of implementing regulations\naddressing sidewalks)).\n\n Similarly, in Kirola v. City & County of San Francisco,\nwe explained that even if there were no technical\naccessibility requirements for buildings and facilities under\nTitle II of the ADA, “[p]ublic entities would not suddenly\nfind themselves free to ignore access concerns when altering\nor building new rights-of-way, parks, and playgrounds.”\n860 F.3d 1164, 1180 (9th Cir. 2017). Instead, our court\napplied Title II’s “readily accessible” and “usable” standards\nto determine whether the city violated the ADA. Id.\n\f ROBLES V. DOMINO’S PIZZA 21\n\nAlthough DOJ guidance might have been helpful, “[g]iving\ncontent to general standards is foundational to the judicial\nfunction.” Id. (citing Marbury v. Madison, 5 U.S. 137, 177\n(1803)).\n\n Moreover, the possibility that an agency might issue\ntechnical standards in the future does not create a due\nprocess problem. In Reich v. Montana Sulphur & Chemical\nCompany, our court held that although the Secretary of\nLabor would likely promulgate specific standards for safe\nand healthy working conditions, these standards would only\n“amplify and augment” the existing statutory obligation to\nprovide a safe workspace and would not “displace” it.\n32 F.3d 440, 445 (9th Cir. 1994); cf. Or. Paralyzed Veterans\nof Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1132–33 (9th\nCir. 2003) (following DOJ’s interpretation of existing\nregulation, even though Access Board was addressing the\nspecific topic at issue through rulemaking). The same logic\napplies here.\n\n In sum, we conclude that the district court erred in\nholding that imposing liability in this case would violate\nDomino’s due process rights. Domino’s has received fair\nnotice that its website and app must provide effective\ncommunication and facilitate “full and equal enjoyment” of\nDomino’s goods and services to its customers who are\ndisabled. Our Constitution does not require that Congress or\nDOJ spell out exactly how Domino’s should fulfill this\nobligation.\n\n C. Primary Jurisdiction Doctrine\n\n Finally, we address the primary jurisdiction doctrine,\nwhich “allows courts to stay proceedings or to dismiss a\ncomplaint without prejudice pending the resolution of an\nissue within the special competence of an administrative\n\f22 ROBLES V. DOMINO’S PIZZA\n\nagency.” Clark, 523 F.3d at 1114. It is a prudential doctrine\nthat does not “implicate[] the subject matter jurisdiction of\nthe federal courts.” Astiana v. Hain Celestial Grp., Inc.,\n783 F.3d 753, 759 (9th Cir. 2015) (quoting Syntek\nSemiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d\n775, 780 (9th Cir. 2002)). Rather, it permits courts to\ndetermine “that an otherwise cognizable claim implicates\ntechnical and policy questions that should be addressed in\nthe first instance by the agency with regulatory authority\nover the relevant industry rather than by the judicial branch.”\nId. at 760 (quoting Clark, 523 F.3d at 1114).\n\n While “no fixed formula exists for applying the doctrine\nof primary jurisdiction,” we consider: “(1) the need to\nresolve an issue that (2) has been placed by Congress within\nthe jurisdiction of an administrative body having regulatory\nauthority (3) pursuant to a statute that subjects an industry or\nactivity to a comprehensive regulatory authority that\n(4) requires expertise or uniformity in administration.”\nDavel Commc’n, Inc. v. Qwest Corp., 460 F.3d 1075, 1086–\n87 (9th Cir. 2006); see also Astiana, 783 F.3d at 760 (same).\n\n Here, the district court erred in invoking primary\njurisdiction. The purpose of the doctrine is not to “secure\nexpert advice” from an agency “every time a court is\npresented with an issue conceivably within the agency’s\nambit.” Brown v. MCI WorldCom Network Servs., Inc.,\n277 F.3d 1166, 1172 (9th Cir. 2002); see also Astiana,\n783 F.3d at 760 (“Not every case that implicates the\nexpertise of federal agencies warrants invocation of primary\njurisdiction.”). Rather, “‘efficiency’ is the ‘deciding factor’\nin whether to invoke primary jurisdiction.” Astiana,\n783 F.3d at 760 (citation omitted). Our precedent is clear:\n\n [E]ven when agency expertise would be\n helpful, a court should not invoke primary\n\f ROBLES V. DOMINO’S PIZZA 23\n\n jurisdiction when the agency is aware of but\n has expressed no interest in the subject\n matter of the litigation. Similarly, primary\n jurisdiction is not required when a referral to\n the agency would significantly postpone a\n ruling that a court is otherwise competent to\n make.\n\nId. at 761 (emphases added). Both circumstances are present\nhere.\n\n First, DOJ is aware of the issue—it issued the ANPRM\nin 2010, 75 Fed. Reg. 43460-01 (July 26, 2010), and\nwithdrew it in 2017, 82 Fed. Reg. 60932-01 (Dec. 26, 2017).\nSecond, DOJ’s withdrawal means that the potential for\nundue delay is not just likely, but inevitable. Robles has no\nability to participate in an administrative hearing process\nwith remedies. See Arizona ex rel. Goddard v. Harkins\nAdmin. Servs., Inc., 2011 WL 13202686, at *3 (D. Az. Feb.\n8, 2011) (“[T]he DOJ does not have an administrative\nprocess in which these parties can directly participate to\nresolve their dispute. The absence of such an administrative\nprocess argues against referral to an agency under the\nprimary jurisdiction doctrine.”).\n\n Therefore, according to the district court, Robles cannot\nvindicate his statutory rights unless DOJ reopens and\ncompletes its rulemaking process. This would “needlessly\ndelay the resolution of” Robles’ claims and undercut\nefficiency, “the ‘deciding factor’ in whether to invoke\nprimary jurisdiction.” Astiana, 783 F.3d at 760 (citation\nomitted); see also Reid, 780 F.3d at 966–67 (declining to\ninvoke primary jurisdiction in part because “it has been over\na decade since the FDA indicated that it would issue a new\n[rule]”).\n\f24 ROBLES V. DOMINO’S PIZZA\n\n The delay is “needless” because the application of the\nADA to the facts of this case are well within the court’s\ncompetence. Properly framed, the issues for the district\ncourt to resolve on remand are whether Domino’s website\nand app provide the blind with auxiliary aids and services for\neffective communication and full and equal enjoyment of its\nproducts and services. Courts are perfectly capable of\ninterpreting the meaning of “equal” and “effective” and have\ndone so in a variety of contexts. See supra note 10\n(providing examples of circuit courts interpreting ADA’s\nrequirements of “full and equal enjoyment” and “auxiliary\naids and services” in non-website contexts); see also\nGeorgia v. Ashcroft, 539 U.S. 461, 462 (2003) (interpreting\n“effective exercise of the electoral franchise”), superseded\nby statute, 52 U.S.C. §§ 10304(b)(d), as recognized in Ala.\nLegislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1273\n(2015); Strickland v. Washington, 466 U.S. 668, 687–88\n(1984) (interpreting right to “effective assistance of\ncounsel”). In addition, if the court requires specialized or\ntechnical knowledge to understand Robles’ assertions, the\nparties can submit expert testimony. See, e.g., Nat’l Fed’n\nof the Blind v. Lamone, 813 F.3d 494, 501–02 (4th Cir. 2016)\n(relying on credited expert testimony on security risks\nassociated with “online ballot marking tool,” which the court\nheld was a “reasonable modification” to make absentee\nvoting accessible to blind voters); cf. Strong v. Valdez Fine\nFoods, 724 F.3d 1042, 1046–47 (9th Cir. 2013) (holding that\nexpert testimony is not required to understand plaintiff’s\nstraightforward ADA claim about physical barriers).\nWhether Domino’s website and app are effective means of\ncommunication is a fact-based inquiry within a court’s\ncompetency.\n\n Thus, we reverse the district court’s reliance on the\nprimary jurisdiction doctrine. Rather than promote\n\f ROBLES V. DOMINO’S PIZZA 25\n\nefficiency—the deciding factor in whether to invoke primary\njurisdiction—the district court’s ruling unduly delays the\nresolution of an issue that a court can decide. See Astiana,\n783 F.3d at 760–62.\n\nIV. CONCLUSION\n\n We express no opinion about whether Domino’s website\nor app comply with the ADA. We leave it to the district\ncourt, after discovery, to decide in the first instance whether\nDomino’s website and app provide the blind with effective\ncommunication and full and equal enjoyment of its products\nand services as the ADA mandates. 11\n\n REVERSED AND REMANDED.\n\n\n\n\n 11\n We also reverse the dismissal of Robles’ UCRA claims and\nremand for proceedings consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358835/", "author_raw": "OWENS, Circuit Judge:"}]}	PAUL J WATFORD	JOHN B OWENS	JENNIFER G ZIPPS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581582/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Guillermo Robles v. Dominos Pizza LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GUILLERMO ROBLES, an individual, No. 17-55504\n Plaintiff-Appellant,\n D.C. No.\n v. 2:16-cv-06599-\n SJO-FFM\n DOMINO’S PIZZA, LLC, a limited\n liability corporation,\n Defendant-Appellee. OPINION\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n S. James Otero, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Pasadena, California\n\n Filed January 15, 2019\n\n Before: Paul J. Watford and John B. Owens, Circuit\n Judges, and Jennifer G. Zipps, * District Judge.\n\n Opinion by Judge Owens\n\n\n\n \n The Honorable Jennifer G. Zipps, United States District Judge for\nthe District of Arizona, sitting by designation.\n\f2 ROBLES V. DOMINO’S PIZZA\n\n SUMMARY \n\n\n Americans with Disabilities Act\n\n The panel reversed the district court’s dismissal of an\naction under Title III of the Americans with Disabilities Act\nand California’s Unruh Civil Rights Act, alleging that\nDomino’s Pizza’s website and mobile application were not\nfully accessible to a blind or visually impaired person.\n\n The panel held that the ADA applied to Domino’s\nwebsite and app because the Act mandates that places of\npublic accommodation, like Domino’s, provide auxiliary\naids and services to make visual materials available to\nindividuals who are blind. Even though customers primarily\naccessed the website and app away from Domino’s physical\nrestaurants, the panel stated that the ADA applies to the\nservices of a public accommodation, not services in a place\nof public accommodation. The panel stated that the website\nand app connected customers to the goods and services of\nDomino’s physical restaurants.\n\n The panel held that imposing liability on Domino’s\nunder the ADA would not violate the company’s Fourteenth\nAmendment right to due process. The panel held that the\nstatute was not impermissibly vague, and Domino’s had\nreceived fair notice that its website and app must comply\nwith the ADA. Further, the plaintiff did not seek to impose\nliability on Domino’s for failure to comply with the Web\nContent Accessibility Guidelines 2.0, private industry\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ROBLES V. DOMINO’S PIZZA 3\n\nstandards for website accessibility. Rather, an order\nrequiring compliance with WCAG 2.0 was a possible\nequitable remedy. Finally, the lack of specific regulations,\nnot yet promulgated by the Department of Justice, did not\neliminate Domino’s statutory duty.\n\n The panel held that the district court erred in invoking\nthe prudential doctrine of primary jurisdiction, which allows\ncourts to stay proceedings or to dismiss a complaint without\nprejudice pending the resolution of an issue within the\nspecial competence of an administrative agency. The panel\nreasoned that the DOJ was aware of the issue, and its\nwithdrawal of an Advanced Notice of Proposed Rulemaking\nmeant that undue delay was inevitable. The delay was\nneedless because the application of the ADA to the facts of\nthis case was well within the district court’s competence.\nThe panel remanded the case to the district court.\n\n\n COUNSEL\n\nJoseph R. Manning (argued) and Michael J. Manning,\nManning Law APC, Newport Beach, California, for\nPlaintiff-Appellant.\n\nGregory Francis Hurley (argued) and Bradley J. Leimkuhler,\nSheppard Mullin Richter & Hampton LLP, Costa Mesa,\nCalifornia, for Defendant-Appellee.\n\nJessica Paulie Weber (argued) and Eve L. Hill, Brown\nGoldstein & Levy LLP, Baltimore, Maryland, for Amici\nCuriae National Federation of the Blind, American Council\nof the Blind, American Foundation for the Blind,\nAssociation of Late Deafened Adults, California Council of\nthe Blind, California Foundation for Independent Living\n\f4 ROBLES V. DOMINO’S PIZZA\n\nCenters, Disability Rights Advocates, Disability Rights\nCalifornia, Disability Rights Education & Defense Fund,\nNational Association of the Deaf, National Disability Rights\nNetwork, National Federation of the Blind of California,\nWashington Lawyers’ Committee for Civil Rights and\nUrban Affairs, and World Institute on Disability.\n\nStephanie N. Moot and Carol C. Lumpkin, K&L Gates LLP,\nMiami, Florida; Martin S. Kaufman, Executive VP and\nGeneral Counsel, Atlantic Legal Foundation, Harrison, New\nYork; for Amicus Curiae The Atlantic Legal Foundation.\n\nStephanie Martz, National Retail Federation, Washington,\nD.C., for Amicus Curiae National Retail Federation.\n\nKathleen McGuigan and Deborah White, Retail Litigation\nCenter, Inc., Arlington, Virginia, for Amicus Curiae Retail\nLitigation Center, Inc.\n\nFelicia Watson and Jeffrey B. Augello, National Association\nof Home Builders of the United States, Washington, D.C.,\nfor Amicus Curiae National Association of Home Builders\nof the United States.\n\nJanet Galeria and Warren Postman, U.S. Chamber Litigation\nCenter, Washington, D.C., for Amicus Curiae Chamber of\nCommerce of the United States of America.\n\nAngelo I. Amador, Restaurant Law Center, Washington,\nD.C., for Amicus Curiae Restaurant Law Center.\n\nElizabeth Milito, Karen R. Harned, National Federation of\nIndependent Business Small Business Legal Center,\nWashington, D.C., for Amicus Curiae National Federation\nof Independent Business Small Business Legal Center.\n\f ROBLES V. DOMINO’S PIZZA 5\n\nChristine Mott, International Council of Shopping Centers,\nNew York, New York, for Amicus Curiae International\nCouncil of Shopping Centers.\n\nJustin Vermuth, American Resort Development Association,\nWashington, D.C., for Amicus Curiae American Resort\nDevelopment Association.\n\nMary Caroline Miller, Kevin W. Shaughnessy, and Joyce\nAckerbaum Cox, Baker & Hostetler LLP, Orlando, Florida;\nJohn B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio; for\nAmici Curiae Restaurant Law Center, American Bankers\nAssociation, American Hotel & Lodging Association,\nAmerican Resort Development Association, Asian\nAmerican Hotel Owners Association, Chamber of\nCommerce of the United States of America, International\nCouncil of Shopping Centers, International Franchise\nAssociation, National Association of Convenience Stores,\nNational Association of Home Builders of the United States,\nNational Association of Realtors, National Association of\nTheater Owners, National Federation of Independent\nBusiness Small Business Legal Center, National\nMultifamily Housing Council, National Retail Federation,\nRetail Litigation Center.\n\f6 ROBLES V. DOMINO’S PIZZA\n\n OPINION\n\nOWENS, Circuit Judge:\n\n Plaintiff Guillermo Robles, a blind man, appeals from\nthe district court’s dismissal of his complaint alleging\nviolations of the Americans with Disabilities Act, 42 U.S.C.\n§ 12101, and California’s Unruh Civil Rights Act (UCRA),\nCalifornia Civil Code § 51. Robles alleged that Defendant\nDomino’s Pizza, LLC, (Domino’s) failed to design,\nconstruct, maintain, and operate its website and mobile\napplication (app) to be fully accessible to him. We have\njurisdiction under 28 U.S.C. § 1291, and we reverse and\nremand.\n\nI. FACTUAL AND PROCEDURAL BACKGROUND\n\n Robles accesses the internet using screen-reading\nsoftware, which vocalizes visual information on websites.\nDomino’s operates a website and app that allows customers\nto order pizzas and other products for at-home delivery or\nin-store pickup, and receive exclusive discounts.\n\n On at least two occasions, Robles unsuccessfully\nattempted to order online a customized pizza from a nearby\nDomino’s. Robles contends that he could not order the pizza\nbecause Domino’s failed to design its website and app so his\nsoftware could read them.\n\n In September 2016, Robles filed this suit seeking\ndamages and injunctive relief based on Domino’s failure to\n“design, construct, maintain, and operate its [website and\napp] to be fully accessible to and independently usable by\nMr. Robles and other blind or visually-impaired people,” in\nviolation of the ADA and UCRA. Robles sought a\n“permanent injunction requiring Defendant to . . . comply\n\f ROBLES V. DOMINO’S PIZZA 7\n\nwith [Web Content Accessibility Guidelines (WCAG) 2.0]\nfor its website and Mobile App.” 1 Domino’s moved for\nsummary judgment on the grounds that (1) the ADA did not\ncover Domino’s online offerings; and (2) applying the ADA\nto the website or app violated Domino’s due process rights.\nDomino’s alternatively invoked the primary jurisdiction\ndoctrine, which permits a court to dismiss a complaint\npending the resolution of an issue before an administrative\nagency with special competence. See Clark v. Time Warner\nCable, 523 F.3d 1110, 1114 (9th Cir. 2008) (defining\nprimary jurisdiction doctrine).\n\n The district court first held that Title III of the ADA\napplied to Domino’s website and app. The court highlighted\nthe ADA’s “auxiliary aids and services” section, 42 U.S.C.\n§ 12182(b)(2)(A)(iii), which requires that covered entities\nprovide auxiliary aids and services to ensure that individuals\nwith disabilities are not excluded from accessing the services\nof a “place of public accommodation”—in this case, from\nusing the website or app to order goods from Domino’s\nphysical restaurants.\n\n\n\n\n 1\n WCAG 2.0 guidelines are private industry standards for website\naccessibility developed by technology and accessibility experts. WCAG\n2.0 guidelines have been widely adopted, including by federal agencies,\nwhich conform their public-facing, electronic content to WCAG 2.0\nlevel A and level AA Success Criteria. 36 C.F.R. pt. 1194, app. A\n(2017). In addition, the Department of Transportation requires airline\nwebsites to adopt these accessibility standards. See 14 C.F.R. § 382.43\n(2013). Notably, the Department of Justice has required ADA-covered\nentities to comply with WCAG 2.0 level AA (which incorporates level\nA) in many consent decrees and settlement agreements in which the\nUnited States has been a party.\n\f8 ROBLES V. DOMINO’S PIZZA\n\n The district court then addressed Domino’s argument\nthat applying the ADA to its website and app violated its due\nprocess rights because the Department of Justice (DOJ) had\nfailed to provide helpful guidance, despite announcing its\nintention to do so in 2010. 2 See Nondiscrimination on the\nBasis of Disability, 75 Fed. Reg. 43460-01 (July 26, 2010)\n(issuing Advance Notice of Proposed Rulemaking\n(ANPRM) to “explor[e] what regulatory guidance [DOJ] can\npropose to make clear to entities covered by the ADA their\nobligations to make their Web sites accessible”). 3\n\n The district court, relying heavily on United States v.\nAMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),\nconcluded that imposing the WCAG 2.0 standards on\nDomino’s “without specifying a particular level of success\ncriteria and without the DOJ offering meaningful guidance\non this topic . . . fl[ew] in the face of due process.” 4 The\n 2\n DOJ is charged with issuing regulations concerning the\nimplementation of the ADA. See 42 U.S.C. § 12186(b) (“[T]he Attorney\nGeneral shall issue regulations in an accessible format to carry out the\nprovisions of this subchapter . . . .”); Bragdon v. Abbott, 524 U.S. 624,\n646 (1998) (noting that DOJ is “the agency directed by Congress to issue\nimplementing regulations, to render technical assistance explaining the\nresponsibilities of covered individuals and institutions, and to enforce\nTitle III in court”) (internal citations omitted).\n\n 3\n We recognize that DOJ withdrew its ANPRM on December 26,\n2017, so the district court did not have the benefit of considering this\nwithdrawal when it issued its decision on March 20, 2017. See\nNondiscrimination on the Basis of Disability, 82 Fed. Reg. 60932-01\n(Dec. 26, 2017).\n\n 4\n Only after Robles filed this suit, Domino’s website and app began\ndisplaying a telephone number that customers using screen-reading\nsoftware could dial to receive assistance. The district court noted that\nRobles had “failed to articulate why [Domino’s] provision of a telephone\nhotline for the visually impaired . . . does not fall within the range of\n\f ROBLES V. DOMINO’S PIZZA 9\n\ndistrict court held that DOJ “regulations and technical\nassistance are necessary for the Court to determine what\nobligations a regulated individual or institution must abide\nby in order to comply with Title III.” In the district court’s\nview, therefore, only the long-awaited regulations from DOJ\ncould cure the due process concerns, so it had no choice but\nto invoke the primary jurisdiction doctrine. The district\ncourt granted Domino’s motion to dismiss without\nprejudice, and this appeal followed.\n\nII. STANDARD OF REVIEW\n\n We review de novo the district court’s interpretation and\nconstruction of a federal statute—here, the court’s\napplication of the ADA to websites and apps. See ASARCO,\nLLC v. Celanese Chem. Co., 792 F.3d 1203, 1208 (9th Cir.\n2015). As the constitutionality of a statute or regulation is a\nquestion of law, we also review de novo the district court’s\nholding that applying the ADA to websites and apps would\nviolate due process. See Az. Libertarian Party v. Reagan,\n798 F.3d 723, 728 (9th Cir. 2015); Preminger v. Peake,\n552 F.3d 757, 765 n.7 (9th Cir. 2008). Finally, we review\nde novo the court’s invocation of the primary jurisdiction\ndoctrine. See Reid v. Johnson & Johnson, 780 F.3d 952, 958\n(9th Cir. 2015).\n\n\n\npermissible options afforded under the ADA.” However, the district\ncourt did not reach whether a genuine issue of material fact existed as to\nthe telephone hotline’s compliance with the ADA, including whether the\nhotline guaranteed full and equal enjoyment and “protect[ed] the privacy\nand independence of the individual with a disability.” 28 C.F.R.\n§ 36.303(c)(1)(ii) (2017). We believe that the mere presence of the\nphone number, without discovery on its effectiveness, is insufficient to\ngrant summary judgment in favor of Domino’s.\n\f10 ROBLES V. DOMINO’S PIZZA\n\nIII. DISCUSSION\n\n This appeal presents three questions. First, whether the\nADA applies to Domino’s website and app. Second, if so,\nwhether that holding raises due process concerns. Third,\nwhether a federal court should invoke the primary\njurisdiction doctrine because DOJ has failed to provide\nmeaningful guidance on how to make websites and apps\ncomply with the ADA.\n\n A. The ADA’s Application to Domino’s Website and\n App\n\n The ADA “as a whole is intended ‘to provide a clear and\ncomprehensive national mandate for the elimination of\ndiscrimination against individuals with disabilities.’”\nOlmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999)\n(quoting 42 U.S.C. § 12101(b)(1)). Title III of the ADA\nadvances that goal by providing that “[n]o individual shall\nbe discriminated against on the basis of disability in the full\nand equal enjoyment of the goods, services, facilities,\nprivileges, advantages, or accommodations of any place of\npublic accommodation by any person who owns, leases (or\nleases to), or operates a place of public accommodation.”\n42 U.S.C. § 12182(a). We agree with the district court that\nthe ADA applies to Domino’s website and app.\n\n The ADA expressly provides that a place of public\naccommodation, like Domino’s, engages in unlawful\ndiscrimination if it fails to “take such steps as may be\nnecessary to ensure that no individual with a disability is\nexcluded, denied services, segregated or otherwise treated\ndifferently than other individuals because of the absence of\n\f ROBLES V. DOMINO’S PIZZA 11\n\nauxiliary aids and services.” 5 Id. § 12182(b)(2)(A)(iii).\nDOJ regulations require that a public accommodation\n“furnish appropriate auxiliary aids and services where\nnecessary to ensure effective communication with\nindividuals with disabilities.” 28 C.F.R. § 36.303(c)(1)\n(emphasis added); see Bragdon, 524 U.S. at 646 (holding\nthat DOJ’s administrative guidance on ADA compliance is\nentitled to deference). And DOJ defines “auxiliary aids and\nservices” to include “accessible electronic and information\ntechnology” or “other effective methods of making visually\ndelivered materials available to individuals who are blind or\nhave low vision.” 28 C.F.R. § 36.303(b)(2).\n\n Therefore, the ADA mandates that places of public\naccommodation, like Domino’s, provide auxiliary aids and\nservices to make visual materials available to individuals\nwho are blind. See id. § 36.303. This requirement applies\nto Domino’s website and app, even though customers\npredominantly access them away from the physical\nrestaurant: “The statute applies to the services of a place of\npublic accommodation, not services in a place of public\naccommodation. To limit the ADA to discrimination in the\nprovision of services occurring on the premises of a public\naccommodation would contradict the plain language of the\nstatute.” Nat’l Fed’n of the Blind v. Target Corp., 452 F.\n\n\n\n 5\n The ADA exempts covered entities from the requirement to\nprovide auxiliary aids and services where compliance would\n“fundamentally alter the nature of the good, service, facility, privilege,\nadvantage, or accommodation being offered or would result in an undue\nburden.” 42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R.\n§ 36.303(a). At this stage, Domino’s does not argue that making its\nwebsite or app accessible to blind people would fundamentally alter the\nnature of its offerings or be an undue burden.\n\f12 ROBLES V. DOMINO’S PIZZA\n\nSupp. 2d 946, 953 (N.D. Cal. 2006) (emphasis in original)\n(internal citation omitted).\n\n The alleged inaccessibility of Domino’s website and app\nimpedes access to the goods and services of its physical\npizza franchises—which are places of public\naccommodation. See 42 U.S.C. § 12181(7)(B) (listing a\nrestaurant as a covered “public accommodation”).\nCustomers use the website and app to locate a nearby\nDomino’s restaurant and order pizzas for at-home delivery\nor in-store pickup. This nexus between Domino’s website\nand app and physical restaurants—which Domino’s does not\ncontest—is critical to our analysis. 6\n\n In Weyer v. Twentieth Century Fox Film Corp., our court\nexamined whether an insurance company that administered\nan allegedly discriminatory employer-provided insurance\npolicy was a covered “place of public accommodation.”\n198 F.3d 1104, 1113–14 (9th Cir. 2000). We concluded that\nit was not. Because the ADA only covers “actual, physical\nplaces where goods or services are open to the public, and\nplaces where the public gets those goods or services,” there\nhad to be “some connection between the good or service\ncomplained of and an actual physical place.” Id. at 1114.\nWhile the insurance company had a physical office, the\ninsurance policy at issue did not concern accessibility, or\n“such matters as ramps and elevators so that disabled people\ncan get to the office.” Id. And although it was administered\nby the insurance company, the employer-provided policy\n\n\n\n 6\n We need not decide whether the ADA covers the websites or apps\nof a physical place of public accommodation where their inaccessibility\ndoes not impede access to the goods and services of a physical location.\n\f ROBLES V. DOMINO’S PIZZA 13\n\nwas not a good offered by the insurance company’s physical\noffice. Id. at 1115.\n\n Unlike the insurance policy in Weyer, Domino’s website\nand app facilitate access to the goods and services of a place\nof public accommodation—Domino’s physical restaurants.\nThey are two of the primary (and heavily advertised) means\nof ordering Domino’s products to be picked up at or\ndelivered from Domino’s restaurants. We agree with the\ndistrict court in this case—and the many other district courts\nthat have confronted this issue in similar contexts 7—that the\nADA applies to Domino’s website and app, which connect\ncustomers to the goods and services of Domino’s physical\nrestaurants.\n\n B. Due Process\n\n The second question we address is whether applying the\nADA to Domino’s website and app raises due process\nconcerns. Despite concluding that the ADA covered\nDomino’s website and app, the district court held that\n\n\n\n\n 7\n See, e.g., Robles v. Yum! Brands, Inc., 2018 WL 566781, at 4\n(C.D. Cal. Jan. 24, 2018); Rios v. N.Y. & Co., Inc., 2017 WL 5564530,\nat 3 (C.D. Cal. Nov. 16, 2017); Reed v. CVS Pharmacy, Inc., 2017 WL\n4457508, at 3 (C.D. Cal. Oct. 3, 2017); Gorecki v. Hobby Lobby Stores,\nInc., 2017 WL 2957736, at 3–4 (C.D. Cal. June 15, 2017); Target,\n452 F. Supp. 2d at 953; Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d\n1368, 1375–76 (S.D. Fla. 2018); Castillo v. Jo-Ann Stores, LLC, 286 F.\nSupp. 3d 870, 881 (N.D. Ohio 2018); Gil v. Winn-Dixie Stores, Inc.,\n257 F. Supp. 3d 1340, 1348–49 (S.D. Fla. 2017), appeal docketed, No.\n17-13467 (11th Cir. Aug. 1, 2017).\n\f14 ROBLES V. DOMINO’S PIZZA\n\nimposing liability on Domino’s here would violate its\nFourteenth Amendment right to due process. 8\n\n As a preliminary matter, we hold that Domino’s has\nreceived fair notice that its website and app must comply\nwith the ADA. An impermissibly vague statute violates due\nprocess because it does not “give fair notice of conduct that\nis forbidden or required.” F.C.C. v. Fox Television Stations,\nInc., 567 U.S. 239, 253 (2012). However, “[a] statute is\nvague not when it prohibits conduct according ‘to an\nimprecise but comprehensible normative standard, but rather\nin the sense that no standard of conduct is specified at all.’”\nBotosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir.\n2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611,\n614 (1971)). Moreover, “[b]ecause the ADA is a statute that\nregulates commercial conduct, it is reviewed under a less\nstringent standard of specificity” than, for example, criminal\nlaws or restrictions on speech. Id. (citing Vill. of Hoffman\nEstates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,\n498–99 (1982)). 9 Therefore, the ADA would be vague “only\n\n 8\n The district court also held (in error) that Robles conceded\nDomino’s due process argument by not squarely addressing it at the\nmotion to dismiss stage. The relevant issue here is whether Domino’s\nwebsite and app comply with the ADA. Domino’s due process argument\nis a defense to that issue. Domino’s cites no authority holding that a\nplaintiff’s failure to respond to a defense waives the plaintiff’s cause of\naction (here, the ADA). Regardless, “an issue will generally be deemed\nwaived on appeal if the argument was not raised sufficiently for the trial\ncourt to rule on it.” In re Mercury Interactive Corp. Secs. Litig., 618 F.3d\n988, 992 (9th Cir. 2010) (internal quotation marks omitted). Here, the\nparties raised the matter sufficiently for the district court to dedicate four\npages to this issue, and Robles did not waive his ability to respond to\nDomino’s due process argument.\n 9\n In Village of Hoffman Estates, the Supreme Court explained: “The\ndegree of vagueness that the Constitution tolerates—as well as the\n\f ROBLES V. DOMINO’S PIZZA 15\n\nif it is so indefinite in its terms that it fails to articulate\ncomprehensible standards to which a person’s conduct must\nconform.” Id.\n\n The ADA articulates comprehensible standards to which\nDomino’s conduct must conform. Since its enactment in\n1990, the ADA has clearly stated that covered entities must\nprovide “full and equal enjoyment of the[ir] goods, services,\nfacilities, privileges, advantages, or accommodations” to\npeople with disabilities, 42 U.S.C. § 12182(a), and must\n“ensure that no individual with a disability is excluded,\ndenied services, segregated or otherwise treated differently\nthan other individuals because of the absence of auxiliary\naids and services,” id. § 12182(b)(2)(A)(iii). DOJ has\nclarified that these provisions require “effective\ncommunication.” 28 C.F.R. § 36.303(c)(1). Moreover,\nsince it announced its position in 1996, DOJ has “repeatedly\naffirmed the application of [T]itle III to Web sites of public\naccommodations.” 75 Fed. Reg. 43460-01, 43464 (July 26,\n2010). Thus, at least since 1996, Domino’s has been on\nnotice that its online offerings must effectively communicate\nwith its disabled customers and facilitate “full and equal\nenjoyment” of Domino’s goods and services. See 42 U.S.C.\n§ 12182(a); see also Gorecki, 2017 WL 2957736, at 5\n(“Title III’s general prohibition of discrimination on the\nbasis of disability, and its requirements to provide\nappropriate auxiliary aids and services, where necessary to\nensure effective communication, place an affirmative\n\n\nrelative importance of fair notice and fair enforcement—depends in part\non the nature of the enactment. Thus, economic regulation is subject to\na less strict vagueness test because its subject matter is often more\nnarrow, and because businesses, which face economic demands to plan\nbehavior carefully, can be expected to consult relevant legislation in\nadvance of action.” 455 U.S. at 498 (internal footnotes omitted).\n\f16 ROBLES V. DOMINO’S PIZZA\n\nobligation on places that meet the definition of a public\naccommodation to ensure disabled individuals have as full\nand equal enjoyment of their websites as non-disabled\nindividuals.”).\n\n However, the heart of Domino’s due process argument\nis not that Domino’s lacked fair notice that its website and\napp must comply with the ADA. Instead, Domino’s argues\nthat imposing liability would violate due process because\n(1) Robles seeks to impose liability on Domino’s for failing\nto comply with WCAG 2.0, which are private, unenforceable\nguidelines; and (2) DOJ has not issued regulations\nspecifying technical standards for compliance, so Domino’s\ndoes not have “fair notice of what specifically the ADA\nrequires companies to do in order to make their websites\naccessible.”\n\n 1. Robles Does Not Seek to Impose Liability\n Based on WCAG 2.0\n\n First, we address Domino’s argument that Robles seeks\nto impose liability based on Domino’s failure to comply with\nWCAG 2.0. Relying heavily on our decision in AMC,\nDomino’s argues that this would violate due process because\nDomino’s has not received fair notice of its obligation to\ncomply with the WCAG 2.0 guidelines. Yet, as explained\nbelow, Domino’s overstates both the holding of AMC and\nthe significance of WCAG 2.0 in this case.\n\n AMC concerned movie-theater accessibility for\nwheelchair-bound patrons. See 549 F.3d at 762. Our court\nreversed an injunction ordering that AMC’s stadium-style\ntheaters (many built before 1998) undergo a massive\nreconfiguration to comply with DOJ’s interpretation of an\nambiguous accessibility regulation (finalized in 1998). Id.\nat 768–70. Our court held that requiring AMC to\n\f ROBLES V. DOMINO’S PIZZA 17\n\nreconfigure theaters built before DOJ announced its\ninterpretation of the ambiguous regulation would violate due\nprocess. Id.\n\n This case does not present the fair notice concerns of\nAMC, and the district court erred in equating the relevance\nof WCAG 2.0 with the regulation at issue in AMC. Here,\nRobles does not seek to impose liability based on Domino’s\nfailure to comply with WCAG 2.0. Rather, Robles merely\nargues—and we agree—that the district court can order\ncompliance with WCAG 2.0 as an equitable remedy if, after\ndiscovery, the website and app fail to satisfy the ADA. At\nthis stage, Robles only seeks to impose liability on Domino’s\nfor failing to comply with § 12182 of the ADA, not for the\nfailure to comply with a regulation or guideline of which\nDomino’s has not received fair notice. See Reed, 2017 WL\n4457508, at 5 (“[A]t this point in the litigation . . . Plaintiff\ndoes not seek to require [Defendant] to adopt any particular\nset of guidelines. Plaintiff simply alleges that her difficulty\naccessing [Defendant’s] website and mobile app violate the\nADA.”).\n\n Also unlike in AMC—where the overbroad injunction\nwould have required AMC to retrofit theaters built before it\nreceived fair notice of DOJ’s position—Domino’s does not\nallege that its website or app were created prior to (or never\nupdated since) 1996, when DOJ announced its position that\nthe ADA applies to websites of covered entities. Further, the\nregulation at issue in AMC was ambiguous. See 549 F.3d at\n764–67 (summarizing circuit split on how to interpret this\nregulation, which all courts agreed was ambiguous). It was\nunfair to expect AMC to have guessed which interpretation\nto follow when circuits were in disagreement and DOJ had\nnot announced its position. Id. at 768. By contrast, the\nstatutory provisions of § 12182 at issue here—requiring\n\f18 ROBLES V. DOMINO’S PIZZA\n\n“auxiliary aids and services” and “full and equal\nenjoyment”—are flexible, but not ambiguous, and have been\ninterpreted many times by federal courts. 10 Finally, in AMC,\nour court limited its due process holding to the district\ncourt’s remedy without disturbing liability. Id. at 768–70.\nHere, the district court dismissed the case at the pleading\nstage before Robles could conduct discovery and establish\nliability. Even if due process concerns akin to those in AMC\nwere present here, further consideration of them “would be\npremature because due process constrains the remedies that\nmay be imposed,” Fortyune v. City of Lomita, 766 F.3d\n1098, 1106 n.13 (9th Cir. 2014) (citing AMC, 549 F.3d at\n768–70) (emphasis added), and not the initial question of\nADA compliance. See Reed 2017 WL 4457508, at 4\n(“[W]hether or not [defendant’s] digital offerings must\ncomply with [WCAG], or any other set of noncompulsory\nguidelines, is a question of remedy, not liability.”) (emphasis\nin original).\n\n\n\n\n 10\n See, e.g., Baughman v. Walt Disney World Co., 685 F.3d 1131,\n1135 (9th Cir. 2012) (holding that, to provide “full and equal\nenjoyment,” public accommodations must “consider[] how their\nfacilities are used by non-disabled guests and then take reasonable steps\nto provide disabled guests with a like experience”); Fortyune v.\nAmerican Multi-Cinema, 364 F.3d 1075, 1085 (9th Cir. 2004)\n(interpreting “full and equal enjoyment” to require theater to provide\nwheelchair seating and adjacent seat for plaintiff’s wife); see also, e.g.,\nMcGann v. Cinemark, 873 F.3d 218, 223 (3d Cir. 2017) (holding that\ntheater’s failure to provide deaf patron with sign language interpreter—\nan auxiliary aid or service—excluded him from services); Argenyi v.\nCreighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) (holding that\nuniversity must provide reasonable auxiliary aids and services to\npartially deaf medical student to afford him opportunity equal to his\nnondisabled peers).\n\f ROBLES V. DOMINO’S PIZZA 19\n\n 2. The Lack of Specific Regulations Does Not\n Eliminate Domino’s Statutory Duty\n\n Second, we address Domino’s argument that imposing\nliability here would violate due process because Domino’s\nlacked “fair notice of what specifically the ADA requires\ncompanies to do in order to make their websites accessible.”\nIn other words, Domino’s argues it “needs consistent\nstandards when it designs its website.” While we understand\nwhy Domino’s wants DOJ to issue specific guidelines for\nwebsite and app accessibility, the Constitution only requires\nthat Domino’s receive fair notice of its legal duties, not a\nblueprint for compliance with its statutory obligations. And,\nas one district court noted, the lack of specific instructions\nfrom DOJ might be purposeful:\n\n The DOJ’s position that the ADA applies to\n websites being clear, it is no matter that the\n ADA and the DOJ fail to describe exactly\n how any given website must be made\n accessible to people with visual impairments.\n Indeed, this is often the case with the ADA’s\n requirements, because the ADA and its\n implementing regulations are intended to\n give public accommodations maximum\n flexibility in meeting the statute’s\n requirements. This flexibility is a feature, not\n a bug, and certainly not a violation of due\n process.\n\nReed, 2017 WL 4457508, at 5. A desire to maintain this\nflexibility might explain why DOJ withdrew its ANPRM\nrelated to website accessibility and “continue[s] to assess\nwhether specific technical standards are necessary and\nappropriate to assist covered entities with complying with\n\f20 ROBLES V. DOMINO’S PIZZA\n\nthe ADA.” 82 Fed. Reg. 60932-01 (Dec. 26, 2017)\n(emphasis added).\n\n And in any case, our precedent is clear that, “as a general\nmatter, the lack of specific regulations cannot eliminate a\nstatutory obligation.” City of Lomita, 766 F.3d at 1102; see\nalso Gorecki, 2017 WL 2957736, at 4 (“The lack of specific\nregulations [regarding website accessibility] does not\neliminate [defendant’s] obligation to comply with the ADA\nor excuse its failure to comply with the mandates of the\nADA.”).\n\n For example, in City of Lomita, the defendant-city\nargued that although existing Title II regulations broadly\nprohibited it from discriminating in its services, requiring the\ncity to provide accessible on-street parking would violate its\ndue process rights absent specific regulatory guidance.\n766 F.3d at 1102. Our court rejected that argument, and held\nthat the ADA’s regulations did not “suggest[] that when\ntechnical specifications do not exist for a particular type of\nfacility, public entities have no accessibility obligations.”\nId. at 1103 (citing Barden v. City of Sacramento, 292 F.3d\n1073, 1076–78 (9th Cir. 2002) (holding that Title II requires\npublic entities to maintain accessible public sidewalks,\nnotwithstanding absence of implementing regulations\naddressing sidewalks)).\n\n Similarly, in Kirola v. City & County of San Francisco,\nwe explained that even if there were no technical\naccessibility requirements for buildings and facilities under\nTitle II of the ADA, “[p]ublic entities would not suddenly\nfind themselves free to ignore access concerns when altering\nor building new rights-of-way, parks, and playgrounds.”\n860 F.3d 1164, 1180 (9th Cir. 2017). Instead, our court\napplied Title II’s “readily accessible” and “usable” standards\nto determine whether the city violated the ADA. Id.\n\f ROBLES V. DOMINO’S PIZZA 21\n\nAlthough DOJ guidance might have been helpful, “[g]iving\ncontent to general standards is foundational to the judicial\nfunction.” Id. (citing Marbury v. Madison, 5 U.S. 137, 177\n(1803)).\n\n Moreover, the possibility that an agency might issue\ntechnical standards in the future does not create a due\nprocess problem. In Reich v. Montana Sulphur & Chemical\nCompany, our court held that although the Secretary of\nLabor would likely promulgate specific standards for safe\nand healthy working conditions, these standards would only\n“amplify and augment” the existing statutory obligation to\nprovide a safe workspace and would not “displace” it.\n32 F.3d 440, 445 (9th Cir. 1994); cf. Or. Paralyzed Veterans\nof Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1132–33 (9th\nCir. 2003) (following DOJ’s interpretation of existing\nregulation, even though Access Board was addressing the\nspecific topic at issue through rulemaking). The same logic\napplies here.\n\n In sum, we conclude that the district court erred in\nholding that imposing liability in this case would violate\nDomino’s due process rights. Domino’s has received fair\nnotice that its website and app must provide effective\ncommunication and facilitate “full and equal enjoyment” of\nDomino’s goods and services to its customers who are\ndisabled. Our Constitution does not require that Congress or\nDOJ spell out exactly how Domino’s should fulfill this\nobligation.\n\n C. Primary Jurisdiction Doctrine\n\n Finally, we address the primary jurisdiction doctrine,\nwhich “allows courts to stay proceedings or to dismiss a\ncomplaint without prejudice pending the resolution of an\nissue within the special competence of an administrative\n\f22 ROBLES V. DOMINO’S PIZZA\n\nagency.” Clark, 523 F.3d at 1114. It is a prudential doctrine\nthat does not “implicate[] the subject matter jurisdiction of\nthe federal courts.” Astiana v. Hain Celestial Grp., Inc.,\n783 F.3d 753, 759 (9th Cir. 2015) (quoting Syntek\nSemiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d\n775, 780 (9th Cir. 2002)). Rather, it permits courts to\ndetermine “that an otherwise cognizable claim implicates\ntechnical and policy questions that should be addressed in\nthe first instance by the agency with regulatory authority\nover the relevant industry rather than by the judicial branch.”\nId. at 760 (quoting Clark, 523 F.3d at 1114).\n\n While “no fixed formula exists for applying the doctrine\nof primary jurisdiction,” we consider: “(1) the need to\nresolve an issue that (2) has been placed by Congress within\nthe jurisdiction of an administrative body having regulatory\nauthority (3) pursuant to a statute that subjects an industry or\nactivity to a comprehensive regulatory authority that\n(4) requires expertise or uniformity in administration.”\nDavel Commc’n, Inc. v. Qwest Corp., 460 F.3d 1075, 1086–\n87 (9th Cir. 2006); see also Astiana, 783 F.3d at 760 (same).\n\n Here, the district court erred in invoking primary\njurisdiction. The purpose of the doctrine is not to “secure\nexpert advice” from an agency “every time a court is\npresented with an issue conceivably within the agency’s\nambit.” Brown v. MCI WorldCom Network Servs., Inc.,\n277 F.3d 1166, 1172 (9th Cir. 2002); see also Astiana,\n783 F.3d at 760 (“Not every case that implicates the\nexpertise of federal agencies warrants invocation of primary\njurisdiction.”). Rather, “‘efficiency’ is the ‘deciding factor’\nin whether to invoke primary jurisdiction.” Astiana,\n783 F.3d at 760 (citation omitted). Our precedent is clear:\n\n [E]ven when agency expertise would be\n helpful, a court should not invoke primary\n\f ROBLES V. DOMINO’S PIZZA 23\n\n jurisdiction when the agency is aware of but\n has expressed no interest in the subject\n matter of the litigation. Similarly, primary\n jurisdiction is not required when a referral to\n the agency would significantly postpone a\n ruling that a court is otherwise competent to\n make.\n\nId. at 761 (emphases added). Both circumstances are present\nhere.\n\n First, DOJ is aware of the issue—it issued the ANPRM\nin 2010, 75 Fed. Reg. 43460-01 (July 26, 2010), and\nwithdrew it in 2017, 82 Fed. Reg. 60932-01 (Dec. 26, 2017).\nSecond, DOJ’s withdrawal means that the potential for\nundue delay is not just likely, but inevitable. Robles has no\nability to participate in an administrative hearing process\nwith remedies. See Arizona ex rel. Goddard v. Harkins\nAdmin. Servs., Inc., 2011 WL 13202686, at *3 (D. Az. Feb.\n8, 2011) (“[T]he DOJ does not have an administrative\nprocess in which these parties can directly participate to\nresolve their dispute. The absence of such an administrative\nprocess argues against referral to an agency under the\nprimary jurisdiction doctrine.”).\n\n Therefore, according to the district court, Robles cannot\nvindicate his statutory rights unless DOJ reopens and\ncompletes its rulemaking process. This would “needlessly\ndelay the resolution of” Robles’ claims and undercut\nefficiency, “the ‘deciding factor’ in whether to invoke\nprimary jurisdiction.” Astiana, 783 F.3d at 760 (citation\nomitted); see also Reid, 780 F.3d at 966–67 (declining to\ninvoke primary jurisdiction in part because “it has been over\na decade since the FDA indicated that it would issue a new\n[rule]”).\n\f24 ROBLES V. DOMINO’S PIZZA\n\n The delay is “needless” because the application of the\nADA to the facts of this case are well within the court’s\ncompetence. Properly framed, the issues for the district\ncourt to resolve on remand are whether Domino’s website\nand app provide the blind with auxiliary aids and services for\neffective communication and full and equal enjoyment of its\nproducts and services. Courts are perfectly capable of\ninterpreting the meaning of “equal” and “effective” and have\ndone so in a variety of contexts. See supra note 10\n(providing examples of circuit courts interpreting ADA’s\nrequirements of “full and equal enjoyment” and “auxiliary\naids and services” in non-website contexts); see also\nGeorgia v. Ashcroft, 539 U.S. 461, 462 (2003) (interpreting\n“effective exercise of the electoral franchise”), superseded\nby statute, 52 U.S.C. §§ 10304(b)(d), as recognized in Ala.\nLegislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1273\n(2015); Strickland v. Washington, 466 U.S. 668, 687–88\n(1984) (interpreting right to “effective assistance of\ncounsel”). In addition, if the court requires specialized or\ntechnical knowledge to understand Robles’ assertions, the\nparties can submit expert testimony. See, e.g., Nat’l Fed’n\nof the Blind v. Lamone, 813 F.3d 494, 501–02 (4th Cir. 2016)\n(relying on credited expert testimony on security risks\nassociated with “online ballot marking tool,” which the court\nheld was a “reasonable modification” to make absentee\nvoting accessible to blind voters); cf. Strong v. Valdez Fine\nFoods, 724 F.3d 1042, 1046–47 (9th Cir. 2013) (holding that\nexpert testimony is not required to understand plaintiff’s\nstraightforward ADA claim about physical barriers).\nWhether Domino’s website and app are effective means of\ncommunication is a fact-based inquiry within a court’s\ncompetency.\n\n Thus, we reverse the district court’s reliance on the\nprimary jurisdiction doctrine. Rather than promote\n\f ROBLES V. DOMINO’S PIZZA 25\n\nefficiency—the deciding factor in whether to invoke primary\njurisdiction—the district court’s ruling unduly delays the\nresolution of an issue that a court can decide. See Astiana,\n783 F.3d at 760–62.\n\nIV. CONCLUSION\n\n We express no opinion about whether Domino’s website\nor app comply with the ADA. We leave it to the district\ncourt, after discovery, to decide in the first instance whether\nDomino’s website and app provide the blind with effective\ncommunication and full and equal enjoyment of its products\nand services as the ADA mandates. 11\n\n REVERSED AND REMANDED.\n\n\n\n\n 11\n We also reverse the dismissal of Robles’ UCRA claims and\nremand for proceedings consistent with this opinion.\n[END_CASE]", "role": "user" } ]
4,581,583		Applied Underwriters, Inc. v. Larry Lichtenegger	2019-01-15	17-16815	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITERS, INC., a No. 17-16815\n Nebraska corporation,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02445-\n v. TLN-CKD\n\n LARRY J. LICHTENEGGER; J. DALE\n DEBBER; PROVIDENCE OPINION\n PUBLICATIONS, LLC, a California\n limited liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n Troy L. Nunley, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n SUMMARY \n\n\n Lanham Act / Civil Procedure\n\n The panel affirmed the district court’s dismissal of an\naction brought by a financial services company under the\nLanham Act.\n\n The panel held that the district court abused its discretion\nwhen it sanctioned the plaintiff and dismissed the case\npursuant to Federal Rule of Civil Procedure 41(b) absent an\norder requiring the plaintiff to file an amended complaint.\n\n The panel nonetheless affirmed the district court’s earlier\ndismissal for failure to state a claim under Rule 12(b)(6).\nThe panel concluded that defendants’ use of plaintiff’s\ntrademarks in the title of a webcast seminar and in\npromotional materials was a nominative fair use because\nplaintiff’s service was not readily identifiable without use of\nthe trademarks, defendants used only so much of the\ntrademarks as was reasonably necessary, and use of the\ntrademarks did not suggest sponsorship or endorsement.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 3\n\n COUNSEL\n\nKimberly A. Jansen (argued), Hinshaw & Culbertson LLP,\nChicago, Illinois; Mark Suri, Peter Felsenfeld, Travis Wall,\nand Spencer Y. Kook, Hinshaw & Culbertson LLP, Los\nAngeles, California; for Plaintiff-Appellant.\n\nDuffy Carolan (argued), Jassy Vick Carolan LLP, San\nFrancisco, California; Kevin L. Vick and Jean-Paul Jassy,\nJassy Vick Carolan LLP, Los Angeles, California; for\nDefendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n We are confronted with an appeal of a procedurally\ncurious nature. Plaintiff-Appellant Applied Underwriters,\nInc. (Plaintiff) appealed the district court’s dismissal of its\nclaims for trademark infringement and unfair competition,\non the apparent belief that the court dismissed the complaint\npursuant to Federal Rule of Civil Procedure 12(b)(6). When\nwe asked the district court to clarify its grounds for\ndismissal, however, it explained that it actually dismissed\nPlaintiff’s complaint as a sanction pursuant to Federal Rule\nof Civil Procedure 41(b).\n\f4 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Although we conclude that the district court abused its\ndiscretion when it sanctioned Plaintiff and dismissed the\ncase pursuant to Rule 41(b) absent an order requiring\nPlaintiff to file an amended complaint, we nevertheless\naffirm the district court’s earlier Rule 12(b)(6) dismissal\nbecause the use of Plaintiff’s trademarks by Defendants-\nAppellees Larry J. Lichtenegger, J. Dale Debber, and\nProvidence Publications, LLC (Defendants) constituted\nnominative fair use.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n Plaintiff is “a financial services company that provides\npayroll processing services and, through affiliated insurance\ncompanies, offers programs through which workers’\ncompensation insurance is offered and provided to\nemployers throughout the United States.” It began to use the\n“Applied Underwriters” mark in October 2001, and has\ncontinuously used the mark since. Beginning in October\n2002, it also began to use the “EquityComp” mark in\nconnection with its workers’ compensation insurance\nservices. The U.S. Patent and Trademark Office has issued\nPlaintiff five relevant trademark registrations: for the\n“Applied Underwriters” mark, the “EquityComp” mark, and\nthree stylized versions of these marks, two of which appear\nto depict a St. Bernard:\n\fAPPLIED UNDERWRITERS V. LICHTENEGGER 5\n\f6 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nIn its complaint, Plaintiff asserted that these registrations are\ncurrently in force and uncontestable, and that it\n“aggressively advertises and promotes its marks and its\nservices,” having “spent millions of dollars advertising”\nthem.\n\n Defendant Providence Publications, LLC publishes\nvarious online news sources, including “Workers’ Comp\nExecutive” (WCE). WCE features news reports and offers\nonline seminars, some of which feature Defendants\nLichtenegger and Debber.\n\n Plaintiff alleged that, beginning in November 2015,\nDefendants began offering a seminar (both online and on\nDVD) that “uses the Applied Underwriters and EquityComp\nmarks in the title of the webcast.” The marks were also\nfeatured in various promotional materials, including a\nwidely distributed email advertisement. Defendants used\nthese marks “without Applied Underwriters’ authority or\npermission and in reckless disregard of [its] federal\ntrademark registrations and its rights.” Plaintiff also claimed\nthat Defendants “specifically and intentionally target[ed]\ntheir marketing and advertising . . . to independent brokers\nand the business organizations that they serve who use\nPlaintiff’s services.” In its complaint, Plaintiff averred that\n“[a]s a result of the likelihood of confusion caused by\nDefendants’ unauthorized use of” the marks, “Defendants\nare able to attract customers who mistakenly believe that\nthey will attend a program sponsored or affiliated with\nApplied Underwriters,” leading to dilution of the marks.\n\nII. Procedural Background\n\n Plaintiff filed a complaint asserting causes of action for\nfederal trademark infringement and dilution, false\ndesignation of origin under the Lanham Act, and federal and\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 7\n\nstate unfair competition. The next day, Plaintiff filed a\nmotion for a temporary restraining order, which the district\ncourt denied.\n\n Defendants moved to dismiss under Rule 12(b)(6),\narguing that their use of Plaintiff’s marks was protected\nunder the First Amendment, constituted nominal fair use,\nand satisfied the statutory defenses to trademark dilution.\nDefendants also filed a request for judicial notice that the\ndistrict court granted in part and denied in part, taking\njudicial notice only of the DVD of the seminar. Plaintiff in\nturn filed an opposition to Defendants’ motion to dismiss,\naccompanied by a declaration and additional evidence not\nincluded in its complaint. 1\n\n On July 6, 2017, the district court granted Defendants’\nmotion to dismiss, concluding that “Defendants’ use of the\nTrademarks is nominative fair use.” At Plaintiff’s request,\nthe court granted leave to amend the complaint within\n30 days. The district court docket confirms that Plaintiff\nneither filed an amended complaint (timely or otherwise) nor\nannounced an intent not to do so. Consequently, on August\n10, 2017, the district court issued a minute order that read:\n“In light of Plaintiff’s failure to file an Amended Complaint\npursuant to the Court’s Order (ECF No. [31]), this case is\nhereby DISMISSED. CASE CLOSED.” The clerk of court\nsubsequently entered judgment “in accordance with the\nCourt’s Order filed on 8/10/2017.”\n\n\n 1\n Plaintiff did not seek judicial notice of this additional evidence and,\nas Defendants note, “the District Court did not cite or rely on this\nevidence in its ruling.” Because this evidence was not part of the\ncomplaint or submitted for judicial notice, we will disregard it at this\nstage. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),\noverruled on other grounds by Galbraith v. County of Santa Clara,\n307 F.3d 1119 (9th Cir. 2002).\n\f8 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n This appeal followed. In their briefs, Plaintiff and\nDefendants disputed whether the district court dismissed\nPlaintiff’s complaint pursuant to Rule 12(b)(6), in which\ncase we would review the sufficiency of the complaint de\nnovo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), or\nas a sanction under Rule 41(b), which we would review for\nabuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983,\n986 (9th Cir. 1999). To remedy this confusion, we remanded\n\n this case for the limited purpose of allowing\n the district court to clarify whether the\n complaint was dismissed as a sanction under\n Federal Rule of Civil Procedure 41 or for\n failure to state a claim under Rule 12(b)(6),\n and, if the final dismissal was intended as a\n sanction under Rule 41(b), to state the\n reasoning behind the selection of that\n sanction.\n\nBefore oral argument in this appeal, the district court\nresponded with a clarification order, in which it explained\nthat it dismissed Plaintiff’s complaint as a sanction pursuant\nto Rule 41(b), and analyzed the five pertinent factors as\nenumerated in Yourish. It concluded that “[t]hree of the five\nfactors strongly favored dismissal, and this Court dismissed\nthe case under Rule 41(b) as a sanction for failure to comply\nwith the Court’s order.”\n\n STANDARD OF REVIEW AND JURISDICTION\n\n “We review de novo a district court’s dismissal of a\ncomplaint under [Rule] 12(b)(6) for failure to state a claim,”\nStarr, 652 F.3d at 1205, and “[w]e review the district court’s\ndismissal of a complaint pursuant to Rule 41(b) for abuse of\ndiscretion,” Yourish, 191 F.3d at 986. We have jurisdiction\npursuant to 28 U.S.C. § 1291—regardless of the basis for the\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 9\n\ndistrict court’s dismissal of Plaintiff’s complaint, its entry of\njudgment constituted a final decision of the court. Cf. De Tie\nv. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)\n(“The dismissal of an action, even when it is without\nprejudice, is a final order.”).\n\n ANALYSIS\n\nI. Rule 41(b)\n\n Under Rule 41(b), “[i]f the plaintiff fails to prosecute or\nto comply with . . . a court order”—such as by failing to file\nan amended complaint after being ordered to do so—“a\ndefendant may move to dismiss the action or any claim\nagainst it. Unless the dismissal order states otherwise, [such]\na dismissal . . . operates as an adjudication on the merits.”\nFed. R. Civ. P. 41(b). We have noted that “[w]hen a district\ncourt dismisses an action because the plaintiff has not filed\nan amended complaint after being given leave to do so and\nhas not notified the court of his intention not to file an\namended complaint, we may deem the dismissal to be for\nfailure to comply with a court order based on Federal Rule\nof Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d\n1133, 1142 (9th Cir. 2017).\n\n In the order clarifying its dismissal of Plaintiff’s\ncomplaint, the district court analyzed the five factors that\nmust be considered before dismissing a case pursuant to\nRule 41(b): “(1) the public’s interest in expeditious\nresolution of litigation; (2) the court’s need to manage its\ndocket; (3) the risk of prejudice to the defendants; (4) the\npublic policy favoring disposition of cases on their merits;\nand (5) the availability of less drastic alternatives.” Yourish,\n191 F.3d at 990 (quoting Hernandez v. City of El Monte,\n\f10 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n138 F.3d 393, 399 (9th Cir. 1998)). 2 However, the district\ncourt did not consider whether Rule 41(b) was even\napplicable in this case, given that Plaintiff was granted\nleave—not ordered—to amend its complaint. We hold that\nthe district court abused its discretion when it invoked Rule\n41(b) under these circumstances.\n\n We are not the first panel to address this question. See,\ne.g., Yourish, 191 F.3d at 986 n.4 (“This approach is\nsomewhat problematic because a plaintiff’s failure to amend\na complaint is not easily described as disobeying a court\norder because the plaintiff has the right simply to allow the\ncomplaint to be dismissed.”). Decades ago, the Fifth Circuit\nconsidered a similar factual scenario and concluded that\n\n [h]ad the District Judge intended what he\n wrote literally—that the action was being\n dismissed because the March order had been\n “disobeyed”—he would have been guilty of\n an abuse of his Rule 41(b) discretion to\n dismiss. Dismissal of a case for disobedience\n of a court order is an exceedingly harsh\n sanction which should be imposed only in\n extreme cases, and then only after\n exploration of lesser sanctions. Failure to\n amend a complaint after it has been dismissed\n with leave to amend is not such an extreme\n\n\n 2\n “Although it is preferred, it is not required that the district court\nmake explicit findings in order to show that it has considered these\nfactors and we may review the record independently to determine if the\ndistrict court has abused its discretion.” Yourish, 191 F.3d at 990\n(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).\nAccordingly, the fact that the district court initially dismissed the\ncomplaint without any explicit analysis of these five factors did not\nconstitute an abuse of discretion.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 11\n\n case of disobedience, if it is disobedience at\n all.\n\nMann v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,\n488 F.2d 75, 76 (5th Cir. 1973) (per curiam) (citations\nomitted). More recently, dissenting in Brown v. Rawson-\nNeal Psychiatric Hospital, Judge Graber concluded that a\ndistrict court’s dismissal with prejudice under Rule 41(b)\n“was an abuse of discretion for the simple reason that, under\nour precedents, Plaintiff did not fail to comply with a court\norder.” 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J.,\ndissenting). Judge Graber noted that our precedent makes\nclear that “[w]hen a district court requires a plaintiff to file\nan amended complaint, the court may dismiss the case under\nRule 41(b) if the plaintiff fails to follow the requirement.”\nId.; see also Edwards v. Marin Park, Inc., 356 F.3d 1058,\n1065 (9th Cir. 2004) (“The failure of the plaintiff eventually\nto respond to the court’s ultimatum—either by amending the\ncomplaint or by indicating to the court that it will not do so—\nis properly met with the sanction of a Rule 41(b) dismissal.”\n(emphasis added)); Yourish, 191 F.3d at 986 n.2 (noting that\nthe district court order stated that an “[a]mended complaint\nshall be filed within 60 days” (emphasis added)); Ferdik v.\nBonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that\nthe court “ordered” and “required” the filing of a second\namended complaint). However, in Brown, as in this case,\n\n the district court did not require Plaintiff to\n file an amended complaint, nor did the court\n require in the alternative that Plaintiff file an\n amended complaint or some other specified\n document. The court’s order denying\n Plaintiff’s motion for reconsideration merely\n granted leave to amend, with permissive text\n allowing Plaintiff to amend or not . . . .\n\f12 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Given the court’s failure to cite Rule 41(b),\n the permissive wording of its orders, and\n Plaintiff’s desire to obtain appellate review of\n the Rule 12(b)(6) dismissal as discussed in\n the motion for reconsideration, he\n understandably hoped for a dismissal, which\n he reasonably thought would be under Rule\n 12(b)(6). After all, the district court never\n ordered Plaintiff to file an amended\n complaint, as the courts had in Yourish or\n Ferdik. Leave to amend was granted; failure\n to amend did not constitute noncompliance\n with a court order. Simply put, there was no\n “ultimatum” within the meaning of our\n precedents, and so the district court abused its\n discretion in dismissing Plaintiff’s federal\n claims under Rule 41(b).\n\n840 F.3d at 1151 (Graber, J., dissenting). 3\n\n We agree with Judge Graber’s reasoning. By its plain\ntext, a Rule 41(b) dismissal under these circumstances\nrequires “a court order” with which an offending plaintiff\nfailed to comply. Fed. R. Civ. P. 41(b). 4 Here, there was no\n\n 3\n Notably, the Brown majority did not address this issue and instead\nbased its holding on the plaintiff’s failure to raise Rule 41(b) in his\nopening brief. See 840 F.3d at 1148–49. Thus, we are not bound by that\ncase to treat a permissive invitation to amend as a court order requiring\namendment.\n 4\n Rule 41(b) also permits dismissal when a plaintiff fails to prosecute\nits case or comply with the Federal Rules of Civil Procedure. See Fed.\nR. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with\nthese rules or a court order, a defendant may move to dismiss the action\nor any claim against it.”). However, these alternative bases for dismissal\nare not at issue in this appeal because the district court specifically stated\nthat its dismissal was based on Plaintiff’s failure to follow its court order.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 13\n\nsuch order—the district court did not require that Plaintiff\nfile an amended complaint following the initial Rule\n12(b)(6) dismissal. Instead, the court’s order concluded as\nfollows: “Plaintiff is GRANTED leave to amend within\nthirty (30) days of this Order.” The district court did not\nmandate the filing of an amended complaint, and it did not\nindicate that failure to do so would result in dismissal of the\ncomplaint pursuant to Rule 41(b). See Oliva v. Sullivan,\n958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an\nobligation to warn the plaintiff that dismissal is imminent.”).\n\n The district court’s dismissal under Rule 41(b) required\nnoncompliance with a court order. A grant of leave to amend\nis not an order to amend. Therefore, Rule 41(b) did not apply\nhere, and the district court’s dismissal on this ground\nconstituted an abuse of discretion.\n\nII. How to Proceed?\n\n Having concluded that the district court abused its\ndiscretion when it dismissed Plaintiff’s complaint as a\nsanction pursuant to Rule 41(b), we must now determine the\nproper course of action moving forward.\n\n One option is to remand. Upon remand, the district court\nwould presumably either again dismiss Plaintiff’s complaint\nunder Rule 12(b)(6), based on reasoning articulated in its\nprior order, or again grant Plaintiff leave to amend—an\nopportunity of which Plaintiff would not avail itself, given\nits stated desire to appeal the district court’s original Rule\n12(b)(6) dismissal. Remand would therefore require the\nparties to engage in additional and redundant briefing, and\nwould add years to their litigation. Nothing substantive\nwould be gained, and “remand . . . would be an unnecessary\nwaste of judicial and litigant resources.” O’Reilly v. Bd. of\nAppeals, 942 F.2d 281, 284 (4th Cir. 1991).\n\f14 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n We conclude that remand would not serve the interest of\njudicial economy, and fortunately, it is not required. As the\nSupreme Court explained,\n\n [I]n reviewing the decision of a lower court,\n it must be affirmed if the result is correct\n ‘although the lower court relied upon a wrong\n ground or gave a wrong reason.’ The reason\n for this rule is obvious. It would be wasteful\n to send a case back to a lower court to\n reinstate a decision which it had already\n made but which the appellate court\n concluded should properly be based on\n another ground within the power of the\n appellate court to formulate.\n\nSEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (citation\nomitted) (quoting Helvering v. Gowran, 302 U.S. 238, 245\n(1937)); see also Alcaraz v. Block, 746 F.2d 593, 602 (9th\nCir. 1984) (“We will affirm the district court’s correct legal\nresults, even if reached for the wrong reasons.”). Here, we\nhave before us the correct result; as discussed below,\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use, and thus dismissal was required. We also have the\ndistrict court’s analysis in its Rule 12(b)(6) order, which still\nstands and has not been altered or retracted. Therefore, we\nconclude that dismissal of Plaintiff’s complaint was the\ncorrect legal result, even if the district court reached it for\nthe wrong reason—as a sanction under Rule 41(b)—instead\nof the correct reason—as a dismissal under Rule 12(b)(6).\nAccordingly, we do not need to remand the action, and will\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 15\n\ninstead proceed with analysis of the district court’s dismissal\npursuant to Rule 12(b)(6). 5\n\nIII. Rule 12(b)(6)\n\n Defendants maintain, as the district court concluded, that\ntheir use of Plaintiff’s marks constituted nominative fair use.\nWe agree.\n\n Pursuant to this defense, the “nominative use of a mark—\nwhere the only word reasonably available to describe a\nparticular thing is pressed into service—lies outside the\nstrictures of trademark law: Because it does not implicate the\nsource-identification function that is the purpose of\ntrademark, it does not constitute unfair competition.” New\nKids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,\n308 (9th Cir. 1992). 6 New Kids held that\n\n\n 5\n We note that this approach is consistent with the basic principles\nof finality that undergird our appellate jurisdiction. The district court’s\nRule 12(b)(6) order dispensed with all of Plaintiff’s claims, and hence\nwas “a full adjudication of the issues.” Nat’l Distrib. Agency v.\nNationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). If not for\nthe court’s grant of leave to amend—which, again, Plaintiff has made\nclear it had no intention of undertaking—the dismissal would have\n“clearly evidence[d] the judge’s intention that it be the court’s final act\nin the matter.” Id. (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir.\n1990)). Accordingly, we are satisfied that the Rule 12(b)(6) order is\nsufficiently final for our review, since Plaintiff’s refusal to amend\nensures that the decision was not “tentative, informal or incomplete,” and\nis thus reviewable. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,\n1101 (9th Cir. 1998) (quoting Cohen v. Beneficial Indus. Loan Corp.,\n337 U.S. 541, 546 (1949)).\n 6\n Accordingly, although Plaintiff’s complaint included various\ncauses of action—including trademark infringement and dilution and\nfederal and state unfair competition—the nominative fair use defense\napplied to all of its claims. See Playboy Enters., Inc. v. Welles, 279 F.3d\n\f16 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n a commercial user is entitled to a nominative\n fair use defense provided he meets the\n following three requirements: First, the\n product or service in question must be one not\n readily identifiable without use of the\n trademark; second, only so much of the mark\n or marks may be used as is reasonably\n necessary to identify the product or service;\n and third, the user must do nothing that\n would, in conjunction with the mark, suggest\n sponsorship or endorsement by the trademark\n holder.\n\nId. (footnote omitted). If the nominative use of a mark\nsatisfies these three factors, then there is no infringement;\n“[i]f the nominative use does not satisfy all the New Kids\nfactors, the district court may order defendants to modify\ntheir use of the mark so that all three factors are satisfied.”\nToyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171,\n1176 (9th Cir. 2010).\n\n Although Plaintiff’s primary contention is that\nDefendants’ use of its marks failed to satisfy the third New\nKids factor, it challenges the district court’s conclusions as\nto all three. We will thus consider each factor in turn.\n\n\n796, 806 (9th Cir. 2002) (“Uses that do not create an improper\nassociation between a mark and a new product but merely identify the\ntrademark holder’s products should be excepted from the reach of the\nanti-dilution statute.”); Cleary v. News Corp., 30 F.3d 1255, 1262–63\n(9th Cir. 1994) (“This Circuit has consistently held that state common\nlaw claims of unfair competition and actions pursuant to California\nBusiness and Professions Code § 17200 are ‘substantially congruent’ to\nclaims made under the Lanham Act.” (quoting Acad. of Motion Picture\nArts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1457\n(9th Cir. 1991))).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 17\n\n A. Whether Plaintiff’s Service Was Readily\n Identifiable Without Use of the Trademarks\n\n Plaintiff contends that “Defendants did not need to use\nPlaintiff’s trademarks to identify their Program.” It\nconcedes that “the Program apparently addresses Plaintiff’s\nworkers’ compensation product in particular,” but\nnonetheless argues that “Defendants could have come up\nwith another readily understood generic or descriptive\nname.”\n\n The email attached to the complaint demonstrates that\nDefendants’ seminar exclusively critiqued Plaintiff’s\nEquityComp service. The title of the seminar was “Applied\nUnderwriters’ EquityComp® Program Like it, Leave it, or\nLet it be?” and its subtitle read, “Learn the best strategies for\nselling, competing with, or helping a prospect out of\nEquityComp® mid-term.” We have previously determined\nthat a descriptive alternative—such as Plaintiff’s proposed\n“Risk Sharing Workers’ Comp Program” or “Captive\nWorkers’ Comp Arrangement Program”—need not be\nemployed where use of a mark is necessary to refer to a\nspecific brand or product. As we explained in Toyota Motor\nSales,\n\n Toyota claims . . . the Tabaris could have\n used a domain name that did not contain the\n Lexus mark. It’s true they could have used\n some other domain name like\n autobroker.com or fastimports.com, or have\n used the text of their website to explain their\n business. But it’s enough to satisfy our test\n for necessity that the Tabaris needed to\n communicate that they specialize in Lexus\n vehicles, and using the Lexus mark in their\n domain names accomplished this goal.\n\f18 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n610 F.3d at 1180; see also Playboy Enters., Inc. v. Welles,\n279 F.3d 796, 802 (9th Cir. 2002) (“[T]here is no other way\nthat Ms. Welles can identify or describe herself and her\nservices without venturing into absurd descriptive phrases.\nTo describe herself as the ‘nude model selected by Mr.\nHefner’s magazine as its number-one prototypical woman\nfor the year 1981’ would be impractical as well as ineffectual\nin identifying Terri Welles to the public.”). 7\n\n Such is the case here. The seminar did not discuss\nworkers’ compensation programs generally, but rather\nPlaintiff’s specific offering. Therefore, Defendants “needed\nto communicate” that they critiqued the EquityComp\nprogram, and so using the mark in the title and description\nof the program “accomplished this goal.” Toyota Motor\nSales, 610 F.3d at 1180.\n\n In its reply brief, Plaintiff makes the argument that, even\nif the use of the “EquityComp” mark satisfied the first New\nKids factor, the use of the “Applied Underwriters” mark did\nnot. Plaintiff suggests that “[t]he addition of the ‘Applied\nUnderwriters’ mark does nothing to identify the content of\nthe seminar but instead serves solely to create the impression\n\n 7\n Plaintiff suggests that “Defendants’ attempt to apply Welles to their\nseminar is circular” because “[o]n one hand, defendants insist that they\ncould not possibly have described their seminar without using plaintiff’s\nmark,” but on the other hand, “if a more generic descriptor could not be\nused to describe the seminar because the subject of the seminar [was]\nlimited to EquityComp®, then the suggestion of sponsorship is\nreinforced. After all, a reasonably prudent consumer could assume that\na seminar focused on a single product is sponsored or endorsed by the\nentity selling that product.” However, this reasoning would essentially\nvitiate the nominative fair use defense, because it suggests that any time\nthe first New Kids factor is satisfied—in other words, when use of a mark\nis needed for identification purposes—then the third factor could never\nbe satisfied, because endorsement would always be presupposed in such\ncases.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 19\n\nthat Applied Underwriters is sponsoring or endorsing a\nseminar about its own EquityComp® product.” It relies on\nPlayboy Enterprises, in which we determined that while use\nof the trademarked phrase “Playboy Playmate of the Year\n1981” was permissible because it was needed for\nidentification purposes, use of another potentially protected\nphrase—“PMOY ‘81”—was not. 279 F.3d at 804. We\nreasoned that “[t]he repeated depiction of ‘PMOY ‘81’ is not\nnecessary to describe Welles. ‘Playboy Playmate of the\nYear 1981’ is quite adequate.” Id. Here, similarly, Plaintiff\nsuggests that the “EquityComp” mark identified the service\nthat Defendants analyzed in their seminar, and thus the\n“Applied Underwriters” mark did not serve that function.\nBut this argument falls short. Defendants’ use of the\n“Applied Underwriters” mark was not necessarily redundant\nbecause it was used to identify the company that offered\nEquityComp—a company that was itself critiqued in the\nseminar. We therefore find this case distinguishable from\nPlayboy Enterprises, where use of the “PMOY ‘81” mark\nserved no additional identification purpose.\n\n Accordingly, because both marks were needed to\nidentify the service (and company) that Defendants analyzed\nin their seminar, the district court correctly determined that\nthe first New Kids factor was satisfied.\n\n B. Whether Defendants Used Only So Much of the\n Trademarks As Was Reasonably Necessary\n\n Plaintiff argues that Defendants’ use of its marks failed\nthe second factor because the email attached to the complaint\nfeatured several uses of both marks. That argument relies on\na misunderstanding of this factor. The second New Kids\nfactor does not implicate the number of uses of a mark, but\nrather the nature of the uses. In clarifying it, we explained\nthat “a soft drink competitor would be entitled to compare\n\f20 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nits product to Coca-Cola or Coke, but would not be entitled\nto use Coca-Cola’s distinctive lettering.” New Kids,\n971 F.2d at 308 n.7; see also Playboy Enters., 279 F.3d at\n802 (“Welles’ banner advertisements and headlines satisfy\nthis element because they use only the trademarked words,\nnot the font or symbols associated with the trademarks.”);\nVolkswagenwerk Aktiengesellschaft v. Church, 411 F.2d\n350, 352 (9th Cir. 1969) (noting that defendant “did not use\nVolkswagen’s distinctive lettering style or color scheme, nor\ndid he display the encircled ‘VW’ emblem”); cf. Toyota\nMotor Sales, 610 F.3d at 1181 (“Toyota suggests that use of\nthe stylized Lexus mark and ‘Lexus L’ logo was more use of\nthe mark than necessary and suggested sponsorship or\nendorsement by Toyota. This is true: The Tabaris could\nadequately communicate their message without using the\nvisual trappings of the Lexus brand.”). Our case law\ndemonstrates that analysis of this factor should focus not on\nthe number of uses of Plaintiffs’ marks, but on whether\nDefendants used more of each individual mark than was\nnecessary in terms of font and stylization.\n\n Here, Defendants correctly note that the email “did not\nuse any part of Plaintiff’s service marks, the distinctive\nlettering or design; rather they used only the term ‘Applied\nUnderwriters’ and ‘EquityComp’ in describing its webcast.”\nThe email did not contain, for example, the illustration of a\nSt. Bernard or the stylized lettering of Plaintiff’s registered\nmarks. It did not even employ the distinctive small-caps\nrendering of the “Applied Underwriters” and “EquityComp”\nmarks. Defendants used only the words themselves, which\nwere, as discussed above, necessary to identify Plaintiff’s\nproduct. Therefore, the second New Kids factor was\nsatisfied.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 21\n\n C. Whether Use of the Trademarks Suggested\n Sponsorship or Endorsement\n\n Plaintiff asserts that, “[s]imply put, Defendants’\nadvertising creates confusion.”\n\n At the outset, it claims that “[t]he district court erred by\nignoring Plaintiff’s evidence of actual confusion in its Order,\nwhich nowhere mentions the actual confusion.” However,\nin its complaint, Plaintiff pleaded no such facts of actual\nconfusion. Instead, the complaint stated only that\n“Defendants’ improper use of the APPLIED\nUNDERWRITERS IP has caused, and will continue to\ncause, damaging and actual confusion among the public.”\nThat conclusory statement constituted the only evidence of\nconfusion contained in the complaint, and at no other point\ndid Plaintiff plead facts suggesting that use of its marks led\nconsumers to assume that it sponsored or endorsed\nDefendants’ seminar. 8\n\n Plaintiff also notes that Defendants employed the ®\nregistration symbol in conjunction with their uses of the\n“Applied Underwriters” and “EquityComp” marks, which it\nclaims “makes the use of the trademark look more official or\nauthorized, because one would expect that the trademark\nowner or its authorized users would use the registration\nsymbol ®, not unauthorized users.” This is not a particularly\ncompelling argument. Although Defendants did use the ®\nsymbol, the email attached to the complaint clarified that\n 8\n In its opposition to Defendants’ motion to dismiss, Plaintiff\nreferenced a “confused potential customer” who reached out to it.\nHowever, that allegation was not included in the complaint, and so it\ncannot be considered. See Arpin v. Santa Clara Valley Transp. Agency,\n261 F.3d 912, 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be\nconsidered in ruling on a motion to dismiss.”).\n\f22 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n“EquityComp is the registered trademark of Applied\nUnderwriters, Inc.” 9 Moreover, in the body of the email (and\non the DVD cover), the title of the seminar—which did\nfeature both the “Applied Underwriters” and “EquityComp”\nmarks—was in regular font beneath a stylized logo for\nWCE:\n\n\n\n\nThis further suggested that it was WCE—not Plaintiff—that\nsponsored the seminar, which discounts the possibility of\nany confusion.\n\n Furthermore, Defendants correctly argue that any\nlikelihood of confusion is implausible due to the content of\n\n 9\n At least one district court has dismissed a trademark infringement\nclaim under similar circumstances. See Architectural Mailboxes, LLC v.\nEpoch Design, LLC, No. 10cv974 DMS (CAB), 2011 WL 1630809, at\n3 (S.D. Cal. Apr. 28, 2011) (“[T]he exhibits attached to the Complaint\nlead to the same conclusion, namely that Plaintiff has failed to allege\nsufficient facts to demonstrate a likelihood of confusion. The excerpts\nfrom Defendant’s website clearly identify Plaintiff as the manufacturer\nof the Oasis Jr. mailbox. The website even goes so far as to state,\n‘Oasis® is a registered trademark of Architectural Mailboxes.’” (citation\nomitted)).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 23\n\nthe email and the seminar itself. The text of the email\nreferred to EquityComp as a “sophisticated yet controversial\nprogram,” and Lichtenegger was billed as a lawyer who “for\n15 years has specialized in Investment and Commercial\nFraud recovery” and “represents a panoply of employers vs\nApplied and is well versed in their math and how their\nprogram works.” Debber, for his part, was credited as the\nperson “who broke the recent spate of stories about Applied\nUnderwriters’ EquityComp Program. Only that other mild\nmannered reporter, Clark Kent, exceeds Dale’s commitment\nto ‘Truth, Justice and the American Way.’” The seminar’s\nsubtitle advertised that users can “[l]earn the best strategies\nfor . . . helping a prospect out of EquityComp® mid-term,”\nand a reasonable consumer in this context would surely\nunderstand that Plaintiff would not be in the business of\nhelping customers out of its programs. 10\n\n We have held that criticism of a product tends to negate\nthe possibility of confusion as to sponsorship and\nendorsement. See New Kids, 971 F.2d at 308–09\n(“[N]othing in the announcements suggests joint\nsponsorship or endorsement by the New Kids. The USA\nToday announcement implies quite the contrary by asking\nwhether the New Kids might be ‘a turn off.’”). 11 Here, it\n\n 10\n Additionally, the list of questions that the seminar purportedly\nanswered included several that Plaintiff would be unlikely to field, such\nas “If you have a client in the program who is unhappy, should you get\nthem out and if so, how to know when?” and “How to compete against\nthe program—at the start and mid-term.”\n 11\n District courts have reached similar conclusions. See, e.g., 1800\nGET THIN, LLC v. Hiltzik, No. CV11-00505 ODW (PJWx), 2011 WL\n3206486, at 3 (C.D. Cal. July 25, 2011) (determining on motion to\ndismiss that “Defendants have not done anything that would suggest\nPlaintiff has sponsored or endorsed Defendants’ use of Plaintiff’s\nclaimed trademark because the articles and comments . . . do not portray\n\f24 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nwas clear from the text of the email that the seminar was a\ncritique of Plaintiff’s program, and it is simply not plausible\nthat it could have been construed as anything else.\n\n It is true, as Plaintiff notes, that “[t]he existence of\nconsumer confusion is a fact-intensive analysis that does not\nlend itself to a motion to dismiss.” See, e.g., Williams v.\nGerber Prods. Co., 552 F.3d 934, 938–39 (9th Cir. 2008).\nEven so, based on the critical nature of the presentation, the\ndisclaimer included in the text, and the fact that Defendants\nadvertised the seminar under the WCE banner, we cannot\nconclude that a “reasonably prudent consumer” in the\nrelevant marketplace, Toyota Motor Sales, 610 F.3d at 1176,\ncould have interpreted Defendants’ seminar has being\nendorsed or sponsored by Plaintiff. The complaint contained\nonly scant, conclusory allegations of consumer confusion,\nwhich, even when considered in the light most favorable to\nPlaintiff, were belied by the allegedly infringing email\nattached to the complaint, which demonstrated nominative\nfair use. Although Plaintiff introduced additional evidence\nthat might change this conclusion in its opposition to\nDefendants’ motion to dismiss, those additional facts cannot\nbe considered because they were not included in the\noperative pleading. The third New Kids factor was therefore\nsatisfied.\n\n\n\n\nPlaintiff in a positive light”); Patmont Motor Werks, Inc. v. Gateway\nMarine, Inc., No. C 96-2703 TEH, 1997 WL 811770, at *4 (N.D. Cal.\nDec. 18, 1997) (“The third and final requirement is met because nothing\nin Anthony DeBartolo’s website could possibly be construed to indicate\nPatmont’s sponsorship or endorsement. Indeed, the Court would find\nincredible any argument to the contrary given the website’s\ndisparagement of Go-Peds as unsafe and of Patmont management as\ncriminally anti-competitive.”).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 25\n\n D. Summation\n\n Although it is a “rare situation in which granting a\nmotion to dismiss is appropriate” when a case involves\nquestions of consumer confusion, Williams, 552 F.3d at 939,\nthe district court properly concluded that Plaintiff failed to\nstate claims for which relief could be granted because, on the\nface of the complaint, it was clear that Defendants’ alleged\ninfringement constituted nominative fair use.\n\n CONCLUSION\n\n We conclude that the district court abused its discretion\nwhen it dismissed Plaintiff’s complaint as a sanction\npursuant to Rule 41(b) without actually ordering Plaintiff to\namend its complaint. However, we also conclude that\ndismissal was nevertheless appropriate, because\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use. Accordingly, we AFFIRM the district court’s\ndismissal of Plaintiff’s complaint.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358836/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581583/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Applied Underwriters, Inc. v. Larry Lichtenegger\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITERS, INC., a No. 17-16815\n Nebraska corporation,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02445-\n v. TLN-CKD\n\n LARRY J. LICHTENEGGER; J. DALE\n DEBBER; PROVIDENCE OPINION\n PUBLICATIONS, LLC, a California\n limited liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n Troy L. Nunley, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n SUMMARY \n\n\n Lanham Act / Civil Procedure\n\n The panel affirmed the district court’s dismissal of an\naction brought by a financial services company under the\nLanham Act.\n\n The panel held that the district court abused its discretion\nwhen it sanctioned the plaintiff and dismissed the case\npursuant to Federal Rule of Civil Procedure 41(b) absent an\norder requiring the plaintiff to file an amended complaint.\n\n The panel nonetheless affirmed the district court’s earlier\ndismissal for failure to state a claim under Rule 12(b)(6).\nThe panel concluded that defendants’ use of plaintiff’s\ntrademarks in the title of a webcast seminar and in\npromotional materials was a nominative fair use because\nplaintiff’s service was not readily identifiable without use of\nthe trademarks, defendants used only so much of the\ntrademarks as was reasonably necessary, and use of the\ntrademarks did not suggest sponsorship or endorsement.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 3\n\n COUNSEL\n\nKimberly A. Jansen (argued), Hinshaw & Culbertson LLP,\nChicago, Illinois; Mark Suri, Peter Felsenfeld, Travis Wall,\nand Spencer Y. Kook, Hinshaw & Culbertson LLP, Los\nAngeles, California; for Plaintiff-Appellant.\n\nDuffy Carolan (argued), Jassy Vick Carolan LLP, San\nFrancisco, California; Kevin L. Vick and Jean-Paul Jassy,\nJassy Vick Carolan LLP, Los Angeles, California; for\nDefendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n We are confronted with an appeal of a procedurally\ncurious nature. Plaintiff-Appellant Applied Underwriters,\nInc. (Plaintiff) appealed the district court’s dismissal of its\nclaims for trademark infringement and unfair competition,\non the apparent belief that the court dismissed the complaint\npursuant to Federal Rule of Civil Procedure 12(b)(6). When\nwe asked the district court to clarify its grounds for\ndismissal, however, it explained that it actually dismissed\nPlaintiff’s complaint as a sanction pursuant to Federal Rule\nof Civil Procedure 41(b).\n\f4 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Although we conclude that the district court abused its\ndiscretion when it sanctioned Plaintiff and dismissed the\ncase pursuant to Rule 41(b) absent an order requiring\nPlaintiff to file an amended complaint, we nevertheless\naffirm the district court’s earlier Rule 12(b)(6) dismissal\nbecause the use of Plaintiff’s trademarks by Defendants-\nAppellees Larry J. Lichtenegger, J. Dale Debber, and\nProvidence Publications, LLC (Defendants) constituted\nnominative fair use.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n Plaintiff is “a financial services company that provides\npayroll processing services and, through affiliated insurance\ncompanies, offers programs through which workers’\ncompensation insurance is offered and provided to\nemployers throughout the United States.” It began to use the\n“Applied Underwriters” mark in October 2001, and has\ncontinuously used the mark since. Beginning in October\n2002, it also began to use the “EquityComp” mark in\nconnection with its workers’ compensation insurance\nservices. The U.S. Patent and Trademark Office has issued\nPlaintiff five relevant trademark registrations: for the\n“Applied Underwriters” mark, the “EquityComp” mark, and\nthree stylized versions of these marks, two of which appear\nto depict a St. Bernard:\n\fAPPLIED UNDERWRITERS V. LICHTENEGGER 5\n\f6 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nIn its complaint, Plaintiff asserted that these registrations are\ncurrently in force and uncontestable, and that it\n“aggressively advertises and promotes its marks and its\nservices,” having “spent millions of dollars advertising”\nthem.\n\n Defendant Providence Publications, LLC publishes\nvarious online news sources, including “Workers’ Comp\nExecutive” (WCE). WCE features news reports and offers\nonline seminars, some of which feature Defendants\nLichtenegger and Debber.\n\n Plaintiff alleged that, beginning in November 2015,\nDefendants began offering a seminar (both online and on\nDVD) that “uses the Applied Underwriters and EquityComp\nmarks in the title of the webcast.” The marks were also\nfeatured in various promotional materials, including a\nwidely distributed email advertisement. Defendants used\nthese marks “without Applied Underwriters’ authority or\npermission and in reckless disregard of [its] federal\ntrademark registrations and its rights.” Plaintiff also claimed\nthat Defendants “specifically and intentionally target[ed]\ntheir marketing and advertising . . . to independent brokers\nand the business organizations that they serve who use\nPlaintiff’s services.” In its complaint, Plaintiff averred that\n“[a]s a result of the likelihood of confusion caused by\nDefendants’ unauthorized use of” the marks, “Defendants\nare able to attract customers who mistakenly believe that\nthey will attend a program sponsored or affiliated with\nApplied Underwriters,” leading to dilution of the marks.\n\nII. Procedural Background\n\n Plaintiff filed a complaint asserting causes of action for\nfederal trademark infringement and dilution, false\ndesignation of origin under the Lanham Act, and federal and\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 7\n\nstate unfair competition. The next day, Plaintiff filed a\nmotion for a temporary restraining order, which the district\ncourt denied.\n\n Defendants moved to dismiss under Rule 12(b)(6),\narguing that their use of Plaintiff’s marks was protected\nunder the First Amendment, constituted nominal fair use,\nand satisfied the statutory defenses to trademark dilution.\nDefendants also filed a request for judicial notice that the\ndistrict court granted in part and denied in part, taking\njudicial notice only of the DVD of the seminar. Plaintiff in\nturn filed an opposition to Defendants’ motion to dismiss,\naccompanied by a declaration and additional evidence not\nincluded in its complaint. 1\n\n On July 6, 2017, the district court granted Defendants’\nmotion to dismiss, concluding that “Defendants’ use of the\nTrademarks is nominative fair use.” At Plaintiff’s request,\nthe court granted leave to amend the complaint within\n30 days. The district court docket confirms that Plaintiff\nneither filed an amended complaint (timely or otherwise) nor\nannounced an intent not to do so. Consequently, on August\n10, 2017, the district court issued a minute order that read:\n“In light of Plaintiff’s failure to file an Amended Complaint\npursuant to the Court’s Order (ECF No. [31]), this case is\nhereby DISMISSED. CASE CLOSED.” The clerk of court\nsubsequently entered judgment “in accordance with the\nCourt’s Order filed on 8/10/2017.”\n\n\n 1\n Plaintiff did not seek judicial notice of this additional evidence and,\nas Defendants note, “the District Court did not cite or rely on this\nevidence in its ruling.” Because this evidence was not part of the\ncomplaint or submitted for judicial notice, we will disregard it at this\nstage. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),\noverruled on other grounds by Galbraith v. County of Santa Clara,\n307 F.3d 1119 (9th Cir. 2002).\n\f8 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n This appeal followed. In their briefs, Plaintiff and\nDefendants disputed whether the district court dismissed\nPlaintiff’s complaint pursuant to Rule 12(b)(6), in which\ncase we would review the sufficiency of the complaint de\nnovo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), or\nas a sanction under Rule 41(b), which we would review for\nabuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983,\n986 (9th Cir. 1999). To remedy this confusion, we remanded\n\n this case for the limited purpose of allowing\n the district court to clarify whether the\n complaint was dismissed as a sanction under\n Federal Rule of Civil Procedure 41 or for\n failure to state a claim under Rule 12(b)(6),\n and, if the final dismissal was intended as a\n sanction under Rule 41(b), to state the\n reasoning behind the selection of that\n sanction.\n\nBefore oral argument in this appeal, the district court\nresponded with a clarification order, in which it explained\nthat it dismissed Plaintiff’s complaint as a sanction pursuant\nto Rule 41(b), and analyzed the five pertinent factors as\nenumerated in Yourish. It concluded that “[t]hree of the five\nfactors strongly favored dismissal, and this Court dismissed\nthe case under Rule 41(b) as a sanction for failure to comply\nwith the Court’s order.”\n\n STANDARD OF REVIEW AND JURISDICTION\n\n “We review de novo a district court’s dismissal of a\ncomplaint under [Rule] 12(b)(6) for failure to state a claim,”\nStarr, 652 F.3d at 1205, and “[w]e review the district court’s\ndismissal of a complaint pursuant to Rule 41(b) for abuse of\ndiscretion,” Yourish, 191 F.3d at 986. We have jurisdiction\npursuant to 28 U.S.C. § 1291—regardless of the basis for the\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 9\n\ndistrict court’s dismissal of Plaintiff’s complaint, its entry of\njudgment constituted a final decision of the court. Cf. De Tie\nv. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)\n(“The dismissal of an action, even when it is without\nprejudice, is a final order.”).\n\n ANALYSIS\n\nI. Rule 41(b)\n\n Under Rule 41(b), “[i]f the plaintiff fails to prosecute or\nto comply with . . . a court order”—such as by failing to file\nan amended complaint after being ordered to do so—“a\ndefendant may move to dismiss the action or any claim\nagainst it. Unless the dismissal order states otherwise, [such]\na dismissal . . . operates as an adjudication on the merits.”\nFed. R. Civ. P. 41(b). We have noted that “[w]hen a district\ncourt dismisses an action because the plaintiff has not filed\nan amended complaint after being given leave to do so and\nhas not notified the court of his intention not to file an\namended complaint, we may deem the dismissal to be for\nfailure to comply with a court order based on Federal Rule\nof Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d\n1133, 1142 (9th Cir. 2017).\n\n In the order clarifying its dismissal of Plaintiff’s\ncomplaint, the district court analyzed the five factors that\nmust be considered before dismissing a case pursuant to\nRule 41(b): “(1) the public’s interest in expeditious\nresolution of litigation; (2) the court’s need to manage its\ndocket; (3) the risk of prejudice to the defendants; (4) the\npublic policy favoring disposition of cases on their merits;\nand (5) the availability of less drastic alternatives.” Yourish,\n191 F.3d at 990 (quoting Hernandez v. City of El Monte,\n\f10 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n138 F.3d 393, 399 (9th Cir. 1998)). 2 However, the district\ncourt did not consider whether Rule 41(b) was even\napplicable in this case, given that Plaintiff was granted\nleave—not ordered—to amend its complaint. We hold that\nthe district court abused its discretion when it invoked Rule\n41(b) under these circumstances.\n\n We are not the first panel to address this question. See,\ne.g., Yourish, 191 F.3d at 986 n.4 (“This approach is\nsomewhat problematic because a plaintiff’s failure to amend\na complaint is not easily described as disobeying a court\norder because the plaintiff has the right simply to allow the\ncomplaint to be dismissed.”). Decades ago, the Fifth Circuit\nconsidered a similar factual scenario and concluded that\n\n [h]ad the District Judge intended what he\n wrote literally—that the action was being\n dismissed because the March order had been\n “disobeyed”—he would have been guilty of\n an abuse of his Rule 41(b) discretion to\n dismiss. Dismissal of a case for disobedience\n of a court order is an exceedingly harsh\n sanction which should be imposed only in\n extreme cases, and then only after\n exploration of lesser sanctions. Failure to\n amend a complaint after it has been dismissed\n with leave to amend is not such an extreme\n\n\n 2\n “Although it is preferred, it is not required that the district court\nmake explicit findings in order to show that it has considered these\nfactors and we may review the record independently to determine if the\ndistrict court has abused its discretion.” Yourish, 191 F.3d at 990\n(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).\nAccordingly, the fact that the district court initially dismissed the\ncomplaint without any explicit analysis of these five factors did not\nconstitute an abuse of discretion.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 11\n\n case of disobedience, if it is disobedience at\n all.\n\nMann v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,\n488 F.2d 75, 76 (5th Cir. 1973) (per curiam) (citations\nomitted). More recently, dissenting in Brown v. Rawson-\nNeal Psychiatric Hospital, Judge Graber concluded that a\ndistrict court’s dismissal with prejudice under Rule 41(b)\n“was an abuse of discretion for the simple reason that, under\nour precedents, Plaintiff did not fail to comply with a court\norder.” 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J.,\ndissenting). Judge Graber noted that our precedent makes\nclear that “[w]hen a district court requires a plaintiff to file\nan amended complaint, the court may dismiss the case under\nRule 41(b) if the plaintiff fails to follow the requirement.”\nId.; see also Edwards v. Marin Park, Inc., 356 F.3d 1058,\n1065 (9th Cir. 2004) (“The failure of the plaintiff eventually\nto respond to the court’s ultimatum—either by amending the\ncomplaint or by indicating to the court that it will not do so—\nis properly met with the sanction of a Rule 41(b) dismissal.”\n(emphasis added)); Yourish, 191 F.3d at 986 n.2 (noting that\nthe district court order stated that an “[a]mended complaint\nshall be filed within 60 days” (emphasis added)); Ferdik v.\nBonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that\nthe court “ordered” and “required” the filing of a second\namended complaint). However, in Brown, as in this case,\n\n the district court did not require Plaintiff to\n file an amended complaint, nor did the court\n require in the alternative that Plaintiff file an\n amended complaint or some other specified\n document. The court’s order denying\n Plaintiff’s motion for reconsideration merely\n granted leave to amend, with permissive text\n allowing Plaintiff to amend or not . . . .\n\f12 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Given the court’s failure to cite Rule 41(b),\n the permissive wording of its orders, and\n Plaintiff’s desire to obtain appellate review of\n the Rule 12(b)(6) dismissal as discussed in\n the motion for reconsideration, he\n understandably hoped for a dismissal, which\n he reasonably thought would be under Rule\n 12(b)(6). After all, the district court never\n ordered Plaintiff to file an amended\n complaint, as the courts had in Yourish or\n Ferdik. Leave to amend was granted; failure\n to amend did not constitute noncompliance\n with a court order. Simply put, there was no\n “ultimatum” within the meaning of our\n precedents, and so the district court abused its\n discretion in dismissing Plaintiff’s federal\n claims under Rule 41(b).\n\n840 F.3d at 1151 (Graber, J., dissenting). 3\n\n We agree with Judge Graber’s reasoning. By its plain\ntext, a Rule 41(b) dismissal under these circumstances\nrequires “a court order” with which an offending plaintiff\nfailed to comply. Fed. R. Civ. P. 41(b). 4 Here, there was no\n\n 3\n Notably, the Brown majority did not address this issue and instead\nbased its holding on the plaintiff’s failure to raise Rule 41(b) in his\nopening brief. See 840 F.3d at 1148–49. Thus, we are not bound by that\ncase to treat a permissive invitation to amend as a court order requiring\namendment.\n 4\n Rule 41(b) also permits dismissal when a plaintiff fails to prosecute\nits case or comply with the Federal Rules of Civil Procedure. See Fed.\nR. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with\nthese rules or a court order, a defendant may move to dismiss the action\nor any claim against it.”). However, these alternative bases for dismissal\nare not at issue in this appeal because the district court specifically stated\nthat its dismissal was based on Plaintiff’s failure to follow its court order.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 13\n\nsuch order—the district court did not require that Plaintiff\nfile an amended complaint following the initial Rule\n12(b)(6) dismissal. Instead, the court’s order concluded as\nfollows: “Plaintiff is GRANTED leave to amend within\nthirty (30) days of this Order.” The district court did not\nmandate the filing of an amended complaint, and it did not\nindicate that failure to do so would result in dismissal of the\ncomplaint pursuant to Rule 41(b). See Oliva v. Sullivan,\n958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an\nobligation to warn the plaintiff that dismissal is imminent.”).\n\n The district court’s dismissal under Rule 41(b) required\nnoncompliance with a court order. A grant of leave to amend\nis not an order to amend. Therefore, Rule 41(b) did not apply\nhere, and the district court’s dismissal on this ground\nconstituted an abuse of discretion.\n\nII. How to Proceed?\n\n Having concluded that the district court abused its\ndiscretion when it dismissed Plaintiff’s complaint as a\nsanction pursuant to Rule 41(b), we must now determine the\nproper course of action moving forward.\n\n One option is to remand. Upon remand, the district court\nwould presumably either again dismiss Plaintiff’s complaint\nunder Rule 12(b)(6), based on reasoning articulated in its\nprior order, or again grant Plaintiff leave to amend—an\nopportunity of which Plaintiff would not avail itself, given\nits stated desire to appeal the district court’s original Rule\n12(b)(6) dismissal. Remand would therefore require the\nparties to engage in additional and redundant briefing, and\nwould add years to their litigation. Nothing substantive\nwould be gained, and “remand . . . would be an unnecessary\nwaste of judicial and litigant resources.” O’Reilly v. Bd. of\nAppeals, 942 F.2d 281, 284 (4th Cir. 1991).\n\f14 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n We conclude that remand would not serve the interest of\njudicial economy, and fortunately, it is not required. As the\nSupreme Court explained,\n\n [I]n reviewing the decision of a lower court,\n it must be affirmed if the result is correct\n ‘although the lower court relied upon a wrong\n ground or gave a wrong reason.’ The reason\n for this rule is obvious. It would be wasteful\n to send a case back to a lower court to\n reinstate a decision which it had already\n made but which the appellate court\n concluded should properly be based on\n another ground within the power of the\n appellate court to formulate.\n\nSEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (citation\nomitted) (quoting Helvering v. Gowran, 302 U.S. 238, 245\n(1937)); see also Alcaraz v. Block, 746 F.2d 593, 602 (9th\nCir. 1984) (“We will affirm the district court’s correct legal\nresults, even if reached for the wrong reasons.”). Here, we\nhave before us the correct result; as discussed below,\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use, and thus dismissal was required. We also have the\ndistrict court’s analysis in its Rule 12(b)(6) order, which still\nstands and has not been altered or retracted. Therefore, we\nconclude that dismissal of Plaintiff’s complaint was the\ncorrect legal result, even if the district court reached it for\nthe wrong reason—as a sanction under Rule 41(b)—instead\nof the correct reason—as a dismissal under Rule 12(b)(6).\nAccordingly, we do not need to remand the action, and will\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 15\n\ninstead proceed with analysis of the district court’s dismissal\npursuant to Rule 12(b)(6). 5\n\nIII. Rule 12(b)(6)\n\n Defendants maintain, as the district court concluded, that\ntheir use of Plaintiff’s marks constituted nominative fair use.\nWe agree.\n\n Pursuant to this defense, the “nominative use of a mark—\nwhere the only word reasonably available to describe a\nparticular thing is pressed into service—lies outside the\nstrictures of trademark law: Because it does not implicate the\nsource-identification function that is the purpose of\ntrademark, it does not constitute unfair competition.” New\nKids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,\n308 (9th Cir. 1992). 6 New Kids held that\n\n\n 5\n We note that this approach is consistent with the basic principles\nof finality that undergird our appellate jurisdiction. The district court’s\nRule 12(b)(6) order dispensed with all of Plaintiff’s claims, and hence\nwas “a full adjudication of the issues.” Nat’l Distrib. Agency v.\nNationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). If not for\nthe court’s grant of leave to amend—which, again, Plaintiff has made\nclear it had no intention of undertaking—the dismissal would have\n“clearly evidence[d] the judge’s intention that it be the court’s final act\nin the matter.” Id. (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir.\n1990)). Accordingly, we are satisfied that the Rule 12(b)(6) order is\nsufficiently final for our review, since Plaintiff’s refusal to amend\nensures that the decision was not “tentative, informal or incomplete,” and\nis thus reviewable. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,\n1101 (9th Cir. 1998) (quoting Cohen v. Beneficial Indus. Loan Corp.,\n337 U.S. 541, 546 (1949)).\n 6\n Accordingly, although Plaintiff’s complaint included various\ncauses of action—including trademark infringement and dilution and\nfederal and state unfair competition—the nominative fair use defense\napplied to all of its claims. See Playboy Enters., Inc. v. Welles, 279 F.3d\n\f16 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n a commercial user is entitled to a nominative\n fair use defense provided he meets the\n following three requirements: First, the\n product or service in question must be one not\n readily identifiable without use of the\n trademark; second, only so much of the mark\n or marks may be used as is reasonably\n necessary to identify the product or service;\n and third, the user must do nothing that\n would, in conjunction with the mark, suggest\n sponsorship or endorsement by the trademark\n holder.\n\nId. (footnote omitted). If the nominative use of a mark\nsatisfies these three factors, then there is no infringement;\n“[i]f the nominative use does not satisfy all the New Kids\nfactors, the district court may order defendants to modify\ntheir use of the mark so that all three factors are satisfied.”\nToyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171,\n1176 (9th Cir. 2010).\n\n Although Plaintiff’s primary contention is that\nDefendants’ use of its marks failed to satisfy the third New\nKids factor, it challenges the district court’s conclusions as\nto all three. We will thus consider each factor in turn.\n\n\n796, 806 (9th Cir. 2002) (“Uses that do not create an improper\nassociation between a mark and a new product but merely identify the\ntrademark holder’s products should be excepted from the reach of the\nanti-dilution statute.”); Cleary v. News Corp., 30 F.3d 1255, 1262–63\n(9th Cir. 1994) (“This Circuit has consistently held that state common\nlaw claims of unfair competition and actions pursuant to California\nBusiness and Professions Code § 17200 are ‘substantially congruent’ to\nclaims made under the Lanham Act.” (quoting Acad. of Motion Picture\nArts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1457\n(9th Cir. 1991))).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 17\n\n A. Whether Plaintiff’s Service Was Readily\n Identifiable Without Use of the Trademarks\n\n Plaintiff contends that “Defendants did not need to use\nPlaintiff’s trademarks to identify their Program.” It\nconcedes that “the Program apparently addresses Plaintiff’s\nworkers’ compensation product in particular,” but\nnonetheless argues that “Defendants could have come up\nwith another readily understood generic or descriptive\nname.”\n\n The email attached to the complaint demonstrates that\nDefendants’ seminar exclusively critiqued Plaintiff’s\nEquityComp service. The title of the seminar was “Applied\nUnderwriters’ EquityComp® Program Like it, Leave it, or\nLet it be?” and its subtitle read, “Learn the best strategies for\nselling, competing with, or helping a prospect out of\nEquityComp® mid-term.” We have previously determined\nthat a descriptive alternative—such as Plaintiff’s proposed\n“Risk Sharing Workers’ Comp Program” or “Captive\nWorkers’ Comp Arrangement Program”—need not be\nemployed where use of a mark is necessary to refer to a\nspecific brand or product. As we explained in Toyota Motor\nSales,\n\n Toyota claims . . . the Tabaris could have\n used a domain name that did not contain the\n Lexus mark. It’s true they could have used\n some other domain name like\n autobroker.com or fastimports.com, or have\n used the text of their website to explain their\n business. But it’s enough to satisfy our test\n for necessity that the Tabaris needed to\n communicate that they specialize in Lexus\n vehicles, and using the Lexus mark in their\n domain names accomplished this goal.\n\f18 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n610 F.3d at 1180; see also Playboy Enters., Inc. v. Welles,\n279 F.3d 796, 802 (9th Cir. 2002) (“[T]here is no other way\nthat Ms. Welles can identify or describe herself and her\nservices without venturing into absurd descriptive phrases.\nTo describe herself as the ‘nude model selected by Mr.\nHefner’s magazine as its number-one prototypical woman\nfor the year 1981’ would be impractical as well as ineffectual\nin identifying Terri Welles to the public.”). 7\n\n Such is the case here. The seminar did not discuss\nworkers’ compensation programs generally, but rather\nPlaintiff’s specific offering. Therefore, Defendants “needed\nto communicate” that they critiqued the EquityComp\nprogram, and so using the mark in the title and description\nof the program “accomplished this goal.” Toyota Motor\nSales, 610 F.3d at 1180.\n\n In its reply brief, Plaintiff makes the argument that, even\nif the use of the “EquityComp” mark satisfied the first New\nKids factor, the use of the “Applied Underwriters” mark did\nnot. Plaintiff suggests that “[t]he addition of the ‘Applied\nUnderwriters’ mark does nothing to identify the content of\nthe seminar but instead serves solely to create the impression\n\n 7\n Plaintiff suggests that “Defendants’ attempt to apply Welles to their\nseminar is circular” because “[o]n one hand, defendants insist that they\ncould not possibly have described their seminar without using plaintiff’s\nmark,” but on the other hand, “if a more generic descriptor could not be\nused to describe the seminar because the subject of the seminar [was]\nlimited to EquityComp®, then the suggestion of sponsorship is\nreinforced. After all, a reasonably prudent consumer could assume that\na seminar focused on a single product is sponsored or endorsed by the\nentity selling that product.” However, this reasoning would essentially\nvitiate the nominative fair use defense, because it suggests that any time\nthe first New Kids factor is satisfied—in other words, when use of a mark\nis needed for identification purposes—then the third factor could never\nbe satisfied, because endorsement would always be presupposed in such\ncases.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 19\n\nthat Applied Underwriters is sponsoring or endorsing a\nseminar about its own EquityComp® product.” It relies on\nPlayboy Enterprises, in which we determined that while use\nof the trademarked phrase “Playboy Playmate of the Year\n1981” was permissible because it was needed for\nidentification purposes, use of another potentially protected\nphrase—“PMOY ‘81”—was not. 279 F.3d at 804. We\nreasoned that “[t]he repeated depiction of ‘PMOY ‘81’ is not\nnecessary to describe Welles. ‘Playboy Playmate of the\nYear 1981’ is quite adequate.” Id. Here, similarly, Plaintiff\nsuggests that the “EquityComp” mark identified the service\nthat Defendants analyzed in their seminar, and thus the\n“Applied Underwriters” mark did not serve that function.\nBut this argument falls short. Defendants’ use of the\n“Applied Underwriters” mark was not necessarily redundant\nbecause it was used to identify the company that offered\nEquityComp—a company that was itself critiqued in the\nseminar. We therefore find this case distinguishable from\nPlayboy Enterprises, where use of the “PMOY ‘81” mark\nserved no additional identification purpose.\n\n Accordingly, because both marks were needed to\nidentify the service (and company) that Defendants analyzed\nin their seminar, the district court correctly determined that\nthe first New Kids factor was satisfied.\n\n B. Whether Defendants Used Only So Much of the\n Trademarks As Was Reasonably Necessary\n\n Plaintiff argues that Defendants’ use of its marks failed\nthe second factor because the email attached to the complaint\nfeatured several uses of both marks. That argument relies on\na misunderstanding of this factor. The second New Kids\nfactor does not implicate the number of uses of a mark, but\nrather the nature of the uses. In clarifying it, we explained\nthat “a soft drink competitor would be entitled to compare\n\f20 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nits product to Coca-Cola or Coke, but would not be entitled\nto use Coca-Cola’s distinctive lettering.” New Kids,\n971 F.2d at 308 n.7; see also Playboy Enters., 279 F.3d at\n802 (“Welles’ banner advertisements and headlines satisfy\nthis element because they use only the trademarked words,\nnot the font or symbols associated with the trademarks.”);\nVolkswagenwerk Aktiengesellschaft v. Church, 411 F.2d\n350, 352 (9th Cir. 1969) (noting that defendant “did not use\nVolkswagen’s distinctive lettering style or color scheme, nor\ndid he display the encircled ‘VW’ emblem”); cf. Toyota\nMotor Sales, 610 F.3d at 1181 (“Toyota suggests that use of\nthe stylized Lexus mark and ‘Lexus L’ logo was more use of\nthe mark than necessary and suggested sponsorship or\nendorsement by Toyota. This is true: The Tabaris could\nadequately communicate their message without using the\nvisual trappings of the Lexus brand.”). Our case law\ndemonstrates that analysis of this factor should focus not on\nthe number of uses of Plaintiffs’ marks, but on whether\nDefendants used more of each individual mark than was\nnecessary in terms of font and stylization.\n\n Here, Defendants correctly note that the email “did not\nuse any part of Plaintiff’s service marks, the distinctive\nlettering or design; rather they used only the term ‘Applied\nUnderwriters’ and ‘EquityComp’ in describing its webcast.”\nThe email did not contain, for example, the illustration of a\nSt. Bernard or the stylized lettering of Plaintiff’s registered\nmarks. It did not even employ the distinctive small-caps\nrendering of the “Applied Underwriters” and “EquityComp”\nmarks. Defendants used only the words themselves, which\nwere, as discussed above, necessary to identify Plaintiff’s\nproduct. Therefore, the second New Kids factor was\nsatisfied.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 21\n\n C. Whether Use of the Trademarks Suggested\n Sponsorship or Endorsement\n\n Plaintiff asserts that, “[s]imply put, Defendants’\nadvertising creates confusion.”\n\n At the outset, it claims that “[t]he district court erred by\nignoring Plaintiff’s evidence of actual confusion in its Order,\nwhich nowhere mentions the actual confusion.” However,\nin its complaint, Plaintiff pleaded no such facts of actual\nconfusion. Instead, the complaint stated only that\n“Defendants’ improper use of the APPLIED\nUNDERWRITERS IP has caused, and will continue to\ncause, damaging and actual confusion among the public.”\nThat conclusory statement constituted the only evidence of\nconfusion contained in the complaint, and at no other point\ndid Plaintiff plead facts suggesting that use of its marks led\nconsumers to assume that it sponsored or endorsed\nDefendants’ seminar. 8\n\n Plaintiff also notes that Defendants employed the ®\nregistration symbol in conjunction with their uses of the\n“Applied Underwriters” and “EquityComp” marks, which it\nclaims “makes the use of the trademark look more official or\nauthorized, because one would expect that the trademark\nowner or its authorized users would use the registration\nsymbol ®, not unauthorized users.” This is not a particularly\ncompelling argument. Although Defendants did use the ®\nsymbol, the email attached to the complaint clarified that\n 8\n In its opposition to Defendants’ motion to dismiss, Plaintiff\nreferenced a “confused potential customer” who reached out to it.\nHowever, that allegation was not included in the complaint, and so it\ncannot be considered. See Arpin v. Santa Clara Valley Transp. Agency,\n261 F.3d 912, 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be\nconsidered in ruling on a motion to dismiss.”).\n\f22 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n“EquityComp is the registered trademark of Applied\nUnderwriters, Inc.” 9 Moreover, in the body of the email (and\non the DVD cover), the title of the seminar—which did\nfeature both the “Applied Underwriters” and “EquityComp”\nmarks—was in regular font beneath a stylized logo for\nWCE:\n\n\n\n\nThis further suggested that it was WCE—not Plaintiff—that\nsponsored the seminar, which discounts the possibility of\nany confusion.\n\n Furthermore, Defendants correctly argue that any\nlikelihood of confusion is implausible due to the content of\n\n 9\n At least one district court has dismissed a trademark infringement\nclaim under similar circumstances. See Architectural Mailboxes, LLC v.\nEpoch Design, LLC, No. 10cv974 DMS (CAB), 2011 WL 1630809, at\n3 (S.D. Cal. Apr. 28, 2011) (“[T]he exhibits attached to the Complaint\nlead to the same conclusion, namely that Plaintiff has failed to allege\nsufficient facts to demonstrate a likelihood of confusion. The excerpts\nfrom Defendant’s website clearly identify Plaintiff as the manufacturer\nof the Oasis Jr. mailbox. The website even goes so far as to state,\n‘Oasis® is a registered trademark of Architectural Mailboxes.’” (citation\nomitted)).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 23\n\nthe email and the seminar itself. The text of the email\nreferred to EquityComp as a “sophisticated yet controversial\nprogram,” and Lichtenegger was billed as a lawyer who “for\n15 years has specialized in Investment and Commercial\nFraud recovery” and “represents a panoply of employers vs\nApplied and is well versed in their math and how their\nprogram works.” Debber, for his part, was credited as the\nperson “who broke the recent spate of stories about Applied\nUnderwriters’ EquityComp Program. Only that other mild\nmannered reporter, Clark Kent, exceeds Dale’s commitment\nto ‘Truth, Justice and the American Way.’” The seminar’s\nsubtitle advertised that users can “[l]earn the best strategies\nfor . . . helping a prospect out of EquityComp® mid-term,”\nand a reasonable consumer in this context would surely\nunderstand that Plaintiff would not be in the business of\nhelping customers out of its programs. 10\n\n We have held that criticism of a product tends to negate\nthe possibility of confusion as to sponsorship and\nendorsement. See New Kids, 971 F.2d at 308–09\n(“[N]othing in the announcements suggests joint\nsponsorship or endorsement by the New Kids. The USA\nToday announcement implies quite the contrary by asking\nwhether the New Kids might be ‘a turn off.’”). 11 Here, it\n\n 10\n Additionally, the list of questions that the seminar purportedly\nanswered included several that Plaintiff would be unlikely to field, such\nas “If you have a client in the program who is unhappy, should you get\nthem out and if so, how to know when?” and “How to compete against\nthe program—at the start and mid-term.”\n 11\n District courts have reached similar conclusions. See, e.g., 1800\nGET THIN, LLC v. Hiltzik, No. CV11-00505 ODW (PJWx), 2011 WL\n3206486, at 3 (C.D. Cal. July 25, 2011) (determining on motion to\ndismiss that “Defendants have not done anything that would suggest\nPlaintiff has sponsored or endorsed Defendants’ use of Plaintiff’s\nclaimed trademark because the articles and comments . . . do not portray\n\f24 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nwas clear from the text of the email that the seminar was a\ncritique of Plaintiff’s program, and it is simply not plausible\nthat it could have been construed as anything else.\n\n It is true, as Plaintiff notes, that “[t]he existence of\nconsumer confusion is a fact-intensive analysis that does not\nlend itself to a motion to dismiss.” See, e.g., Williams v.\nGerber Prods. Co., 552 F.3d 934, 938–39 (9th Cir. 2008).\nEven so, based on the critical nature of the presentation, the\ndisclaimer included in the text, and the fact that Defendants\nadvertised the seminar under the WCE banner, we cannot\nconclude that a “reasonably prudent consumer” in the\nrelevant marketplace, Toyota Motor Sales, 610 F.3d at 1176,\ncould have interpreted Defendants’ seminar has being\nendorsed or sponsored by Plaintiff. The complaint contained\nonly scant, conclusory allegations of consumer confusion,\nwhich, even when considered in the light most favorable to\nPlaintiff, were belied by the allegedly infringing email\nattached to the complaint, which demonstrated nominative\nfair use. Although Plaintiff introduced additional evidence\nthat might change this conclusion in its opposition to\nDefendants’ motion to dismiss, those additional facts cannot\nbe considered because they were not included in the\noperative pleading. The third New Kids factor was therefore\nsatisfied.\n\n\n\n\nPlaintiff in a positive light”); Patmont Motor Werks, Inc. v. Gateway\nMarine, Inc., No. C 96-2703 TEH, 1997 WL 811770, at *4 (N.D. Cal.\nDec. 18, 1997) (“The third and final requirement is met because nothing\nin Anthony DeBartolo’s website could possibly be construed to indicate\nPatmont’s sponsorship or endorsement. Indeed, the Court would find\nincredible any argument to the contrary given the website’s\ndisparagement of Go-Peds as unsafe and of Patmont management as\ncriminally anti-competitive.”).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 25\n\n D. Summation\n\n Although it is a “rare situation in which granting a\nmotion to dismiss is appropriate” when a case involves\nquestions of consumer confusion, Williams, 552 F.3d at 939,\nthe district court properly concluded that Plaintiff failed to\nstate claims for which relief could be granted because, on the\nface of the complaint, it was clear that Defendants’ alleged\ninfringement constituted nominative fair use.\n\n CONCLUSION\n\n We conclude that the district court abused its discretion\nwhen it dismissed Plaintiff’s complaint as a sanction\npursuant to Rule 41(b) without actually ordering Plaintiff to\namend its complaint. However, we also conclude that\ndismissal was nevertheless appropriate, because\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use. Accordingly, we AFFIRM the district court’s\ndismissal of Plaintiff’s complaint.\n[END_CASE]", "role": "user" } ]
4,581,584		Alquandre Turner v. Renee Baker	2019-01-15	17-72044	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and LAWRENCE L. PIERSOL, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ALQUANDRE H. TURNER, No. 17-72044\n Petitioner,\n\n v. OPINION\n\n RENEE BAKER, Warden,\n Respondent.\n\n\n\n Application to File Second or Successive\n Petition Under 28 U.S.C. § 2254\n\n Argued and Submitted November 16, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: A. WALLACE TASHIMA and MILAN D.\n SMITH, JR., Circuit Judges, and LAWRENCE L.\n PIERSOL, * District Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 TURNER V. BAKER\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel denied as unnecessary Alquandre Turner’s\napplication to file a second or successive habeas corpus\npetition challenging his Nevada state conviction and\nsentence, and transferred the petition to the district court\nwith instructions to consider it as a first habeas petition.\n\n The panel held that a Nevada state court’s amended\njudgment awarding a defendant credit for time served\nconstitutes a new judgment, and that Turner’s habeas\npetition is therefore the first petition challenging his\namended judgment, which does not require authorization\nfrom this court.\n\n The panel wrote that the issue of the timeliness of\nTurner’s petition is not properly before this court after this\ncourt determined, in an application for authorization to file a\nsecond or successive petition, that Turner’s petition is a first\npetition.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f TURNER V. BAKER 3\n\n COUNSEL\n\nThomas L. Qualls (argued), Reno, Nevada, for Petitioner.\n\nHeidi P. Stern (argued), Chief Deputy Attorney General,\nOffice of the Attorney General, Las Vegas, Nevada, for\nRespondent.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n When Petitioner Alquandre Turner filed his third federal\nhabeas petition, the district court dismissed it in accordance\nwith the Antiterrorism and Effective Death Penalty Act of\n1996’s (AEDPA) general rule prohibiting a state prisoner\nfrom filing more than one federal petition for writ of habeas\ncorpus challenging his conviction or sentence. Like most\nrules, however, AEDPA has an exception: It does not bar\nsuccessive petitions when a prisoner challenges a new\njudgment. Turner now files this application for\nauthorization to file a second or successive petition under\n28 U.S.C. § 2254. But the title of his application is\ndeceiving: Turner’s argument is that his petition is not a\nsecond or successive, but rather a first petition challenging a\nnew judgment that added credit for the time he served before\nsentencing.\n\n We recently held that, under California law, a state\ncourt’s amended judgment awarding a defendant credit for\ntime served constitutes a new judgment. Gonzalez v.\nSherman, 873 F.3d 763, 769 (9th Cir. 2017). We reach the\nsame conclusion today as to Nevada law. Turner’s habeas\npetition, therefore, is the first petition challenging his\n\f4 TURNER V. BAKER\n\namended judgment. So we deny his application as\nunnecessary.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\n Following a jury trial in Clark County, Nevada, Turner\nwas convicted of, among other counts, sexual assault while\npossessing a deadly weapon (Count 5). For Count 5, the\nClark County District Court sentenced Turner to life with the\npossibility of parole after 10 years, plus a consecutive life\nsentence, with the possibility of parole after 10 years, for the\ndeadly weapon enhancement. The court’s judgment,\nhowever, contained a mistake. It stated that, as to Count 5,\nTurner was sentenced to life with the possibility of parole\nafter ten years, plus an enhancement of “ten (20) years\nminimum” for use of a deadly weapon. Moreover, the\njudgment of conviction listed no credit for time served by\nTurner before sentencing. On direct appeal, the Nevada\nSupreme Court affirmed Turner’s judgment.\n\n Turner filed a federal petition for writ of habeas corpus.\nThat petition was denied without prejudice. Turner then\nfiled a state petition for postconviction relief. It was also\ndenied, and Turner did not appeal. Turner filed another\nfederal habeas petition. It was denied again—this time with\nprejudice.\n\n Turner later moved to amend his judgment of conviction\nin the Clark County District Court. Turner argued that his\nsentence for Count 5 contained a clerical error—the\nenhancement for use of a deadly weapon should have stated\n“Ten (10) Years” instead of “Ten (20) Years.” Turner also\nargued that he was entitled to credit for 154 days of jail time\nthat he served before he was sentenced.\n\f TURNER V. BAKER 5\n\n The court granted the motion and issued Turner’s\namended judgment. The amended judgment revised the\ndeadly weapon enhancement on Count 5 to “Ten (10)\nYears.” The amended judgment also gave Turner credit for\n154 days of time served. The Nevada Supreme Court\naffirmed Turner’s amended judgment on June 10, 2015, and\nremittitur issued on July 6, 2015.\n\n On April 17, 2017, Turner filed a third federal habeas\npetition challenging his conviction and sentence. The\ndistrict court dismissed the petition without prejudice as an\nunauthorized successive petition. The court reasoned that\nbecause Turner had previously filed two federal habeas\npetitions challenging his judgment of conviction, the current\npetition was a successive petition that required the\nauthorization of this court.\n\n Turner then filed an application for leave to file a second\nor successive petition pursuant to 28 U.S.C. § 2254. We\nappointed counsel for Turner and requested a supplemental\napplication addressing whether Turner’s amended judgment\nconstituted a new judgment.\n\n ANALYSIS\n\nI. Turner’s Amended Judgment\n\n The question is whether Turner’s amended judgment\nawarding him credit for time served is a new judgment. We\nhold that it is.\n\n A. The Meaning of a New Judgment\n\n Among other purposes, AEDPA was enacted to ensure\ngreater finality of state and federal court judgments in\ncriminal cases. See Miller-El v. Cockrell, 537 U.S. 322, 337\n\f6 TURNER V. BAKER\n\n(2003). To this end, AEDPA places strict restrictions on “the\nrepeated filing of habeas petitions that attack the prisoner’s\nunderlying conviction.” Rishor v. Ferguson, 822 F.3d 482,\n490 (9th Cir. 2016) (quoting Leal Garcia v. Quarterman,\n573 F.3d 214, 220 (5th Cir. 2009)). A defendant wishing to\nfile a “second or successive” habeas petition with the district\ncourt must first obtain leave from the appropriate court of\nappeals. 28 U.S.C. § 2244(b)(3)(A).\n\n “Second or successive,” however, ought not be\ninterpreted literally—it is a “term of art.” Slack v. McDaniel,\n529 U.S. 473, 486 (2000). Just as consideration in contracts\ndoesn’t refer to thoughtful deliberation, and standing in\nfederal courts doesn’t refer to being in an upright position,\nso too does “second or successive” not “refe[r] to all § 2254\napplications filed second or successively in time.” Panetti\nv. Quarterman, 551 U.S. 930, 944 (2007).\n\n In Magwood v. Patterson, the Supreme Court held that\n“the phrase ‘second or successive’ must be interpreted with\nrespect to the judgment challenged.” 561 U.S. 320, 332–33\n(2010). Thus, “where . . . there is a ‘new judgment\nintervening between the two habeas petitions,’ [the petition]\nchallenging the resulting new judgment is not ‘second or\nsuccessive’ at all.” Id. at 341–42 (citation omitted) (quoting\nBurton v. Stewart, 549 U.S. 147, 156 (2007)).\n\n The holding in Magwood leads to the question of what\nconstitutes a “new judgment.” The Court did not provide a\ncomprehensive answer—it simply held that the prisoner’s\nresentencing in that case was a new judgment. Id. at 342.\nConsequently, since Magwood, lower courts have had to\ndecide how significant the change to a judgment must be to\ncreate a new judgment.\n\f TURNER V. BAKER 7\n\n We confronted that question in Gonzalez. Our decision\nprovided an example of a change to a judgment that does not\nconstitute a new judgment: the correction of a scrivener’s\nerror. Gonzalez, 873 F.3d at 769, 772. “A scrivener’s error\noccurs when there is a discrepancy between the court’s oral\npronouncement of the judgment and the written record of\nthat judgment in the minute order or in the abstract of\njudgment.” Id. at 772. We reasoned that when an amended\njudgment corrects a scrivener’s error, it does not change the\nunderlying judgment, but “only the written record that\nerroneously reflects that judgment.” Id. As a result, an\namended judgment correcting a scrivener’s error has no legal\nconsequences, and thus is not a new judgment.\n\n Gonzalez contrasted the correction of a scrivener’s error\nwith “a court’s recalculation and alteration of the number of\ntime-served or other similar credits awarded to a petitioner,”\nwhich does constitute a new judgment. Id. at 769. In so\nholding, we relied on—and limited our holding to—\nCalifornia law. Id. California requires prison officials to\nsubtract a defendant’s time served from the number of days\nto which the defendant would have otherwise been\nsentenced. Cal. Penal Code § 2900.5(a). Therefore, when\nan amended judgment awards a prisoner credit for time\nserved, it affects “the number of days a convicted individual\nwill spend in prison.” Gonzalez, 873 F.3d at 769.\n\n “Critical[]” to our holding in Gonzalez was the fact that\na judgment that does not include a prisoner’s credit for time\nserved is legally invalid. Id. California law requires courts\nto correct a judgment that does not include a prisoner’s time\nserved whenever it is discovered. Id. (citing People v.\nKaraman, 842 P.2d 100, 109 n.15 (1992); People v. Taylor,\n14 Cal. Rptr. 3d 550, 563 (Ct. App. 2004)). Thus, an\namended judgment awarding a defendant credit for time\n\f8 TURNER V. BAKER\n\nserved “remove[s] an invalid basis for incarcerating [the\ndefendant], and provide[s] a new and valid intervening\njudgment to which” the defendant is held in custody. Id. at\n770.\n\n B. Whether a Judgment Awarding Credit for Time\n Served is a New Judgment in Nevada\n\n Turner argues that Nevada law compels the same\nconclusion. Citing Derijk v. State, 373 P.3d 909 (Table)\n(Nev. 2011), and Kuykendall v. State, 926 P.2d 781 (Nev.\n1996), he contends that a judgment that does not include a\nprisoner’s credit for time served is also legally invalid.\n\n We begin with the statutory text. See Hughey v. United\nStates, 495 U.S. 411, 415 (1990). Nevada Revised Statute\n(N.R.S.) § 176.055 governs the credit defendants receive for\ntime served. That statute states, in relevant part, that\n“whenever a sentence of imprisonment . . . is imposed, the\ncourt may order that credit be allowed against the duration\nof the sentence.” N.R.S. § 176.055(1). The use of the word\n“may” suggests that, unlike in California, the decision\nwhether to award defendants time served against their\nsentences is discretionary, not mandatory. See United States\nv. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’\nwhen used in a statute, usually implies some degree of\ndiscretion.”).\n\n The Nevada Supreme Court, however, has interpreted\nthe statute differently. It has held that “despite its\ndiscretionary language, the purpose of [§] 176.055 is to\n‘ensure that all time served is credited towards a defendant’s\nultimate sentence.’” State v. Second Judicial Dist. Court ex\nrel. County of Washoe, 116 P.3d 834, 836 (Nev. 2005)\n(quoting Kuykendall, 926 P.2d at 783). In so ruling, the\nNevada Supreme Court adopted the reasoning of the\n\f TURNER V. BAKER 9\n\nCalifornia Supreme Court, which held that courts must\naward prisoners credit for time served. See Kuykendall,\n926 P.2d at 783.\n\n To be sure, California and Nevada law are not identical.\nAs Gonzalez recognized, a judgment that does not include a\ndefendant’s credit for time served is “considered invalid or\n‘unlawful’” under California law. 873 F.3d at 769 (quoting\nKaraman, 842 P.2d 100, 109 n.15). Nevada courts have not\nmade such a definitive pronouncement.\n\n Nevertheless, the Nevada Supreme Court has twice\nremanded cases to the trial court with instructions that it\namend the defendant’s judgment to include credit for time\nserved, see Derijk, 373 P.3d at 909; Kuykendall, 926 P.3d at\n783, and appellate courts do not remand cases unless the\nlower court’s ruling is erroneous. See, e.g., Zivotofsky ex rel.\nZivotofsky v. Clinton, 566 U.S. 189, 201–02 (2012)\n(“[W]hen we reverse . . . we typically remand for resolution\nof any claims the lower courts’ error prevented them from\naddressing.”). Thus, those decisions implicitly demonstrate\nthat judgments that do not include a defendant’s credit for\ntime served are invalid.\n\n Our decision in Gonzalez, although based on California\nlaw, applies to amended judgments awarding defendants\ncredit for time served in Nevada. California and Nevada law\nare sufficiently similar to compel that conclusion. Thus, we\nconstrue Turner’s petition to be a first petition, which does\nnot require authorization from this court.\n\nII. Timeliness of Turner’s Petition\n\n The government argues that we should deny Turner’s\npetition because it was not timely. That issue, however, is\nnot properly before us. “In reviewing an application for a\n\f10 TURNER V. BAKER\n\nsecond or successive habeas petition, we do not assess the\ncognizability of that petition.” Clayton v. Biter, 868 F.3d\n840, 846 (9th Cir. 2017); accord Henry v. Spearman,\n899 F.3d 703, 710 (9th Cir. 2018) (“The requirement of a\nmere prima facie showing [in an application for leave to file\na second or successive petition] ‘render[s] irrelevant other\npossible grounds for dismissal such as ultimate lack of merit,\nnonexhaustion, procedural default, and the like.’”) (quoting\nHertz & Liebman, Federal Habeas Corpus Practice and\nProcedure § 28.3[d] (7th ed. 2017)).\n\n Having determined that Turner’s petition is a first\npetition, we may proceed no further. We transfer the petition\nto the district court to consider it as a first petition. See\nClayton, 868 F.3d at 846.\n\n CONCLUSION\n\n Under Nevada law, Turner’s petition is not a second or\nsuccessive petition because it challenges a new judgment.\nAs a result, he does not have to obtain authorization from\nthis court before filing it. We deny the application as\nunnecessary and transfer the petition to the United States\nDistrict Court for the District of Nevada with instructions to\nconsider it as a first habeas petition.\n\n APPLICATION DENIED and PETITION\nTRANSFERRED. No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358837/", "author_raw": "M. SMITH, Circuit Judge:"}]}	A WALLACE TASHIMA	MILAN D SMITH JR	LAWRENCE L PIERSOL	1		{"A WALLACE TASHIMA": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "LAWRENCE L PIERSOL": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581584/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Alquandre Turner v. Renee Baker\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ALQUANDRE H. TURNER, No. 17-72044\n Petitioner,\n\n v. OPINION\n\n RENEE BAKER, Warden,\n Respondent.\n\n\n\n Application to File Second or Successive\n Petition Under 28 U.S.C. § 2254\n\n Argued and Submitted November 16, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: A. WALLACE TASHIMA and MILAN D.\n SMITH, JR., Circuit Judges, and LAWRENCE L.\n PIERSOL, * District Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 TURNER V. BAKER\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel denied as unnecessary Alquandre Turner’s\napplication to file a second or successive habeas corpus\npetition challenging his Nevada state conviction and\nsentence, and transferred the petition to the district court\nwith instructions to consider it as a first habeas petition.\n\n The panel held that a Nevada state court’s amended\njudgment awarding a defendant credit for time served\nconstitutes a new judgment, and that Turner’s habeas\npetition is therefore the first petition challenging his\namended judgment, which does not require authorization\nfrom this court.\n\n The panel wrote that the issue of the timeliness of\nTurner’s petition is not properly before this court after this\ncourt determined, in an application for authorization to file a\nsecond or successive petition, that Turner’s petition is a first\npetition.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f TURNER V. BAKER 3\n\n COUNSEL\n\nThomas L. Qualls (argued), Reno, Nevada, for Petitioner.\n\nHeidi P. Stern (argued), Chief Deputy Attorney General,\nOffice of the Attorney General, Las Vegas, Nevada, for\nRespondent.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n When Petitioner Alquandre Turner filed his third federal\nhabeas petition, the district court dismissed it in accordance\nwith the Antiterrorism and Effective Death Penalty Act of\n1996’s (AEDPA) general rule prohibiting a state prisoner\nfrom filing more than one federal petition for writ of habeas\ncorpus challenging his conviction or sentence. Like most\nrules, however, AEDPA has an exception: It does not bar\nsuccessive petitions when a prisoner challenges a new\njudgment. Turner now files this application for\nauthorization to file a second or successive petition under\n28 U.S.C. § 2254. But the title of his application is\ndeceiving: Turner’s argument is that his petition is not a\nsecond or successive, but rather a first petition challenging a\nnew judgment that added credit for the time he served before\nsentencing.\n\n We recently held that, under California law, a state\ncourt’s amended judgment awarding a defendant credit for\ntime served constitutes a new judgment. Gonzalez v.\nSherman, 873 F.3d 763, 769 (9th Cir. 2017). We reach the\nsame conclusion today as to Nevada law. Turner’s habeas\npetition, therefore, is the first petition challenging his\n\f4 TURNER V. BAKER\n\namended judgment. So we deny his application as\nunnecessary.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\n Following a jury trial in Clark County, Nevada, Turner\nwas convicted of, among other counts, sexual assault while\npossessing a deadly weapon (Count 5). For Count 5, the\nClark County District Court sentenced Turner to life with the\npossibility of parole after 10 years, plus a consecutive life\nsentence, with the possibility of parole after 10 years, for the\ndeadly weapon enhancement. The court’s judgment,\nhowever, contained a mistake. It stated that, as to Count 5,\nTurner was sentenced to life with the possibility of parole\nafter ten years, plus an enhancement of “ten (20) years\nminimum” for use of a deadly weapon. Moreover, the\njudgment of conviction listed no credit for time served by\nTurner before sentencing. On direct appeal, the Nevada\nSupreme Court affirmed Turner’s judgment.\n\n Turner filed a federal petition for writ of habeas corpus.\nThat petition was denied without prejudice. Turner then\nfiled a state petition for postconviction relief. It was also\ndenied, and Turner did not appeal. Turner filed another\nfederal habeas petition. It was denied again—this time with\nprejudice.\n\n Turner later moved to amend his judgment of conviction\nin the Clark County District Court. Turner argued that his\nsentence for Count 5 contained a clerical error—the\nenhancement for use of a deadly weapon should have stated\n“Ten (10) Years” instead of “Ten (20) Years.” Turner also\nargued that he was entitled to credit for 154 days of jail time\nthat he served before he was sentenced.\n\f TURNER V. BAKER 5\n\n The court granted the motion and issued Turner’s\namended judgment. The amended judgment revised the\ndeadly weapon enhancement on Count 5 to “Ten (10)\nYears.” The amended judgment also gave Turner credit for\n154 days of time served. The Nevada Supreme Court\naffirmed Turner’s amended judgment on June 10, 2015, and\nremittitur issued on July 6, 2015.\n\n On April 17, 2017, Turner filed a third federal habeas\npetition challenging his conviction and sentence. The\ndistrict court dismissed the petition without prejudice as an\nunauthorized successive petition. The court reasoned that\nbecause Turner had previously filed two federal habeas\npetitions challenging his judgment of conviction, the current\npetition was a successive petition that required the\nauthorization of this court.\n\n Turner then filed an application for leave to file a second\nor successive petition pursuant to 28 U.S.C. § 2254. We\nappointed counsel for Turner and requested a supplemental\napplication addressing whether Turner’s amended judgment\nconstituted a new judgment.\n\n ANALYSIS\n\nI. Turner’s Amended Judgment\n\n The question is whether Turner’s amended judgment\nawarding him credit for time served is a new judgment. We\nhold that it is.\n\n A. The Meaning of a New Judgment\n\n Among other purposes, AEDPA was enacted to ensure\ngreater finality of state and federal court judgments in\ncriminal cases. See Miller-El v. Cockrell, 537 U.S. 322, 337\n\f6 TURNER V. BAKER\n\n(2003). To this end, AEDPA places strict restrictions on “the\nrepeated filing of habeas petitions that attack the prisoner’s\nunderlying conviction.” Rishor v. Ferguson, 822 F.3d 482,\n490 (9th Cir. 2016) (quoting Leal Garcia v. Quarterman,\n573 F.3d 214, 220 (5th Cir. 2009)). A defendant wishing to\nfile a “second or successive” habeas petition with the district\ncourt must first obtain leave from the appropriate court of\nappeals. 28 U.S.C. § 2244(b)(3)(A).\n\n “Second or successive,” however, ought not be\ninterpreted literally—it is a “term of art.” Slack v. McDaniel,\n529 U.S. 473, 486 (2000). Just as consideration in contracts\ndoesn’t refer to thoughtful deliberation, and standing in\nfederal courts doesn’t refer to being in an upright position,\nso too does “second or successive” not “refe[r] to all § 2254\napplications filed second or successively in time.” Panetti\nv. Quarterman, 551 U.S. 930, 944 (2007).\n\n In Magwood v. Patterson, the Supreme Court held that\n“the phrase ‘second or successive’ must be interpreted with\nrespect to the judgment challenged.” 561 U.S. 320, 332–33\n(2010). Thus, “where . . . there is a ‘new judgment\nintervening between the two habeas petitions,’ [the petition]\nchallenging the resulting new judgment is not ‘second or\nsuccessive’ at all.” Id. at 341–42 (citation omitted) (quoting\nBurton v. Stewart, 549 U.S. 147, 156 (2007)).\n\n The holding in Magwood leads to the question of what\nconstitutes a “new judgment.” The Court did not provide a\ncomprehensive answer—it simply held that the prisoner’s\nresentencing in that case was a new judgment. Id. at 342.\nConsequently, since Magwood, lower courts have had to\ndecide how significant the change to a judgment must be to\ncreate a new judgment.\n\f TURNER V. BAKER 7\n\n We confronted that question in Gonzalez. Our decision\nprovided an example of a change to a judgment that does not\nconstitute a new judgment: the correction of a scrivener’s\nerror. Gonzalez, 873 F.3d at 769, 772. “A scrivener’s error\noccurs when there is a discrepancy between the court’s oral\npronouncement of the judgment and the written record of\nthat judgment in the minute order or in the abstract of\njudgment.” Id. at 772. We reasoned that when an amended\njudgment corrects a scrivener’s error, it does not change the\nunderlying judgment, but “only the written record that\nerroneously reflects that judgment.” Id. As a result, an\namended judgment correcting a scrivener’s error has no legal\nconsequences, and thus is not a new judgment.\n\n Gonzalez contrasted the correction of a scrivener’s error\nwith “a court’s recalculation and alteration of the number of\ntime-served or other similar credits awarded to a petitioner,”\nwhich does constitute a new judgment. Id. at 769. In so\nholding, we relied on—and limited our holding to—\nCalifornia law. Id. California requires prison officials to\nsubtract a defendant’s time served from the number of days\nto which the defendant would have otherwise been\nsentenced. Cal. Penal Code § 2900.5(a). Therefore, when\nan amended judgment awards a prisoner credit for time\nserved, it affects “the number of days a convicted individual\nwill spend in prison.” Gonzalez, 873 F.3d at 769.\n\n “Critical[]” to our holding in Gonzalez was the fact that\na judgment that does not include a prisoner’s credit for time\nserved is legally invalid. Id. California law requires courts\nto correct a judgment that does not include a prisoner’s time\nserved whenever it is discovered. Id. (citing People v.\nKaraman, 842 P.2d 100, 109 n.15 (1992); People v. Taylor,\n14 Cal. Rptr. 3d 550, 563 (Ct. App. 2004)). Thus, an\namended judgment awarding a defendant credit for time\n\f8 TURNER V. BAKER\n\nserved “remove[s] an invalid basis for incarcerating [the\ndefendant], and provide[s] a new and valid intervening\njudgment to which” the defendant is held in custody. Id. at\n770.\n\n B. Whether a Judgment Awarding Credit for Time\n Served is a New Judgment in Nevada\n\n Turner argues that Nevada law compels the same\nconclusion. Citing Derijk v. State, 373 P.3d 909 (Table)\n(Nev. 2011), and Kuykendall v. State, 926 P.2d 781 (Nev.\n1996), he contends that a judgment that does not include a\nprisoner’s credit for time served is also legally invalid.\n\n We begin with the statutory text. See Hughey v. United\nStates, 495 U.S. 411, 415 (1990). Nevada Revised Statute\n(N.R.S.) § 176.055 governs the credit defendants receive for\ntime served. That statute states, in relevant part, that\n“whenever a sentence of imprisonment . . . is imposed, the\ncourt may order that credit be allowed against the duration\nof the sentence.” N.R.S. § 176.055(1). The use of the word\n“may” suggests that, unlike in California, the decision\nwhether to award defendants time served against their\nsentences is discretionary, not mandatory. See United States\nv. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’\nwhen used in a statute, usually implies some degree of\ndiscretion.”).\n\n The Nevada Supreme Court, however, has interpreted\nthe statute differently. It has held that “despite its\ndiscretionary language, the purpose of [§] 176.055 is to\n‘ensure that all time served is credited towards a defendant’s\nultimate sentence.’” State v. Second Judicial Dist. Court ex\nrel. County of Washoe, 116 P.3d 834, 836 (Nev. 2005)\n(quoting Kuykendall, 926 P.2d at 783). In so ruling, the\nNevada Supreme Court adopted the reasoning of the\n\f TURNER V. BAKER 9\n\nCalifornia Supreme Court, which held that courts must\naward prisoners credit for time served. See Kuykendall,\n926 P.2d at 783.\n\n To be sure, California and Nevada law are not identical.\nAs Gonzalez recognized, a judgment that does not include a\ndefendant’s credit for time served is “considered invalid or\n‘unlawful’” under California law. 873 F.3d at 769 (quoting\nKaraman, 842 P.2d 100, 109 n.15). Nevada courts have not\nmade such a definitive pronouncement.\n\n Nevertheless, the Nevada Supreme Court has twice\nremanded cases to the trial court with instructions that it\namend the defendant’s judgment to include credit for time\nserved, see Derijk, 373 P.3d at 909; Kuykendall, 926 P.3d at\n783, and appellate courts do not remand cases unless the\nlower court’s ruling is erroneous. See, e.g., Zivotofsky ex rel.\nZivotofsky v. Clinton, 566 U.S. 189, 201–02 (2012)\n(“[W]hen we reverse . . . we typically remand for resolution\nof any claims the lower courts’ error prevented them from\naddressing.”). Thus, those decisions implicitly demonstrate\nthat judgments that do not include a defendant’s credit for\ntime served are invalid.\n\n Our decision in Gonzalez, although based on California\nlaw, applies to amended judgments awarding defendants\ncredit for time served in Nevada. California and Nevada law\nare sufficiently similar to compel that conclusion. Thus, we\nconstrue Turner’s petition to be a first petition, which does\nnot require authorization from this court.\n\nII. Timeliness of Turner’s Petition\n\n The government argues that we should deny Turner’s\npetition because it was not timely. That issue, however, is\nnot properly before us. “In reviewing an application for a\n\f10 TURNER V. BAKER\n\nsecond or successive habeas petition, we do not assess the\ncognizability of that petition.” Clayton v. Biter, 868 F.3d\n840, 846 (9th Cir. 2017); accord Henry v. Spearman,\n899 F.3d 703, 710 (9th Cir. 2018) (“The requirement of a\nmere prima facie showing [in an application for leave to file\na second or successive petition] ‘render[s] irrelevant other\npossible grounds for dismissal such as ultimate lack of merit,\nnonexhaustion, procedural default, and the like.’”) (quoting\nHertz & Liebman, Federal Habeas Corpus Practice and\nProcedure § 28.3[d] (7th ed. 2017)).\n\n Having determined that Turner’s petition is a first\npetition, we may proceed no further. We transfer the petition\nto the district court to consider it as a first petition. See\nClayton, 868 F.3d at 846.\n\n CONCLUSION\n\n Under Nevada law, Turner’s petition is not a second or\nsuccessive petition because it challenges a new judgment.\nAs a result, he does not have to obtain authorization from\nthis court before filing it. We deny the application as\nunnecessary and transfer the petition to the United States\nDistrict Court for the District of Nevada with instructions to\nconsider it as a first habeas petition.\n\n APPLICATION DENIED and PETITION\nTRANSFERRED. No costs.\n[END_CASE]", "role": "user" } ]
4,582,013		Applied Underwriters, Inc. v. Larry Lichtenegger	2019-01-15	17-16815	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITERS, INC., a No. 17-16815\n Nebraska corporation,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02445-\n v. TLN-CKD\n\n LARRY J. LICHTENEGGER; J. DALE\n DEBBER; PROVIDENCE OPINION\n PUBLICATIONS, LLC, a California\n limited liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n Troy L. Nunley, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n SUMMARY \n\n\n Lanham Act / Civil Procedure\n\n The panel affirmed the district court’s dismissal of an\naction brought by a financial services company under the\nLanham Act.\n\n The panel held that the district court abused its discretion\nwhen it sanctioned the plaintiff and dismissed the case\npursuant to Federal Rule of Civil Procedure 41(b) absent an\norder requiring the plaintiff to file an amended complaint.\n\n The panel nonetheless affirmed the district court’s earlier\ndismissal for failure to state a claim under Rule 12(b)(6).\nThe panel concluded that defendants’ use of plaintiff’s\ntrademarks in the title of a webcast seminar and in\npromotional materials was a nominative fair use because\nplaintiff’s service was not readily identifiable without use of\nthe trademarks, defendants used only so much of the\ntrademarks as was reasonably necessary, and use of the\ntrademarks did not suggest sponsorship or endorsement.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 3\n\n COUNSEL\n\nKimberly A. Jansen (argued), Hinshaw & Culbertson LLP,\nChicago, Illinois; Mark Suri, Peter Felsenfeld, Travis Wall,\nand Spencer Y. Kook, Hinshaw & Culbertson LLP, Los\nAngeles, California; for Plaintiff-Appellant.\n\nDuffy Carolan (argued), Jassy Vick Carolan LLP, San\nFrancisco, California; Kevin L. Vick and Jean-Paul Jassy,\nJassy Vick Carolan LLP, Los Angeles, California; for\nDefendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n We are confronted with an appeal of a procedurally\ncurious nature. Plaintiff-Appellant Applied Underwriters,\nInc. (Plaintiff) appealed the district court’s dismissal of its\nclaims for trademark infringement and unfair competition,\non the apparent belief that the court dismissed the complaint\npursuant to Federal Rule of Civil Procedure 12(b)(6). When\nwe asked the district court to clarify its grounds for\ndismissal, however, it explained that it actually dismissed\nPlaintiff’s complaint as a sanction pursuant to Federal Rule\nof Civil Procedure 41(b).\n\f4 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Although we conclude that the district court abused its\ndiscretion when it sanctioned Plaintiff and dismissed the\ncase pursuant to Rule 41(b) absent an order requiring\nPlaintiff to file an amended complaint, we nevertheless\naffirm the district court’s earlier Rule 12(b)(6) dismissal\nbecause the use of Plaintiff’s trademarks by Defendants-\nAppellees Larry J. Lichtenegger, J. Dale Debber, and\nProvidence Publications, LLC (Defendants) constituted\nnominative fair use.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n Plaintiff is “a financial services company that provides\npayroll processing services and, through affiliated insurance\ncompanies, offers programs through which workers’\ncompensation insurance is offered and provided to\nemployers throughout the United States.” It began to use the\n“Applied Underwriters” mark in October 2001, and has\ncontinuously used the mark since. Beginning in October\n2002, it also began to use the “EquityComp” mark in\nconnection with its workers’ compensation insurance\nservices. The U.S. Patent and Trademark Office has issued\nPlaintiff five relevant trademark registrations: for the\n“Applied Underwriters” mark, the “EquityComp” mark, and\nthree stylized versions of these marks, two of which appear\nto depict a St. Bernard:\n\fAPPLIED UNDERWRITERS V. LICHTENEGGER 5\n\f6 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nIn its complaint, Plaintiff asserted that these registrations are\ncurrently in force and uncontestable, and that it\n“aggressively advertises and promotes its marks and its\nservices,” having “spent millions of dollars advertising”\nthem.\n\n Defendant Providence Publications, LLC publishes\nvarious online news sources, including “Workers’ Comp\nExecutive” (WCE). WCE features news reports and offers\nonline seminars, some of which feature Defendants\nLichtenegger and Debber.\n\n Plaintiff alleged that, beginning in November 2015,\nDefendants began offering a seminar (both online and on\nDVD) that “uses the APPLIED UNDERWRITERS and\nEQUITYCOMP marks in the title of the webcast.” The marks\nwere also featured in various promotional materials,\nincluding a widely distributed email advertisement.\nDefendants used these marks “without Applied\nUnderwriters’ authority or permission and in reckless\ndisregard of [its] federal trademark registrations and its\nrights.” Plaintiff also claimed that Defendants “specifically\nand intentionally target[ed] their marketing and advertising\n. . . to independent brokers and the business organizations\nthat they serve who use Plaintiff’s services.” In its\ncomplaint, Plaintiff averred that “[a]s a result of the\nlikelihood of confusion caused by Defendants’ unauthorized\nuse of” the marks, “Defendants are able to attract customers\nwho mistakenly believe that they will attend a program\nsponsored or affiliated with Applied Underwriters,” leading\nto dilution of the marks.\n\nII. Procedural Background\n\n Plaintiff filed a complaint asserting causes of action for\nfederal trademark infringement and dilution, false\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 7\n\ndesignation of origin under the Lanham Act, and federal and\nstate unfair competition. The next day, Plaintiff filed a\nmotion for a temporary restraining order, which the district\ncourt denied.\n\n Defendants moved to dismiss under Rule 12(b)(6),\narguing that their use of Plaintiff’s marks was protected\nunder the First Amendment, constituted nominal fair use,\nand satisfied the statutory defenses to trademark dilution.\nDefendants also filed a request for judicial notice that the\ndistrict court granted in part and denied in part, taking\njudicial notice only of the DVD of the seminar. Plaintiff in\nturn filed an opposition to Defendants’ motion to dismiss,\naccompanied by a declaration and additional evidence not\nincluded in its complaint. 1\n\n On July 6, 2017, the district court granted Defendants’\nmotion to dismiss, concluding that “Defendants’ use of the\nTrademarks is nominative fair use.” At Plaintiff’s request,\nthe court granted leave to amend the complaint within\n30 days. The district court docket confirms that Plaintiff\nneither filed an amended complaint (timely or otherwise) nor\nannounced an intent not to do so. Consequently, on August\n10, 2017, the district court issued a minute order that read:\n“In light of Plaintiff’s failure to file an Amended Complaint\npursuant to the Court’s Order (ECF No. [31]), this case is\nhereby DISMISSED. CASE CLOSED.” The clerk of court\n\n\n\n 1\n Plaintiff did not seek judicial notice of this additional evidence and,\nas Defendants note, “the District Court did not cite or rely on this\nevidence in its ruling.” Because this evidence was not part of the\ncomplaint or submitted for judicial notice, we will disregard it at this\nstage. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),\noverruled on other grounds by Galbraith v. County of Santa Clara,\n307 F.3d 1119 (9th Cir. 2002).\n\f8 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nsubsequently entered judgment “in accordance with the\nCourt’s Order filed on 8/10/2017.”\n\n This appeal followed. In their briefs, Plaintiff and\nDefendants disputed whether the district court dismissed\nPlaintiff’s complaint pursuant to Rule 12(b)(6), in which\ncase we would review the sufficiency of the complaint de\nnovo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), or\nas a sanction under Rule 41(b), which we would review for\nabuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983,\n986 (9th Cir. 1999). To remedy this confusion, we remanded\n\n this case for the limited purpose of allowing\n the district court to clarify whether the\n complaint was dismissed as a sanction under\n Federal Rule of Civil Procedure 41 or for\n failure to state a claim under Rule 12(b)(6),\n and, if the final dismissal was intended as a\n sanction under Rule 41(b), to state the\n reasoning behind the selection of that\n sanction.\n\nBefore oral argument in this appeal, the district court\nresponded with a clarification order, in which it explained\nthat it dismissed Plaintiff’s complaint as a sanction pursuant\nto Rule 41(b), and analyzed the five pertinent factors as\nenumerated in Yourish. It concluded that “[t]hree of the five\nfactors strongly favored dismissal, and this Court dismissed\nthe case under Rule 41(b) as a sanction for failure to comply\nwith the Court’s order.”\n\n STANDARD OF REVIEW AND JURISDICTION\n\n “We review de novo a district court’s dismissal of a\ncomplaint under [Rule] 12(b)(6) for failure to state a claim,”\nStarr, 652 F.3d at 1205, and “[w]e review the district court’s\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 9\n\ndismissal of a complaint pursuant to Rule 41(b) for abuse of\ndiscretion,” Yourish, 191 F.3d at 986. We have jurisdiction\npursuant to 28 U.S.C. § 1291—regardless of the basis for the\ndistrict court’s dismissal of Plaintiff’s complaint, its entry of\njudgment constituted a final decision of the court. Cf. De Tie\nv. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)\n(“The dismissal of an action, even when it is without\nprejudice, is a final order.”).\n\n ANALYSIS\n\nI. Rule 41(b)\n\n Under Rule 41(b), “[i]f the plaintiff fails to prosecute or\nto comply with . . . a court order”—such as by failing to file\nan amended complaint after being ordered to do so—“a\ndefendant may move to dismiss the action or any claim\nagainst it. Unless the dismissal order states otherwise, [such]\na dismissal . . . operates as an adjudication on the merits.”\nFed. R. Civ. P. 41(b). We have noted that “[w]hen a district\ncourt dismisses an action because the plaintiff has not filed\nan amended complaint after being given leave to do so and\nhas not notified the court of his intention not to file an\namended complaint, we may deem the dismissal to be for\nfailure to comply with a court order based on Federal Rule\nof Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d\n1133, 1142 (9th Cir. 2017).\n\n In the order clarifying its dismissal of Plaintiff’s\ncomplaint, the district court analyzed the five factors that\nmust be considered before dismissing a case pursuant to\nRule 41(b): “(1) the public’s interest in expeditious\nresolution of litigation; (2) the court’s need to manage its\ndocket; (3) the risk of prejudice to the defendants; (4) the\npublic policy favoring disposition of cases on their merits;\nand (5) the availability of less drastic alternatives.” Yourish,\n\f10 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n191 F.3d at 990 (quoting Hernandez v. City of El Monte,\n138 F.3d 393, 399 (9th Cir. 1998)). 2 However, the district\ncourt did not consider whether Rule 41(b) was even\napplicable in this case, given that Plaintiff was granted\nleave—not ordered—to amend its complaint. We hold that\nthe district court abused its discretion when it invoked Rule\n41(b) under these circumstances.\n\n We are not the first panel to address this question. See,\ne.g., Yourish, 191 F.3d at 986 n.4 (“This approach is\nsomewhat problematic because a plaintiff’s failure to amend\na complaint is not easily described as disobeying a court\norder because the plaintiff has the right simply to allow the\ncomplaint to be dismissed.”). Decades ago, the Fifth Circuit\nconsidered a similar factual scenario and concluded that\n\n [h]ad the District Judge intended what he\n wrote literally—that the action was being\n dismissed because the March order had been\n “disobeyed”—he would have been guilty of\n an abuse of his Rule 41(b) discretion to\n dismiss. Dismissal of a case for disobedience\n of a court order is an exceedingly harsh\n sanction which should be imposed only in\n extreme cases, and then only after\n exploration of lesser sanctions. Failure to\n amend a complaint after it has been dismissed\n with leave to amend is not such an extreme\n\n 2\n “Although it is preferred, it is not required that the district court\nmake explicit findings in order to show that it has considered these\nfactors and we may review the record independently to determine if the\ndistrict court has abused its discretion.” Yourish, 191 F.3d at 990\n(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).\nAccordingly, the fact that the district court initially dismissed the\ncomplaint without any explicit analysis of these five factors did not\nconstitute an abuse of discretion.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 11\n\n case of disobedience, if it is disobedience at\n all.\n\nMann v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,\n488 F.2d 75, 76 (5th Cir. 1973) (per curiam) (citations\nomitted). More recently, dissenting in Brown v. Rawson-\nNeal Psychiatric Hospital, Judge Graber concluded that a\ndistrict court’s dismissal with prejudice under Rule 41(b)\n“was an abuse of discretion for the simple reason that, under\nour precedents, Plaintiff did not fail to comply with a court\norder.” 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J.,\ndissenting). Judge Graber noted that our precedent makes\nclear that “[w]hen a district court requires a plaintiff to file\nan amended complaint, the court may dismiss the case under\nRule 41(b) if the plaintiff fails to follow the requirement.”\nId.; see also Edwards v. Marin Park, Inc., 356 F.3d 1058,\n1065 (9th Cir. 2004) (“The failure of the plaintiff eventually\nto respond to the court’s ultimatum—either by amending the\ncomplaint or by indicating to the court that it will not do so—\nis properly met with the sanction of a Rule 41(b) dismissal.”\n(emphasis added)); Yourish, 191 F.3d at 986 n.2 (noting that\nthe district court order stated that an “[a]mended complaint\nshall be filed within 60 days” (emphasis added)); Ferdik v.\nBonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that\nthe court “ordered” and “required” the filing of a second\namended complaint). However, in Brown, as in this case,\n\n the district court did not require Plaintiff to\n file an amended complaint, nor did the court\n require in the alternative that Plaintiff file an\n amended complaint or some other specified\n document. The court’s order denying\n Plaintiff’s motion for reconsideration merely\n granted leave to amend, with permissive text\n allowing Plaintiff to amend or not . . . .\n\f12 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Given the court’s failure to cite Rule 41(b),\n the permissive wording of its orders, and\n Plaintiff’s desire to obtain appellate review of\n the Rule 12(b)(6) dismissal as discussed in\n the motion for reconsideration, he\n understandably hoped for a dismissal, which\n he reasonably thought would be under Rule\n 12(b)(6). After all, the district court never\n ordered Plaintiff to file an amended\n complaint, as the courts had in Yourish or\n Ferdik. Leave to amend was granted; failure\n to amend did not constitute noncompliance\n with a court order. Simply put, there was no\n “ultimatum” within the meaning of our\n precedents, and so the district court abused its\n discretion in dismissing Plaintiff’s federal\n claims under Rule 41(b).\n\n840 F.3d at 1151 (Graber, J., dissenting). 3\n\n We agree with Judge Graber’s reasoning. By its plain\ntext, a Rule 41(b) dismissal under these circumstances\nrequires “a court order” with which an offending plaintiff\nfailed to comply. Fed. R. Civ. P. 41(b). 4 Here, there was no\n\n 3\n Notably, the Brown majority did not address this issue and instead\nbased its holding on the plaintiff’s failure to raise Rule 41(b) in his\nopening brief. See 840 F.3d at 1148–49. Thus, we are not bound by that\ncase to treat a permissive invitation to amend as a court order requiring\namendment.\n 4\n Rule 41(b) also permits dismissal when a plaintiff fails to prosecute\nits case or comply with the Federal Rules of Civil Procedure. See Fed.\nR. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with\nthese rules or a court order, a defendant may move to dismiss the action\nor any claim against it.”). However, these alternative bases for dismissal\nare not at issue in this appeal because the district court specifically stated\nthat its dismissal was based on Plaintiff’s failure to follow its court order.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 13\n\nsuch order—the district court did not require that Plaintiff\nfile an amended complaint following the initial Rule\n12(b)(6) dismissal. Instead, the court’s order concluded as\nfollows: “Plaintiff is GRANTED leave to amend within\nthirty (30) days of this Order.” The district court did not\nmandate the filing of an amended complaint, and it did not\nindicate that failure to do so would result in dismissal of the\ncomplaint pursuant to Rule 41(b). See Oliva v. Sullivan,\n958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an\nobligation to warn the plaintiff that dismissal is imminent.”).\n\n The district court’s dismissal under Rule 41(b) required\nnoncompliance with a court order. A grant of leave to amend\nis not an order to amend. Therefore, Rule 41(b) did not apply\nhere, and the district court’s dismissal on this ground\nconstituted an abuse of discretion.\n\nII. How to Proceed?\n\n Having concluded that the district court abused its\ndiscretion when it dismissed Plaintiff’s complaint as a\nsanction pursuant to Rule 41(b), we must now determine the\nproper course of action moving forward.\n\n One option is to remand. Upon remand, the district court\nwould presumably either again dismiss Plaintiff’s complaint\nunder Rule 12(b)(6), based on reasoning articulated in its\nprior order, or again grant Plaintiff leave to amend—an\nopportunity of which Plaintiff would not avail itself, given\nits stated desire to appeal the district court’s original Rule\n12(b)(6) dismissal. Remand would therefore require the\nparties to engage in additional and redundant briefing, and\nwould add years to their litigation. Nothing substantive\nwould be gained, and “remand . . . would be an unnecessary\nwaste of judicial and litigant resources.” O’Reilly v. Bd. of\nAppeals, 942 F.2d 281, 284 (4th Cir. 1991).\n\f14 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n We conclude that remand would not serve the interest of\njudicial economy, and fortunately, it is not required. As the\nSupreme Court explained,\n\n [I]n reviewing the decision of a lower court,\n it must be affirmed if the result is correct\n ‘although the lower court relied upon a wrong\n ground or gave a wrong reason.’ The reason\n for this rule is obvious. It would be wasteful\n to send a case back to a lower court to\n reinstate a decision which it had already\n made but which the appellate court\n concluded should properly be based on\n another ground within the power of the\n appellate court to formulate.\n\nSEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (citation\nomitted) (quoting Helvering v. Gowran, 302 U.S. 238, 245\n(1937)); see also Alcaraz v. Block, 746 F.2d 593, 602 (9th\nCir. 1984) (“We will affirm the district court’s correct legal\nresults, even if reached for the wrong reasons.”). Here, we\nhave before us the correct result; as discussed below,\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use, and thus dismissal was required. We also have the\ndistrict court’s analysis in its Rule 12(b)(6) order, which still\nstands and has not been altered or retracted. Therefore, we\nconclude that dismissal of Plaintiff’s complaint was the\ncorrect legal result, even if the district court reached it for\nthe wrong reason—as a sanction under Rule 41(b)—instead\nof the correct reason—as a dismissal under Rule 12(b)(6).\nAccordingly, we do not need to remand the action, and will\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 15\n\ninstead proceed with analysis of the district court’s dismissal\npursuant to Rule 12(b)(6). 5\n\nIII. Rule 12(b)(6)\n\n Defendants maintain, as the district court concluded, that\ntheir use of Plaintiff’s marks constituted nominative fair use.\nWe agree.\n\n Pursuant to this defense, the “nominative use of a mark—\nwhere the only word reasonably available to describe a\nparticular thing is pressed into service—lies outside the\nstrictures of trademark law: Because it does not implicate the\nsource-identification function that is the purpose of\ntrademark, it does not constitute unfair competition.” New\nKids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,\n308 (9th Cir. 1992). 6 New Kids held that\n\n\n 5\n We note that this approach is consistent with the basic principles\nof finality that undergird our appellate jurisdiction. The district court’s\nRule 12(b)(6) order dispensed with all of Plaintiff’s claims, and hence\nwas “a full adjudication of the issues.” Nat’l Distrib. Agency v.\nNationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). If not for\nthe court’s grant of leave to amend—which, again, Plaintiff has made\nclear it had no intention of undertaking—the dismissal would have\n“clearly evidence[d] the judge’s intention that it be the court’s final act\nin the matter.” Id. (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir.\n1990)). Accordingly, we are satisfied that the Rule 12(b)(6) order is\nsufficiently final for our review, since Plaintiff’s refusal to amend\nensures that the decision was not “tentative, informal or incomplete,” and\nis thus reviewable. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,\n1101 (9th Cir. 1998) (quoting Cohen v. Beneficial Indus. Loan Corp.,\n337 U.S. 541, 546 (1949)).\n 6\n Accordingly, although Plaintiff’s complaint included various\ncauses of action—including trademark infringement and dilution and\nfederal and state unfair competition—the nominative fair use defense\napplied to all of its claims. See Playboy Enters., Inc. v. Welles, 279 F.3d\n\f16 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n a commercial user is entitled to a nominative\n fair use defense provided he meets the\n following three requirements: First, the\n product or service in question must be one not\n readily identifiable without use of the\n trademark; second, only so much of the mark\n or marks may be used as is reasonably\n necessary to identify the product or service;\n and third, the user must do nothing that\n would, in conjunction with the mark, suggest\n sponsorship or endorsement by the trademark\n holder.\n\nId. (footnote omitted). If the nominative use of a mark\nsatisfies these three factors, then there is no infringement;\n“[i]f the nominative use does not satisfy all the New Kids\nfactors, the district court may order defendants to modify\ntheir use of the mark so that all three factors are satisfied.”\nToyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171,\n1176 (9th Cir. 2010).\n\n Although Plaintiff’s primary contention is that\nDefendants’ use of its marks failed to satisfy the third New\nKids factor, it challenges the district court’s conclusions as\nto all three. We will thus consider each factor in turn.\n\n\n796, 806 (9th Cir. 2002) (“Uses that do not create an improper\nassociation between a mark and a new product but merely identify the\ntrademark holder’s products should be excepted from the reach of the\nanti-dilution statute.”); Cleary v. News Corp., 30 F.3d 1255, 1262–63\n(9th Cir. 1994) (“This Circuit has consistently held that state common\nlaw claims of unfair competition and actions pursuant to California\nBusiness and Professions Code § 17200 are ‘substantially congruent’ to\nclaims made under the Lanham Act.” (quoting Acad. of Motion Picture\nArts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1457\n(9th Cir. 1991))).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 17\n\n A. Whether Plaintiff’s Service Was Readily\n Identifiable Without Use of the Trademarks\n\n Plaintiff contends that “Defendants did not need to use\nPlaintiff’s trademarks to identify their Program.” It\nconcedes that “the Program apparently addresses Plaintiff’s\nworkers’ compensation product in particular,” but\nnonetheless argues that “Defendants could have come up\nwith another readily understood generic or descriptive\nname.”\n\n The email attached to the complaint demonstrates that\nDefendants’ seminar exclusively critiqued Plaintiff’s\nEquityComp service. The title of the seminar was “Applied\nUnderwriters’ EquityComp® Program Like it, Leave it, or\nLet it be?” and its subtitle read, “Learn the best strategies for\nselling, competing with, or helping a prospect out of\nEquityComp® mid-term.” We have previously determined\nthat a descriptive alternative—such as Plaintiff’s proposed\n“Risk Sharing Workers’ Comp Program” or “Captive\nWorkers’ Comp Arrangement Program”—need not be\nemployed where use of a mark is necessary to refer to a\nspecific brand or product. As we explained in Toyota Motor\nSales,\n\n Toyota claims . . . the Tabaris could have\n used a domain name that did not contain the\n Lexus mark. It’s true they could have used\n some other domain name like\n autobroker.com or fastimports.com, or have\n used the text of their website to explain their\n business. But it’s enough to satisfy our test\n for necessity that the Tabaris needed to\n communicate that they specialize in Lexus\n vehicles, and using the Lexus mark in their\n domain names accomplished this goal.\n\f18 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n610 F.3d at 1180; see also Playboy Enters., Inc. v. Welles,\n279 F.3d 796, 802 (9th Cir. 2002) (“[T]here is no other way\nthat Ms. Welles can identify or describe herself and her\nservices without venturing into absurd descriptive phrases.\nTo describe herself as the ‘nude model selected by Mr.\nHefner’s magazine as its number-one prototypical woman\nfor the year 1981’ would be impractical as well as ineffectual\nin identifying Terri Welles to the public.”). 7\n\n Such is the case here. The seminar did not discuss\nworkers’ compensation programs generally, but rather\nPlaintiff’s specific offering. Therefore, Defendants “needed\nto communicate” that they critiqued the EquityComp\nprogram, and so using the mark in the title and description\nof the program “accomplished this goal.” Toyota Motor\nSales, 610 F.3d at 1180.\n\n In its reply brief, Plaintiff makes the argument that, even\nif the use of the “EquityComp” mark satisfied the first New\nKids factor, the use of the “Applied Underwriters” mark did\nnot. Plaintiff suggests that “[t]he addition of the ‘Applied\nUnderwriters’ mark does nothing to identify the content of\nthe seminar but instead serves solely to create the impression\n\n 7\n Plaintiff suggests that “Defendants’ attempt to apply Welles to their\nseminar is circular” because “[o]n one hand, defendants insist that they\ncould not possibly have described their seminar without using plaintiff’s\nmark,” but on the other hand, “if a more generic descriptor could not be\nused to describe the seminar because the subject of the seminar [was]\nlimited to EquityComp®, then the suggestion of sponsorship is\nreinforced. After all, a reasonably prudent consumer could assume that\na seminar focused on a single product is sponsored or endorsed by the\nentity selling that product.” However, this reasoning would essentially\nvitiate the nominative fair use defense, because it suggests that any time\nthe first New Kids factor is satisfied—in other words, when use of a mark\nis needed for identification purposes—then the third factor could never\nbe satisfied, because endorsement would always be presupposed in such\ncases.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 19\n\nthat Applied Underwriters is sponsoring or endorsing a\nseminar about its own EquityComp® product.” It relies on\nPlayboy Enterprises, in which we determined that while use\nof the trademarked phrase “Playboy Playmate of the Year\n1981” was permissible because it was needed for\nidentification purposes, use of another potentially protected\nphrase—“PMOY ‘81”—was not. 279 F.3d at 804. We\nreasoned that “[t]he repeated depiction of ‘PMOY ‘81’ is not\nnecessary to describe Welles. ‘Playboy Playmate of the\nYear 1981’ is quite adequate.” Id. Here, similarly, Plaintiff\nsuggests that the “EquityComp” mark identified the service\nthat Defendants analyzed in their seminar, and thus the\n“Applied Underwriters” mark did not serve that function.\nBut this argument falls short. Defendants’ use of the\n“Applied Underwriters” mark was not necessarily redundant\nbecause it was used to identify the company that offered\nEquityComp—a company that was itself critiqued in the\nseminar. We therefore find this case distinguishable from\nPlayboy Enterprises, where use of the “PMOY ‘81” mark\nserved no additional identification purpose.\n\n Accordingly, because both marks were needed to\nidentify the service (and company) that Defendants analyzed\nin their seminar, the district court correctly determined that\nthe first New Kids factor was satisfied.\n\n B. Whether Defendants Used Only So Much of the\n Trademarks As Was Reasonably Necessary\n\n Plaintiff argues that Defendants’ use of its marks failed\nthe second factor because the email attached to the complaint\nfeatured several uses of both marks. That argument relies on\na misunderstanding of this factor. The second New Kids\nfactor does not implicate the number of uses of a mark, but\nrather the nature of the uses. In clarifying it, we explained\nthat “a soft drink competitor would be entitled to compare\n\f20 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nits product to Coca-Cola or Coke, but would not be entitled\nto use Coca-Cola’s distinctive lettering.” New Kids,\n971 F.2d at 308 n.7; see also Playboy Enters., 279 F.3d at\n802 (“Welles’ banner advertisements and headlines satisfy\nthis element because they use only the trademarked words,\nnot the font or symbols associated with the trademarks.”);\nVolkswagenwerk Aktiengesellschaft v. Church, 411 F.2d\n350, 352 (9th Cir. 1969) (noting that defendant “did not use\nVolkswagen’s distinctive lettering style or color scheme, nor\ndid he display the encircled ‘VW’ emblem”); cf. Toyota\nMotor Sales, 610 F.3d at 1181 (“Toyota suggests that use of\nthe stylized Lexus mark and ‘Lexus L’ logo was more use of\nthe mark than necessary and suggested sponsorship or\nendorsement by Toyota. This is true: The Tabaris could\nadequately communicate their message without using the\nvisual trappings of the Lexus brand.”). Our case law\ndemonstrates that analysis of this factor should focus not on\nthe number of uses of Plaintiffs’ marks, but on whether\nDefendants used more of each individual mark than was\nnecessary in terms of font and stylization.\n\n Here, Defendants correctly note that the email “did not\nuse any part of Plaintiff’s service marks, the distinctive\nlettering or design; rather they used only the term ‘Applied\nUnderwriters’ and ‘EquityComp’ in describing its webcast.”\nThe email did not contain, for example, the illustration of a\nSt. Bernard or the stylized lettering of Plaintiff’s registered\nmarks. It did not even employ the distinctive small-caps\nrendering of the “APPLIED UNDERWRITERS” and\n“EQUITYCOMP” marks. Defendants used only the words\nthemselves, which were, as discussed above, necessary to\nidentify Plaintiff’s product. Therefore, the second New Kids\nfactor was satisfied.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 21\n\n C. Whether Use of the Trademarks Suggested\n Sponsorship or Endorsement\n\n Plaintiff asserts that, “[s]imply put, Defendants’\nadvertising creates confusion.”\n\n At the outset, it claims that “[t]he district court erred by\nignoring Plaintiff’s evidence of actual confusion in its Order,\nwhich nowhere mentions the actual confusion.” However,\nin its complaint, Plaintiff pleaded no such facts of actual\nconfusion. Instead, the complaint stated only that\n“Defendants’ improper use of the APPLIED\nUNDERWRITERS IP has caused, and will continue to\ncause, damaging and actual confusion among the public.”\nThat conclusory statement constituted the only evidence of\nconfusion contained in the complaint, and at no other point\ndid Plaintiff plead facts suggesting that use of its marks led\nconsumers to assume that it sponsored or endorsed\nDefendants’ seminar. 8\n\n Plaintiff also notes that Defendants employed the ®\nregistration symbol in conjunction with their uses of the\n“Applied Underwriters” and “EquityComp” marks, which it\nclaims “makes the use of the trademark look more official or\nauthorized, because one would expect that the trademark\nowner or its authorized users would use the registration\nsymbol ®, not unauthorized users.” This is not a particularly\ncompelling argument. Although Defendants did use the ®\nsymbol, the email attached to the complaint clarified that\n 8\n In its opposition to Defendants’ motion to dismiss, Plaintiff\nreferenced a “confused potential customer” who reached out to it.\nHowever, that allegation was not included in the complaint, and so it\ncannot be considered. See Arpin v. Santa Clara Valley Transp. Agency,\n261 F.3d 912, 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be\nconsidered in ruling on a motion to dismiss.”).\n\f22 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n“EquityComp is the registered trademark of Applied\nUnderwriters, Inc.” 9 Moreover, in the body of the email (and\non the DVD cover), the title of the seminar—which did\nfeature both the “Applied Underwriters” and “EquityComp”\nmarks—was in regular font beneath a stylized logo for\nWCE:\n\n\n\n\nThis further suggested that it was WCE—not Plaintiff—that\nsponsored the seminar, which discounts the possibility of\nany confusion.\n\n Furthermore, Defendants correctly argue that any\nlikelihood of confusion is implausible due to the content of\n\n 9\n At least one district court has dismissed a trademark infringement\nclaim under similar circumstances. See Architectural Mailboxes, LLC v.\nEpoch Design, LLC, No. 10cv974 DMS (CAB), 2011 WL 1630809, at\n3 (S.D. Cal. Apr. 28, 2011) (“[T]he exhibits attached to the Complaint\nlead to the same conclusion, namely that Plaintiff has failed to allege\nsufficient facts to demonstrate a likelihood of confusion. The excerpts\nfrom Defendant’s website clearly identify Plaintiff as the manufacturer\nof the Oasis Jr. mailbox. The website even goes so far as to state,\n‘Oasis® is a registered trademark of Architectural Mailboxes.’” (citation\nomitted)).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 23\n\nthe email and the seminar itself. The text of the email\nreferred to EquityComp as a “sophisticated yet controversial\nprogram,” and Lichtenegger was billed as a lawyer who “for\n15 years has specialized in Investment and Commercial\nFraud recovery” and “represents a panoply of employers vs\nApplied and is well versed in their math and how their\nprogram works.” Debber, for his part, was credited as the\nperson “who broke the recent spate of stories about Applied\nUnderwriters’ EquityComp Program. Only that other mild\nmannered reporter, Clark Kent, exceeds Dale’s commitment\nto ‘Truth, Justice and the American Way.’” The seminar’s\nsubtitle advertised that users can “[l]earn the best strategies\nfor . . . helping a prospect out of EquityComp® mid-term,”\nand a reasonable consumer in this context would surely\nunderstand that Plaintiff would not be in the business of\nhelping customers out of its programs. 10\n\n We have held that criticism of a product tends to negate\nthe possibility of confusion as to sponsorship and\nendorsement. See New Kids, 971 F.2d at 308–09\n(“[N]othing in the announcements suggests joint\nsponsorship or endorsement by the New Kids. The USA\nToday announcement implies quite the contrary by asking\nwhether the New Kids might be ‘a turn off.’”). 11 Here, it\n\n 10\n Additionally, the list of questions that the seminar purportedly\nanswered included several that Plaintiff would be unlikely to field, such\nas “If you have a client in the program who is unhappy, should you get\nthem out and if so, how to know when?” and “How to compete against\nthe program—at the start and mid-term.”\n 11\n District courts have reached similar conclusions. See, e.g., 1800\nGET THIN, LLC v. Hiltzik, No. CV11-00505 ODW (PJWx), 2011 WL\n3206486, at 3 (C.D. Cal. July 25, 2011) (determining on motion to\ndismiss that “Defendants have not done anything that would suggest\nPlaintiff has sponsored or endorsed Defendants’ use of Plaintiff’s\nclaimed trademark because the articles and comments . . . do not portray\n\f24 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nwas clear from the text of the email that the seminar was a\ncritique of Plaintiff’s program, and it is simply not plausible\nthat it could have been construed as anything else.\n\n It is true, as Plaintiff notes, that “[t]he existence of\nconsumer confusion is a fact-intensive analysis that does not\nlend itself to a motion to dismiss.” See, e.g., Williams v.\nGerber Prods. Co., 552 F.3d 934, 938–39 (9th Cir. 2008).\nEven so, based on the critical nature of the presentation, the\ndisclaimer included in the text, and the fact that Defendants\nadvertised the seminar under the WCE banner, we cannot\nconclude that a “reasonably prudent consumer” in the\nrelevant marketplace, Toyota Motor Sales, 610 F.3d at 1176,\ncould have interpreted Defendants’ seminar as being\nendorsed or sponsored by Plaintiff. The complaint contained\nonly scant, conclusory allegations of consumer confusion,\nwhich, even when considered in the light most favorable to\nPlaintiff, were belied by the allegedly infringing email\nattached to the complaint, which demonstrated nominative\nfair use. Although Plaintiff introduced additional evidence\nthat might change this conclusion in its opposition to\nDefendants’ motion to dismiss, those additional facts cannot\nbe considered because they were not included in the\noperative pleading. The third New Kids factor was therefore\nsatisfied.\n\n\n\n\nPlaintiff in a positive light”); Patmont Motor Werks, Inc. v. Gateway\nMarine, Inc., No. C 96-2703 TEH, 1997 WL 811770, at *4 (N.D. Cal.\nDec. 18, 1997) (“The third and final requirement is met because nothing\nin Anthony DeBartolo’s website could possibly be construed to indicate\nPatmont’s sponsorship or endorsement. Indeed, the Court would find\nincredible any argument to the contrary given the website’s\ndisparagement of Go-Peds as unsafe and of Patmont management as\ncriminally anti-competitive.”).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 25\n\n D. Summation\n\n Although it is a “rare situation in which granting a\nmotion to dismiss is appropriate” when a case involves\nquestions of consumer confusion, Williams, 552 F.3d at 939,\nthe district court properly concluded that Plaintiff failed to\nstate claims for which relief could be granted because, on the\nface of the complaint, it was clear that Defendants’ alleged\ninfringement constituted nominative fair use.\n\n CONCLUSION\n\n We conclude that the district court abused its discretion\nwhen it dismissed Plaintiff’s complaint as a sanction\npursuant to Rule 41(b) without actually ordering Plaintiff to\namend its complaint. However, we also conclude that\ndismissal was nevertheless appropriate, because\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use. Accordingly, we AFFIRM the district court’s\ndismissal of Plaintiff’s complaint.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359266/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582013/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Applied Underwriters, Inc. v. Larry Lichtenegger\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITERS, INC., a No. 17-16815\n Nebraska corporation,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02445-\n v. TLN-CKD\n\n LARRY J. LICHTENEGGER; J. DALE\n DEBBER; PROVIDENCE OPINION\n PUBLICATIONS, LLC, a California\n limited liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n Troy L. Nunley, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed January 15, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n SUMMARY \n\n\n Lanham Act / Civil Procedure\n\n The panel affirmed the district court’s dismissal of an\naction brought by a financial services company under the\nLanham Act.\n\n The panel held that the district court abused its discretion\nwhen it sanctioned the plaintiff and dismissed the case\npursuant to Federal Rule of Civil Procedure 41(b) absent an\norder requiring the plaintiff to file an amended complaint.\n\n The panel nonetheless affirmed the district court’s earlier\ndismissal for failure to state a claim under Rule 12(b)(6).\nThe panel concluded that defendants’ use of plaintiff’s\ntrademarks in the title of a webcast seminar and in\npromotional materials was a nominative fair use because\nplaintiff’s service was not readily identifiable without use of\nthe trademarks, defendants used only so much of the\ntrademarks as was reasonably necessary, and use of the\ntrademarks did not suggest sponsorship or endorsement.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 3\n\n COUNSEL\n\nKimberly A. Jansen (argued), Hinshaw & Culbertson LLP,\nChicago, Illinois; Mark Suri, Peter Felsenfeld, Travis Wall,\nand Spencer Y. Kook, Hinshaw & Culbertson LLP, Los\nAngeles, California; for Plaintiff-Appellant.\n\nDuffy Carolan (argued), Jassy Vick Carolan LLP, San\nFrancisco, California; Kevin L. Vick and Jean-Paul Jassy,\nJassy Vick Carolan LLP, Los Angeles, California; for\nDefendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n We are confronted with an appeal of a procedurally\ncurious nature. Plaintiff-Appellant Applied Underwriters,\nInc. (Plaintiff) appealed the district court’s dismissal of its\nclaims for trademark infringement and unfair competition,\non the apparent belief that the court dismissed the complaint\npursuant to Federal Rule of Civil Procedure 12(b)(6). When\nwe asked the district court to clarify its grounds for\ndismissal, however, it explained that it actually dismissed\nPlaintiff’s complaint as a sanction pursuant to Federal Rule\nof Civil Procedure 41(b).\n\f4 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Although we conclude that the district court abused its\ndiscretion when it sanctioned Plaintiff and dismissed the\ncase pursuant to Rule 41(b) absent an order requiring\nPlaintiff to file an amended complaint, we nevertheless\naffirm the district court’s earlier Rule 12(b)(6) dismissal\nbecause the use of Plaintiff’s trademarks by Defendants-\nAppellees Larry J. Lichtenegger, J. Dale Debber, and\nProvidence Publications, LLC (Defendants) constituted\nnominative fair use.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n Plaintiff is “a financial services company that provides\npayroll processing services and, through affiliated insurance\ncompanies, offers programs through which workers’\ncompensation insurance is offered and provided to\nemployers throughout the United States.” It began to use the\n“Applied Underwriters” mark in October 2001, and has\ncontinuously used the mark since. Beginning in October\n2002, it also began to use the “EquityComp” mark in\nconnection with its workers’ compensation insurance\nservices. The U.S. Patent and Trademark Office has issued\nPlaintiff five relevant trademark registrations: for the\n“Applied Underwriters” mark, the “EquityComp” mark, and\nthree stylized versions of these marks, two of which appear\nto depict a St. Bernard:\n\fAPPLIED UNDERWRITERS V. LICHTENEGGER 5\n\f6 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nIn its complaint, Plaintiff asserted that these registrations are\ncurrently in force and uncontestable, and that it\n“aggressively advertises and promotes its marks and its\nservices,” having “spent millions of dollars advertising”\nthem.\n\n Defendant Providence Publications, LLC publishes\nvarious online news sources, including “Workers’ Comp\nExecutive” (WCE). WCE features news reports and offers\nonline seminars, some of which feature Defendants\nLichtenegger and Debber.\n\n Plaintiff alleged that, beginning in November 2015,\nDefendants began offering a seminar (both online and on\nDVD) that “uses the APPLIED UNDERWRITERS and\nEQUITYCOMP marks in the title of the webcast.” The marks\nwere also featured in various promotional materials,\nincluding a widely distributed email advertisement.\nDefendants used these marks “without Applied\nUnderwriters’ authority or permission and in reckless\ndisregard of [its] federal trademark registrations and its\nrights.” Plaintiff also claimed that Defendants “specifically\nand intentionally target[ed] their marketing and advertising\n. . . to independent brokers and the business organizations\nthat they serve who use Plaintiff’s services.” In its\ncomplaint, Plaintiff averred that “[a]s a result of the\nlikelihood of confusion caused by Defendants’ unauthorized\nuse of” the marks, “Defendants are able to attract customers\nwho mistakenly believe that they will attend a program\nsponsored or affiliated with Applied Underwriters,” leading\nto dilution of the marks.\n\nII. Procedural Background\n\n Plaintiff filed a complaint asserting causes of action for\nfederal trademark infringement and dilution, false\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 7\n\ndesignation of origin under the Lanham Act, and federal and\nstate unfair competition. The next day, Plaintiff filed a\nmotion for a temporary restraining order, which the district\ncourt denied.\n\n Defendants moved to dismiss under Rule 12(b)(6),\narguing that their use of Plaintiff’s marks was protected\nunder the First Amendment, constituted nominal fair use,\nand satisfied the statutory defenses to trademark dilution.\nDefendants also filed a request for judicial notice that the\ndistrict court granted in part and denied in part, taking\njudicial notice only of the DVD of the seminar. Plaintiff in\nturn filed an opposition to Defendants’ motion to dismiss,\naccompanied by a declaration and additional evidence not\nincluded in its complaint. 1\n\n On July 6, 2017, the district court granted Defendants’\nmotion to dismiss, concluding that “Defendants’ use of the\nTrademarks is nominative fair use.” At Plaintiff’s request,\nthe court granted leave to amend the complaint within\n30 days. The district court docket confirms that Plaintiff\nneither filed an amended complaint (timely or otherwise) nor\nannounced an intent not to do so. Consequently, on August\n10, 2017, the district court issued a minute order that read:\n“In light of Plaintiff’s failure to file an Amended Complaint\npursuant to the Court’s Order (ECF No. [31]), this case is\nhereby DISMISSED. CASE CLOSED.” The clerk of court\n\n\n\n 1\n Plaintiff did not seek judicial notice of this additional evidence and,\nas Defendants note, “the District Court did not cite or rely on this\nevidence in its ruling.” Because this evidence was not part of the\ncomplaint or submitted for judicial notice, we will disregard it at this\nstage. See Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994),\noverruled on other grounds by Galbraith v. County of Santa Clara,\n307 F.3d 1119 (9th Cir. 2002).\n\f8 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nsubsequently entered judgment “in accordance with the\nCourt’s Order filed on 8/10/2017.”\n\n This appeal followed. In their briefs, Plaintiff and\nDefendants disputed whether the district court dismissed\nPlaintiff’s complaint pursuant to Rule 12(b)(6), in which\ncase we would review the sufficiency of the complaint de\nnovo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), or\nas a sanction under Rule 41(b), which we would review for\nabuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983,\n986 (9th Cir. 1999). To remedy this confusion, we remanded\n\n this case for the limited purpose of allowing\n the district court to clarify whether the\n complaint was dismissed as a sanction under\n Federal Rule of Civil Procedure 41 or for\n failure to state a claim under Rule 12(b)(6),\n and, if the final dismissal was intended as a\n sanction under Rule 41(b), to state the\n reasoning behind the selection of that\n sanction.\n\nBefore oral argument in this appeal, the district court\nresponded with a clarification order, in which it explained\nthat it dismissed Plaintiff’s complaint as a sanction pursuant\nto Rule 41(b), and analyzed the five pertinent factors as\nenumerated in Yourish. It concluded that “[t]hree of the five\nfactors strongly favored dismissal, and this Court dismissed\nthe case under Rule 41(b) as a sanction for failure to comply\nwith the Court’s order.”\n\n STANDARD OF REVIEW AND JURISDICTION\n\n “We review de novo a district court’s dismissal of a\ncomplaint under [Rule] 12(b)(6) for failure to state a claim,”\nStarr, 652 F.3d at 1205, and “[w]e review the district court’s\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 9\n\ndismissal of a complaint pursuant to Rule 41(b) for abuse of\ndiscretion,” Yourish, 191 F.3d at 986. We have jurisdiction\npursuant to 28 U.S.C. § 1291—regardless of the basis for the\ndistrict court’s dismissal of Plaintiff’s complaint, its entry of\njudgment constituted a final decision of the court. Cf. De Tie\nv. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)\n(“The dismissal of an action, even when it is without\nprejudice, is a final order.”).\n\n ANALYSIS\n\nI. Rule 41(b)\n\n Under Rule 41(b), “[i]f the plaintiff fails to prosecute or\nto comply with . . . a court order”—such as by failing to file\nan amended complaint after being ordered to do so—“a\ndefendant may move to dismiss the action or any claim\nagainst it. Unless the dismissal order states otherwise, [such]\na dismissal . . . operates as an adjudication on the merits.”\nFed. R. Civ. P. 41(b). We have noted that “[w]hen a district\ncourt dismisses an action because the plaintiff has not filed\nan amended complaint after being given leave to do so and\nhas not notified the court of his intention not to file an\namended complaint, we may deem the dismissal to be for\nfailure to comply with a court order based on Federal Rule\nof Civil Procedure 41(b).” Harris v. Mangum, 863 F.3d\n1133, 1142 (9th Cir. 2017).\n\n In the order clarifying its dismissal of Plaintiff’s\ncomplaint, the district court analyzed the five factors that\nmust be considered before dismissing a case pursuant to\nRule 41(b): “(1) the public’s interest in expeditious\nresolution of litigation; (2) the court’s need to manage its\ndocket; (3) the risk of prejudice to the defendants; (4) the\npublic policy favoring disposition of cases on their merits;\nand (5) the availability of less drastic alternatives.” Yourish,\n\f10 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n191 F.3d at 990 (quoting Hernandez v. City of El Monte,\n138 F.3d 393, 399 (9th Cir. 1998)). 2 However, the district\ncourt did not consider whether Rule 41(b) was even\napplicable in this case, given that Plaintiff was granted\nleave—not ordered—to amend its complaint. We hold that\nthe district court abused its discretion when it invoked Rule\n41(b) under these circumstances.\n\n We are not the first panel to address this question. See,\ne.g., Yourish, 191 F.3d at 986 n.4 (“This approach is\nsomewhat problematic because a plaintiff’s failure to amend\na complaint is not easily described as disobeying a court\norder because the plaintiff has the right simply to allow the\ncomplaint to be dismissed.”). Decades ago, the Fifth Circuit\nconsidered a similar factual scenario and concluded that\n\n [h]ad the District Judge intended what he\n wrote literally—that the action was being\n dismissed because the March order had been\n “disobeyed”—he would have been guilty of\n an abuse of his Rule 41(b) discretion to\n dismiss. Dismissal of a case for disobedience\n of a court order is an exceedingly harsh\n sanction which should be imposed only in\n extreme cases, and then only after\n exploration of lesser sanctions. Failure to\n amend a complaint after it has been dismissed\n with leave to amend is not such an extreme\n\n 2\n “Although it is preferred, it is not required that the district court\nmake explicit findings in order to show that it has considered these\nfactors and we may review the record independently to determine if the\ndistrict court has abused its discretion.” Yourish, 191 F.3d at 990\n(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).\nAccordingly, the fact that the district court initially dismissed the\ncomplaint without any explicit analysis of these five factors did not\nconstitute an abuse of discretion.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 11\n\n case of disobedience, if it is disobedience at\n all.\n\nMann v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,\n488 F.2d 75, 76 (5th Cir. 1973) (per curiam) (citations\nomitted). More recently, dissenting in Brown v. Rawson-\nNeal Psychiatric Hospital, Judge Graber concluded that a\ndistrict court’s dismissal with prejudice under Rule 41(b)\n“was an abuse of discretion for the simple reason that, under\nour precedents, Plaintiff did not fail to comply with a court\norder.” 840 F.3d 1146, 1150 (9th Cir. 2016) (Graber, J.,\ndissenting). Judge Graber noted that our precedent makes\nclear that “[w]hen a district court requires a plaintiff to file\nan amended complaint, the court may dismiss the case under\nRule 41(b) if the plaintiff fails to follow the requirement.”\nId.; see also Edwards v. Marin Park, Inc., 356 F.3d 1058,\n1065 (9th Cir. 2004) (“The failure of the plaintiff eventually\nto respond to the court’s ultimatum—either by amending the\ncomplaint or by indicating to the court that it will not do so—\nis properly met with the sanction of a Rule 41(b) dismissal.”\n(emphasis added)); Yourish, 191 F.3d at 986 n.2 (noting that\nthe district court order stated that an “[a]mended complaint\nshall be filed within 60 days” (emphasis added)); Ferdik v.\nBonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that\nthe court “ordered” and “required” the filing of a second\namended complaint). However, in Brown, as in this case,\n\n the district court did not require Plaintiff to\n file an amended complaint, nor did the court\n require in the alternative that Plaintiff file an\n amended complaint or some other specified\n document. The court’s order denying\n Plaintiff’s motion for reconsideration merely\n granted leave to amend, with permissive text\n allowing Plaintiff to amend or not . . . .\n\f12 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n Given the court’s failure to cite Rule 41(b),\n the permissive wording of its orders, and\n Plaintiff’s desire to obtain appellate review of\n the Rule 12(b)(6) dismissal as discussed in\n the motion for reconsideration, he\n understandably hoped for a dismissal, which\n he reasonably thought would be under Rule\n 12(b)(6). After all, the district court never\n ordered Plaintiff to file an amended\n complaint, as the courts had in Yourish or\n Ferdik. Leave to amend was granted; failure\n to amend did not constitute noncompliance\n with a court order. Simply put, there was no\n “ultimatum” within the meaning of our\n precedents, and so the district court abused its\n discretion in dismissing Plaintiff’s federal\n claims under Rule 41(b).\n\n840 F.3d at 1151 (Graber, J., dissenting). 3\n\n We agree with Judge Graber’s reasoning. By its plain\ntext, a Rule 41(b) dismissal under these circumstances\nrequires “a court order” with which an offending plaintiff\nfailed to comply. Fed. R. Civ. P. 41(b). 4 Here, there was no\n\n 3\n Notably, the Brown majority did not address this issue and instead\nbased its holding on the plaintiff’s failure to raise Rule 41(b) in his\nopening brief. See 840 F.3d at 1148–49. Thus, we are not bound by that\ncase to treat a permissive invitation to amend as a court order requiring\namendment.\n 4\n Rule 41(b) also permits dismissal when a plaintiff fails to prosecute\nits case or comply with the Federal Rules of Civil Procedure. See Fed.\nR. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with\nthese rules or a court order, a defendant may move to dismiss the action\nor any claim against it.”). However, these alternative bases for dismissal\nare not at issue in this appeal because the district court specifically stated\nthat its dismissal was based on Plaintiff’s failure to follow its court order.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 13\n\nsuch order—the district court did not require that Plaintiff\nfile an amended complaint following the initial Rule\n12(b)(6) dismissal. Instead, the court’s order concluded as\nfollows: “Plaintiff is GRANTED leave to amend within\nthirty (30) days of this Order.” The district court did not\nmandate the filing of an amended complaint, and it did not\nindicate that failure to do so would result in dismissal of the\ncomplaint pursuant to Rule 41(b). See Oliva v. Sullivan,\n958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an\nobligation to warn the plaintiff that dismissal is imminent.”).\n\n The district court’s dismissal under Rule 41(b) required\nnoncompliance with a court order. A grant of leave to amend\nis not an order to amend. Therefore, Rule 41(b) did not apply\nhere, and the district court’s dismissal on this ground\nconstituted an abuse of discretion.\n\nII. How to Proceed?\n\n Having concluded that the district court abused its\ndiscretion when it dismissed Plaintiff’s complaint as a\nsanction pursuant to Rule 41(b), we must now determine the\nproper course of action moving forward.\n\n One option is to remand. Upon remand, the district court\nwould presumably either again dismiss Plaintiff’s complaint\nunder Rule 12(b)(6), based on reasoning articulated in its\nprior order, or again grant Plaintiff leave to amend—an\nopportunity of which Plaintiff would not avail itself, given\nits stated desire to appeal the district court’s original Rule\n12(b)(6) dismissal. Remand would therefore require the\nparties to engage in additional and redundant briefing, and\nwould add years to their litigation. Nothing substantive\nwould be gained, and “remand . . . would be an unnecessary\nwaste of judicial and litigant resources.” O’Reilly v. Bd. of\nAppeals, 942 F.2d 281, 284 (4th Cir. 1991).\n\f14 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n We conclude that remand would not serve the interest of\njudicial economy, and fortunately, it is not required. As the\nSupreme Court explained,\n\n [I]n reviewing the decision of a lower court,\n it must be affirmed if the result is correct\n ‘although the lower court relied upon a wrong\n ground or gave a wrong reason.’ The reason\n for this rule is obvious. It would be wasteful\n to send a case back to a lower court to\n reinstate a decision which it had already\n made but which the appellate court\n concluded should properly be based on\n another ground within the power of the\n appellate court to formulate.\n\nSEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (citation\nomitted) (quoting Helvering v. Gowran, 302 U.S. 238, 245\n(1937)); see also Alcaraz v. Block, 746 F.2d 593, 602 (9th\nCir. 1984) (“We will affirm the district court’s correct legal\nresults, even if reached for the wrong reasons.”). Here, we\nhave before us the correct result; as discussed below,\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use, and thus dismissal was required. We also have the\ndistrict court’s analysis in its Rule 12(b)(6) order, which still\nstands and has not been altered or retracted. Therefore, we\nconclude that dismissal of Plaintiff’s complaint was the\ncorrect legal result, even if the district court reached it for\nthe wrong reason—as a sanction under Rule 41(b)—instead\nof the correct reason—as a dismissal under Rule 12(b)(6).\nAccordingly, we do not need to remand the action, and will\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 15\n\ninstead proceed with analysis of the district court’s dismissal\npursuant to Rule 12(b)(6). 5\n\nIII. Rule 12(b)(6)\n\n Defendants maintain, as the district court concluded, that\ntheir use of Plaintiff’s marks constituted nominative fair use.\nWe agree.\n\n Pursuant to this defense, the “nominative use of a mark—\nwhere the only word reasonably available to describe a\nparticular thing is pressed into service—lies outside the\nstrictures of trademark law: Because it does not implicate the\nsource-identification function that is the purpose of\ntrademark, it does not constitute unfair competition.” New\nKids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302,\n308 (9th Cir. 1992). 6 New Kids held that\n\n\n 5\n We note that this approach is consistent with the basic principles\nof finality that undergird our appellate jurisdiction. The district court’s\nRule 12(b)(6) order dispensed with all of Plaintiff’s claims, and hence\nwas “a full adjudication of the issues.” Nat’l Distrib. Agency v.\nNationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). If not for\nthe court’s grant of leave to amend—which, again, Plaintiff has made\nclear it had no intention of undertaking—the dismissal would have\n“clearly evidence[d] the judge’s intention that it be the court’s final act\nin the matter.” Id. (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir.\n1990)). Accordingly, we are satisfied that the Rule 12(b)(6) order is\nsufficiently final for our review, since Plaintiff’s refusal to amend\nensures that the decision was not “tentative, informal or incomplete,” and\nis thus reviewable. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,\n1101 (9th Cir. 1998) (quoting Cohen v. Beneficial Indus. Loan Corp.,\n337 U.S. 541, 546 (1949)).\n 6\n Accordingly, although Plaintiff’s complaint included various\ncauses of action—including trademark infringement and dilution and\nfederal and state unfair competition—the nominative fair use defense\napplied to all of its claims. See Playboy Enters., Inc. v. Welles, 279 F.3d\n\f16 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n a commercial user is entitled to a nominative\n fair use defense provided he meets the\n following three requirements: First, the\n product or service in question must be one not\n readily identifiable without use of the\n trademark; second, only so much of the mark\n or marks may be used as is reasonably\n necessary to identify the product or service;\n and third, the user must do nothing that\n would, in conjunction with the mark, suggest\n sponsorship or endorsement by the trademark\n holder.\n\nId. (footnote omitted). If the nominative use of a mark\nsatisfies these three factors, then there is no infringement;\n“[i]f the nominative use does not satisfy all the New Kids\nfactors, the district court may order defendants to modify\ntheir use of the mark so that all three factors are satisfied.”\nToyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171,\n1176 (9th Cir. 2010).\n\n Although Plaintiff’s primary contention is that\nDefendants’ use of its marks failed to satisfy the third New\nKids factor, it challenges the district court’s conclusions as\nto all three. We will thus consider each factor in turn.\n\n\n796, 806 (9th Cir. 2002) (“Uses that do not create an improper\nassociation between a mark and a new product but merely identify the\ntrademark holder’s products should be excepted from the reach of the\nanti-dilution statute.”); Cleary v. News Corp., 30 F.3d 1255, 1262–63\n(9th Cir. 1994) (“This Circuit has consistently held that state common\nlaw claims of unfair competition and actions pursuant to California\nBusiness and Professions Code § 17200 are ‘substantially congruent’ to\nclaims made under the Lanham Act.” (quoting Acad. of Motion Picture\nArts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1457\n(9th Cir. 1991))).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 17\n\n A. Whether Plaintiff’s Service Was Readily\n Identifiable Without Use of the Trademarks\n\n Plaintiff contends that “Defendants did not need to use\nPlaintiff’s trademarks to identify their Program.” It\nconcedes that “the Program apparently addresses Plaintiff’s\nworkers’ compensation product in particular,” but\nnonetheless argues that “Defendants could have come up\nwith another readily understood generic or descriptive\nname.”\n\n The email attached to the complaint demonstrates that\nDefendants’ seminar exclusively critiqued Plaintiff’s\nEquityComp service. The title of the seminar was “Applied\nUnderwriters’ EquityComp® Program Like it, Leave it, or\nLet it be?” and its subtitle read, “Learn the best strategies for\nselling, competing with, or helping a prospect out of\nEquityComp® mid-term.” We have previously determined\nthat a descriptive alternative—such as Plaintiff’s proposed\n“Risk Sharing Workers’ Comp Program” or “Captive\nWorkers’ Comp Arrangement Program”—need not be\nemployed where use of a mark is necessary to refer to a\nspecific brand or product. As we explained in Toyota Motor\nSales,\n\n Toyota claims . . . the Tabaris could have\n used a domain name that did not contain the\n Lexus mark. It’s true they could have used\n some other domain name like\n autobroker.com or fastimports.com, or have\n used the text of their website to explain their\n business. But it’s enough to satisfy our test\n for necessity that the Tabaris needed to\n communicate that they specialize in Lexus\n vehicles, and using the Lexus mark in their\n domain names accomplished this goal.\n\f18 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n610 F.3d at 1180; see also Playboy Enters., Inc. v. Welles,\n279 F.3d 796, 802 (9th Cir. 2002) (“[T]here is no other way\nthat Ms. Welles can identify or describe herself and her\nservices without venturing into absurd descriptive phrases.\nTo describe herself as the ‘nude model selected by Mr.\nHefner’s magazine as its number-one prototypical woman\nfor the year 1981’ would be impractical as well as ineffectual\nin identifying Terri Welles to the public.”). 7\n\n Such is the case here. The seminar did not discuss\nworkers’ compensation programs generally, but rather\nPlaintiff’s specific offering. Therefore, Defendants “needed\nto communicate” that they critiqued the EquityComp\nprogram, and so using the mark in the title and description\nof the program “accomplished this goal.” Toyota Motor\nSales, 610 F.3d at 1180.\n\n In its reply brief, Plaintiff makes the argument that, even\nif the use of the “EquityComp” mark satisfied the first New\nKids factor, the use of the “Applied Underwriters” mark did\nnot. Plaintiff suggests that “[t]he addition of the ‘Applied\nUnderwriters’ mark does nothing to identify the content of\nthe seminar but instead serves solely to create the impression\n\n 7\n Plaintiff suggests that “Defendants’ attempt to apply Welles to their\nseminar is circular” because “[o]n one hand, defendants insist that they\ncould not possibly have described their seminar without using plaintiff’s\nmark,” but on the other hand, “if a more generic descriptor could not be\nused to describe the seminar because the subject of the seminar [was]\nlimited to EquityComp®, then the suggestion of sponsorship is\nreinforced. After all, a reasonably prudent consumer could assume that\na seminar focused on a single product is sponsored or endorsed by the\nentity selling that product.” However, this reasoning would essentially\nvitiate the nominative fair use defense, because it suggests that any time\nthe first New Kids factor is satisfied—in other words, when use of a mark\nis needed for identification purposes—then the third factor could never\nbe satisfied, because endorsement would always be presupposed in such\ncases.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 19\n\nthat Applied Underwriters is sponsoring or endorsing a\nseminar about its own EquityComp® product.” It relies on\nPlayboy Enterprises, in which we determined that while use\nof the trademarked phrase “Playboy Playmate of the Year\n1981” was permissible because it was needed for\nidentification purposes, use of another potentially protected\nphrase—“PMOY ‘81”—was not. 279 F.3d at 804. We\nreasoned that “[t]he repeated depiction of ‘PMOY ‘81’ is not\nnecessary to describe Welles. ‘Playboy Playmate of the\nYear 1981’ is quite adequate.” Id. Here, similarly, Plaintiff\nsuggests that the “EquityComp” mark identified the service\nthat Defendants analyzed in their seminar, and thus the\n“Applied Underwriters” mark did not serve that function.\nBut this argument falls short. Defendants’ use of the\n“Applied Underwriters” mark was not necessarily redundant\nbecause it was used to identify the company that offered\nEquityComp—a company that was itself critiqued in the\nseminar. We therefore find this case distinguishable from\nPlayboy Enterprises, where use of the “PMOY ‘81” mark\nserved no additional identification purpose.\n\n Accordingly, because both marks were needed to\nidentify the service (and company) that Defendants analyzed\nin their seminar, the district court correctly determined that\nthe first New Kids factor was satisfied.\n\n B. Whether Defendants Used Only So Much of the\n Trademarks As Was Reasonably Necessary\n\n Plaintiff argues that Defendants’ use of its marks failed\nthe second factor because the email attached to the complaint\nfeatured several uses of both marks. That argument relies on\na misunderstanding of this factor. The second New Kids\nfactor does not implicate the number of uses of a mark, but\nrather the nature of the uses. In clarifying it, we explained\nthat “a soft drink competitor would be entitled to compare\n\f20 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nits product to Coca-Cola or Coke, but would not be entitled\nto use Coca-Cola’s distinctive lettering.” New Kids,\n971 F.2d at 308 n.7; see also Playboy Enters., 279 F.3d at\n802 (“Welles’ banner advertisements and headlines satisfy\nthis element because they use only the trademarked words,\nnot the font or symbols associated with the trademarks.”);\nVolkswagenwerk Aktiengesellschaft v. Church, 411 F.2d\n350, 352 (9th Cir. 1969) (noting that defendant “did not use\nVolkswagen’s distinctive lettering style or color scheme, nor\ndid he display the encircled ‘VW’ emblem”); cf. Toyota\nMotor Sales, 610 F.3d at 1181 (“Toyota suggests that use of\nthe stylized Lexus mark and ‘Lexus L’ logo was more use of\nthe mark than necessary and suggested sponsorship or\nendorsement by Toyota. This is true: The Tabaris could\nadequately communicate their message without using the\nvisual trappings of the Lexus brand.”). Our case law\ndemonstrates that analysis of this factor should focus not on\nthe number of uses of Plaintiffs’ marks, but on whether\nDefendants used more of each individual mark than was\nnecessary in terms of font and stylization.\n\n Here, Defendants correctly note that the email “did not\nuse any part of Plaintiff’s service marks, the distinctive\nlettering or design; rather they used only the term ‘Applied\nUnderwriters’ and ‘EquityComp’ in describing its webcast.”\nThe email did not contain, for example, the illustration of a\nSt. Bernard or the stylized lettering of Plaintiff’s registered\nmarks. It did not even employ the distinctive small-caps\nrendering of the “APPLIED UNDERWRITERS” and\n“EQUITYCOMP” marks. Defendants used only the words\nthemselves, which were, as discussed above, necessary to\nidentify Plaintiff’s product. Therefore, the second New Kids\nfactor was satisfied.\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 21\n\n C. Whether Use of the Trademarks Suggested\n Sponsorship or Endorsement\n\n Plaintiff asserts that, “[s]imply put, Defendants’\nadvertising creates confusion.”\n\n At the outset, it claims that “[t]he district court erred by\nignoring Plaintiff’s evidence of actual confusion in its Order,\nwhich nowhere mentions the actual confusion.” However,\nin its complaint, Plaintiff pleaded no such facts of actual\nconfusion. Instead, the complaint stated only that\n“Defendants’ improper use of the APPLIED\nUNDERWRITERS IP has caused, and will continue to\ncause, damaging and actual confusion among the public.”\nThat conclusory statement constituted the only evidence of\nconfusion contained in the complaint, and at no other point\ndid Plaintiff plead facts suggesting that use of its marks led\nconsumers to assume that it sponsored or endorsed\nDefendants’ seminar. 8\n\n Plaintiff also notes that Defendants employed the ®\nregistration symbol in conjunction with their uses of the\n“Applied Underwriters” and “EquityComp” marks, which it\nclaims “makes the use of the trademark look more official or\nauthorized, because one would expect that the trademark\nowner or its authorized users would use the registration\nsymbol ®, not unauthorized users.” This is not a particularly\ncompelling argument. Although Defendants did use the ®\nsymbol, the email attached to the complaint clarified that\n 8\n In its opposition to Defendants’ motion to dismiss, Plaintiff\nreferenced a “confused potential customer” who reached out to it.\nHowever, that allegation was not included in the complaint, and so it\ncannot be considered. See Arpin v. Santa Clara Valley Transp. Agency,\n261 F.3d 912, 925 (9th Cir. 2001) (“[E]xtraneous evidence should not be\nconsidered in ruling on a motion to dismiss.”).\n\f22 APPLIED UNDERWRITERS V. LICHTENEGGER\n\n“EquityComp is the registered trademark of Applied\nUnderwriters, Inc.” 9 Moreover, in the body of the email (and\non the DVD cover), the title of the seminar—which did\nfeature both the “Applied Underwriters” and “EquityComp”\nmarks—was in regular font beneath a stylized logo for\nWCE:\n\n\n\n\nThis further suggested that it was WCE—not Plaintiff—that\nsponsored the seminar, which discounts the possibility of\nany confusion.\n\n Furthermore, Defendants correctly argue that any\nlikelihood of confusion is implausible due to the content of\n\n 9\n At least one district court has dismissed a trademark infringement\nclaim under similar circumstances. See Architectural Mailboxes, LLC v.\nEpoch Design, LLC, No. 10cv974 DMS (CAB), 2011 WL 1630809, at\n3 (S.D. Cal. Apr. 28, 2011) (“[T]he exhibits attached to the Complaint\nlead to the same conclusion, namely that Plaintiff has failed to allege\nsufficient facts to demonstrate a likelihood of confusion. The excerpts\nfrom Defendant’s website clearly identify Plaintiff as the manufacturer\nof the Oasis Jr. mailbox. The website even goes so far as to state,\n‘Oasis® is a registered trademark of Architectural Mailboxes.’” (citation\nomitted)).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 23\n\nthe email and the seminar itself. The text of the email\nreferred to EquityComp as a “sophisticated yet controversial\nprogram,” and Lichtenegger was billed as a lawyer who “for\n15 years has specialized in Investment and Commercial\nFraud recovery” and “represents a panoply of employers vs\nApplied and is well versed in their math and how their\nprogram works.” Debber, for his part, was credited as the\nperson “who broke the recent spate of stories about Applied\nUnderwriters’ EquityComp Program. Only that other mild\nmannered reporter, Clark Kent, exceeds Dale’s commitment\nto ‘Truth, Justice and the American Way.’” The seminar’s\nsubtitle advertised that users can “[l]earn the best strategies\nfor . . . helping a prospect out of EquityComp® mid-term,”\nand a reasonable consumer in this context would surely\nunderstand that Plaintiff would not be in the business of\nhelping customers out of its programs. 10\n\n We have held that criticism of a product tends to negate\nthe possibility of confusion as to sponsorship and\nendorsement. See New Kids, 971 F.2d at 308–09\n(“[N]othing in the announcements suggests joint\nsponsorship or endorsement by the New Kids. The USA\nToday announcement implies quite the contrary by asking\nwhether the New Kids might be ‘a turn off.’”). 11 Here, it\n\n 10\n Additionally, the list of questions that the seminar purportedly\nanswered included several that Plaintiff would be unlikely to field, such\nas “If you have a client in the program who is unhappy, should you get\nthem out and if so, how to know when?” and “How to compete against\nthe program—at the start and mid-term.”\n 11\n District courts have reached similar conclusions. See, e.g., 1800\nGET THIN, LLC v. Hiltzik, No. CV11-00505 ODW (PJWx), 2011 WL\n3206486, at 3 (C.D. Cal. July 25, 2011) (determining on motion to\ndismiss that “Defendants have not done anything that would suggest\nPlaintiff has sponsored or endorsed Defendants’ use of Plaintiff’s\nclaimed trademark because the articles and comments . . . do not portray\n\f24 APPLIED UNDERWRITERS V. LICHTENEGGER\n\nwas clear from the text of the email that the seminar was a\ncritique of Plaintiff’s program, and it is simply not plausible\nthat it could have been construed as anything else.\n\n It is true, as Plaintiff notes, that “[t]he existence of\nconsumer confusion is a fact-intensive analysis that does not\nlend itself to a motion to dismiss.” See, e.g., Williams v.\nGerber Prods. Co., 552 F.3d 934, 938–39 (9th Cir. 2008).\nEven so, based on the critical nature of the presentation, the\ndisclaimer included in the text, and the fact that Defendants\nadvertised the seminar under the WCE banner, we cannot\nconclude that a “reasonably prudent consumer” in the\nrelevant marketplace, Toyota Motor Sales, 610 F.3d at 1176,\ncould have interpreted Defendants’ seminar as being\nendorsed or sponsored by Plaintiff. The complaint contained\nonly scant, conclusory allegations of consumer confusion,\nwhich, even when considered in the light most favorable to\nPlaintiff, were belied by the allegedly infringing email\nattached to the complaint, which demonstrated nominative\nfair use. Although Plaintiff introduced additional evidence\nthat might change this conclusion in its opposition to\nDefendants’ motion to dismiss, those additional facts cannot\nbe considered because they were not included in the\noperative pleading. The third New Kids factor was therefore\nsatisfied.\n\n\n\n\nPlaintiff in a positive light”); Patmont Motor Werks, Inc. v. Gateway\nMarine, Inc., No. C 96-2703 TEH, 1997 WL 811770, at *4 (N.D. Cal.\nDec. 18, 1997) (“The third and final requirement is met because nothing\nin Anthony DeBartolo’s website could possibly be construed to indicate\nPatmont’s sponsorship or endorsement. Indeed, the Court would find\nincredible any argument to the contrary given the website’s\ndisparagement of Go-Peds as unsafe and of Patmont management as\ncriminally anti-competitive.”).\n\f APPLIED UNDERWRITERS V. LICHTENEGGER 25\n\n D. Summation\n\n Although it is a “rare situation in which granting a\nmotion to dismiss is appropriate” when a case involves\nquestions of consumer confusion, Williams, 552 F.3d at 939,\nthe district court properly concluded that Plaintiff failed to\nstate claims for which relief could be granted because, on the\nface of the complaint, it was clear that Defendants’ alleged\ninfringement constituted nominative fair use.\n\n CONCLUSION\n\n We conclude that the district court abused its discretion\nwhen it dismissed Plaintiff’s complaint as a sanction\npursuant to Rule 41(b) without actually ordering Plaintiff to\namend its complaint. However, we also conclude that\ndismissal was nevertheless appropriate, because\nDefendants’ use of Plaintiff’s marks constituted nominative\nfair use. Accordingly, we AFFIRM the district court’s\ndismissal of Plaintiff’s complaint.\n[END_CASE]", "role": "user" } ]
4,582,011		Yahoo! Inc. v. National Union Fire Insurance	2019-01-16	17-16452	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "The Honorable Jane A. Restani, Judge for the United States Court", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n YAHOO! INC., a Delaware No. 17-16452\n corporation,\n Plaintiff-Appellant, D.C. No.\n 5:17-cv-00447-NC\n v.\n\n NATIONAL UNION FIRE ORDER\n INSURANCE COMPANY OF CERTIFYING\n PITTSBURGH, PENNSYLVANIA, a QUESTION TO\n Pennsylvania corporation, THE CALIFORNIA\n Defendant-Appellee. SUPREME COURT\n\n\n\n Filed January 16, 2019\n\n Before: MILAN D. SMITH, JR., and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Order\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\n SUMMARY \n\n\n Insurance Law / Right of Privacy\n\n The panel certified to the California Supreme Court the\nfollowing question:\n\n Does a commercial liability policy that\n covers “personal injury,” defined as “injury .\n . . arising out of . . . [o]ral or written\n publication . . . of material that violates a\n person’s right of privacy,” trigger the\n insurer’s duty to defend the insured against a\n claim that the insured violated the Telephone\n Consumer Protection Act by sending\n unsolicited text message advertisements that\n did not reveal any private information?\n\n\n ORDER\n\n We ask the California Supreme Court to resolve an\nimportant and unresolved question of state law. The right to\nprivacy is generally understood to encompass both a right\n“to be free from unwanted intrusions,” known as the right to\nseclusion, as well as a right “to keep personal information\nconfidential,” known as the right to secrecy. State Farm\nGen. Ins. v. JT’s Frames, Inc., 104 Cal. Rptr. 3d 573, 585\n(Ct. App. 2010); see ACS Sys., Inc. v. St. Paul Fire & Marine\nIns., 53 Cal. Rptr. 3d 786, 794–95 (Ct. App. 2007).\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 3\n\n Many commercial general liability policies cover “injury\n. . . arising out of . . . [o]ral or written publication . . . of\nmaterial that violates a person’s right of privacy.” See\nPenzer v. Transp. Ins., 545 F.3d 1303, 1311 (11th Cir. 2008)\n(discussing this “widely used language”). Courts\nnationwide are divided as to whether such a provision covers\ninjury solely to the right to seclusion, such as where the\ninsured’s unsolicited advertising message disturbs the\nrecipient’s privacy but does not reveal a third party’s private\ninformation. Compare, e.g., Columbia Cas. Co. v. HIAR\nHolding, L.L.C., 411 S.W.3d 258, 269–70 (Mo. 2013)\n(finding coverage), Penzer v. Transp. Ins., 29 So. 3d 1000,\n1002 (Fla. 2010) (same), and Terra Nova Ins. v. Fray-\nWitzer, 869 N.E.2d 565, 574 (Mass. 2007) (same), with, e.g.,\nAuto-Owners Ins. v. Websolv Computing, Inc., 580 F.3d 543,\n550–51 (7th Cir. 2009) (finding no coverage under Iowa\nlaw), and Res. Bankshares Corp. v. St. Paul Mercury Ins.,\n407 F.3d 631, 642 (4th Cir. 2005) (same under Virginia law).\nOf the two California courts to address this issue, ACS\nSystems suggested that such a provision would provide\ncoverage, see 53 Cal. Rptr. 3d at 798, but JT’s Frames held\nthat it does not, see 104 Cal. Rptr. 3d at 588.\n\n This issue frequently arises in claims under the\nTelephone Consumer Protection Act of 1991 (“TCPA”), a\nstatute which generally prohibits the use of “any . . . device\nto send, to a telephone facsimile machine, an unsolicited\nadvertisement.” 1 47 U.S.C. § 227(b)(1)(C). The TCPA’s\nexplicit purpose “is to protect privacy rights,” L.A. Lakers,\nInc. v. Fed. Ins., 869 F.3d 795, 803 (9th Cir. 2017) (lead\n\n 1\n The TCPA permits unsolicited advertisements as part of an\nestablished business relationship or with notice of the recipient’s right to\nopt out of future advertising. See 47 U.S.C. § 227(b)(1)(C), (b)(2)(D)–\n(E).\n\f4 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nopinion); see 47 U.S.C. § 227(b)(2)(C) (referencing “the\nprivacy rights that [the TCPA] is intended to protect”)—\nspecifically, the right to seclusion. See Park Univ. Enters.,\nInc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1249\n(10th Cir. 2006) (“Courts have consistently held the TCPA\nprotects a species of privacy interest in the sense of\nseclusion.”). Because the TCPA does not implicate\nviolations of the right to secrecy, insurance coverage of\nTCPA liability turns on whether “publication . . . of material\nthat violates a person’s right of privacy” applies to the right\nto secrecy, seclusion, or both.\n\n We need guidance in applying California’s rules\ngoverning the interpretation of insurance policies in this\ncontext. Although we may hazard a guess, the tension\nbetween the two California Court of Appeal decisions\n“inhibit[s] our ability to ‘predict how the [California\nSupreme Court] would decide,’ as we are bound to do.”\nPatterson v. City of Yuba City, 884 F.3d 838, 841 (9th Cir.\n2018) (second alteration in Patterson) (quoting McKown v.\nSimon Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012)).\nThe California Supreme Court sometimes looks to decisions\nin other jurisdictions for their persuasive value, see, e.g.,\nPeople v. Wade, 369 P.3d 546, 548 (Cal. 2016); TRB Invs.,\nInc. v. Fireman’s Fund Ins., 145 P.3d 472, 476 (Cal. 2006)\n(reversing Court of Appeal’s construction of insurance\npolicy based in part on “different interpretations of this or\nsimilar language” by out-of-state courts), but the\ninconsistent results from courts outside of California only\nincrease the difficulty in predicting how the California\nSupreme Court would rule. Compare Am. States Ins. v.\nCapital Assocs. of Jackson Cty., Inc., 392 F.3d 939, 940, 943\n(7th Cir. 2004) (holding it was “[s]o clear” under Illinois law\nthat TCPA claims were not “publication of material that\nviolates a person’s right of privacy” that the insurer did not\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 5\n\nneed to provide a defense), with Valley Forge Ins. v.\nSwiderski Elecs., Inc., 860 N.E.2d 307, 323 (Ill. 2006)\n(holding that under Illinois law such a policy provision did\nindeed cover TCPA claims).\n\n I.\n\n Certified Question\n\n Therefore, pursuant to Rule 8.548 of the California Rules\nof Court, we respectfully ask the California Supreme Court\nto exercise its discretion to decide the following certified\nquestion:\n\n Does a commercial liability policy that\n covers “personal injury,” defined as “injury\n . . . arising out of . . . [o]ral or written\n publication . . . of material that violates a\n person’s right of privacy,” trigger the\n insurer’s duty to defend the insured against a\n claim that the insured violated the Telephone\n Consumer Protection Act by sending\n unsolicited text message advertisements that\n did not reveal any private information?\n\n Our phrasing of the question should not restrict the\nCalifornia Supreme Court’s consideration of the issues\ninvolved. The California Supreme Court may rephrase the\nquestion as it sees fit in order to address the parties’\ncontentions. See Cal. R. Ct. 8.548(f)(5). If the California\nSupreme Court agrees to decide this question, we agree to\naccept its decision. See id. R. 8.548(b)(2). We recognize\nthat the California Supreme Court has a substantial caseload,\nand we submit this question because of its significance to the\nmany class actions involving TCPA claims against insureds\n\f6 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nwith these policies and the large amounts of potential\nliability at stake.\n\n II.\n\n Background Facts\n\n National Union sold Yahoo! five consecutive one-year\npolicies for commercial general liability insurance, which\nconsisted of a standard policy form modified by an\nendorsement that the parties negotiated. Subject to certain\nexclusions, the standard policy covered liability for both\n“personal and advertising injury,” defined as injury arising\nout of any of seven specified offenses, including “[o]ral or\nwritten publication, in any manner, of material that violates\na person’s right of privacy.” The standard policy excluded\npersonal and advertising injury arising from the distribution\nof material in violation of the TCPA.\n\n The endorsement modified this coverage in three key\nways. First, it deleted the express exclusion of injuries\narising from TCPA violations. Second, it limited the scope\nof coverage to “personal injury,” which it defined as injury\narising out of any of five offenses:\n\n a. False arrest, detention, or imprisonment;\n\n b. Malicious prosecution;\n\n c. The wrongful eviction from, wrongful entry into, or\n invasion of the right of private occupancy of a room,\n dwelling or premises that a person occupies,\n committed by or on behalf of its owner, landlord or\n lessor;\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 7\n\n d. Oral or written publication, in any manner, of\n material that slanders or libels a person or\n organization or disparages a person’s or\n organization’s goods, products or services; or\n\n e. Oral or written publication, in any manner, of\n material that violates a person’s right of privacy.\n\n Third, the endorsement excluded coverage of\n“advertising injury,” which it defined as injury arising from\nany of four offenses:\n\n a. Oral or written publication, in any manner, of\n material in your “advertisement” that slanders or\n libels a person or organization or disparages a\n person’s or organization’s goods, products or\n services;\n\n b. Oral or written publication, in any manner, of\n material in your “advertisement” that violates a\n person’s right of privacy;\n\n c. The use of another’s advertising idea in your\n “advertisement”; or\n\n d. Infringing upon another’s copyright, trade dress or\n slogan in your “advertisement.”\n\n Yahoo! was a defendant in five putative class actions—\ntwo in California, two in Illinois, and one in Pennsylvania—\nalleging injuries that arose during the time periods covered\nby the National Union policies. All five lawsuits alleged that\nYahoo! violated the TCPA by transmitting unsolicited text\nmessage advertisements to putative class members. The\nCalifornia lawsuits alleged that Yahoo! “invad[ed] [the\nplaintiffs’] privacy” by negligently or willfully sending them\n\f8 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nunsolicited text messages in violation of the TCPA. In\naddition, one of the Illinois lawsuits asserted that the TCPA\nclaim was “an effort to enforce [the plaintiffs’] fundamental\nfederal right to privacy.”\n\n When National Union refused to tender a defense in the\nunderlying TCPA litigation, Yahoo! commenced this action\nfor breach of contract. The district court granted National\nUnion’s motion to dismiss, concluding that the policy’s\ncoverage of personal injury arising out of “publication . . . of\nmaterial that violates a person’s right of privacy” does not\napply to Yahoo!’s TCPA liability.\n\n III.\n\n California Case Law\n\n Two California Courts of Appeal have addressed\nwhether “right of privacy” insurance provisions cover TCPA\nviolations. In ACS Systems, the policy covered “advertising\ninjury” only and the advertising injury offense at issue was\n“[m]aking known to any person or organization written or\nspoken material that violates an individual’s right of\nprivacy.” 53 Cal. Rptr. 3d at 790, 794 (emphasis added).\nThe court interpreted this language “such that the injured\nparty is the one whose private material is made known, not\nthe one to whom the material is made known.” Id. at 795\n(quoting Res. Bankshares, 407 F.3d at 641). Thus, ACS\nSystems held that TCPA claims, which implicate the right to\nseclusion, were not covered under the policy, which was\nlimited to violations of the right to secrecy, because “the\nrecipient of an unauthorized advertising fax has no claim that\n‘material that violates an individual’s right of privacy’ has\nbeen ‘made known’ to a third party.” Id. at 795–96.\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 9\n\n ACS Systems distinguished several cases finding TCPA\ncoverage where the policy language, like that here, covered\nadvertising injury “arising out of . . . oral or written\npublication of material that violates a person’s right of\nprivacy.” Id. at 798 (quoting Park Univ. Enters., Inc. v. Am.\nCas. Co. of Reading, PA, 314 F. Supp. 2d 1094, 1099 (D.\nKan. 2004)). ACS Systems concluded that those cases\ninvolved “differ[ent]” policy language that “did not define\n‘right of privacy’ or ‘oral or written publication.’” Id.; cf.\nSwiderski Elecs., 860 N.E.2d at 322 (finding coverage under\nthe policy language at issue here and observing that\n“wording seems to have been an important factor” in\nResource Bankshares’ opposite result under policy language\nsimilar to that in ACS Systems).\n\n In JT’s Frames, the Court of Appeal considered the\npolicy language that ACS Systems found distinguishable—\nadvertising injury arising from “oral or written publication\nof material that violates a person’s right of privacy”—and\nheld that it did not cover TCPA liability. JT’s Frames,\n104 Cal. Rptr. 3d at 576, 588. In reaching this holding, JT’s\nFrames relied principally on the “last antecedent” canon of\nconstruction, which provides that “qualifying words, phrases\nand clauses are to be applied to the words or phrases\nimmediately preceding and are not to be construed as\nextending to or including others more remote.” People v.\nPennington, 400 P.3d 14, 21 (Cal. 2017) (quoting People v.\nLewis, 181 P.3d 947, 1002 (Cal. 2008)). Applying this rule,\nJT’s Frames concluded that “the phrase ‘that violates a\nperson’s right to privacy’ must be construed to modify the\nword ‘material’” rather than the phrase “publication of\nmaterial.” 104 Cal. Rptr. 3d at 586. The court reasoned that\n“to come within the policies’ definition of advertising injury,\nthe material at issue must ‘violate[] a person’s right to\nprivacy.’” Id. (alteration in original). And that would be the\n\f10 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\ncase “only if the material contained confidential information\nand violated the victim’s right to secrecy.” Id.\n\n Other courts disagree that the last antecedent canon\nnecessarily applies in this context. See Penzer, 29 So. 3d at\n1007 (observing that “the doctrine . . . is not an absolute\nrule” and finding “that the clause ‘that violates a person’s\nright of privacy’ is applicable as much to ‘publication’ as to\n‘material;’ therefore, the clause should be read as applicable\nto all”); Owners Ins. v. European Auto Works, Inc., 695 F.3d\n814, 821 (8th Cir. 2012) (“While it is possible that the\nlimiting phrase was intended to modify only the word\n‘material,’ it is equally possible to read the provision so that\nthe limiting phrase modifies the preceding phrase\n‘publication of material.’”); Cynosure, Inc. v. St. Paul Fire\nand Marine Ins., 645 F.3d 1, 5 n.3 (1st Cir. 2011) (“It is not\nso clear that ‘publication’ would not be fairly read as\nmodified, even with ‘material’ in between.”).\n\n Courts in other jurisdictions also take issue with JT’s\nFrames’ assumption that “material” violates a person’s right\nto privacy only if it reveals that person’s secret information\nto a third party. See Penzer, 29 So. 3d at 1007 (“[E]ven if\nthe phrase ‘that violates a person’s right of privacy’ only\nmodifies the term ‘material,’ it does not follow that only the\nsecrecy right to privacy is implicated because ‘material’\ncould also invade one’s seclusion.”); Fray-Witzer,\n869 N.E.2d at 574 (“In effect, the insurers argue that the\npolicy’s definition of injury should be read to say ‘[o]ral or\nwritten publication of material, the content of which violates\na person’s right of privacy.’”).\n\n JT’s Frames also looked to the provision’s context in the\npolicy as one of four “advertising injury” offenses. 104 Cal.\nRptr. 3d at 587. The other three types of advertising injury\n“all involve[d] injury caused by the information contained in\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 11\n\nthe advertisement.” Id. Given that context, JT’s Frames\nconcluded that the “right of privacy” provision “may most\nreasonably be interpreted as referring to advertising material\nwhose content violates a person’s right of privacy.” Id.\n\n One of the neighboring “advertising injury” offenses in\nJT’s Frames, “oral or written publication of material that\nslanders or libels a person or organization or disparages a\nperson’s or organization’s goods, products or services,” id.,\nis nearly identical to one of the “personal injury” offenses\nhere. However, the other three “personal injury” offenses\ncovered in the policy here—“[f]alse arrest, detention, or\nimprisonment,” “malicious prosecution,” and “wrongful . . .\ninvasion of the right of private occupancy”—are different\nand do not involve injury caused by information in an\nadvertisement. Moreover, the two “personal injury”\noffenses covered here that are similar to “advertising injury”\noffenses covered in the JT’s Frames policy also have\nanalogues in the “advertising injury” offenses here that are\nexcluded from coverage. The difference between the\nparallel provisions in the policy here is that in the\n“advertising injury” offenses, the word “material” is\nimmediately followed by “in your ‘advertisement’” whereas\nthe “personal injury” offenses lack this modification. Thus,\nthere are significant differences between the contextual\nsetting here and in JT’s Frames.\n\n We would greatly benefit from knowing whether the\nCalifornia Supreme Court agrees with JT’s Frames\napplication of the last antecedent rule and to what extent its\ninterpretation of the relevant policy language depends on\nother contextual factors—in particular, the distinction\nbetween personal and advertising injury. We therefore\nrespectfully ask that the California Supreme Court decide the\ncertified question.\n\f12 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\n IV.\n\n Administrative Information\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\n The title of this case is: YAHOO! INC., Plaintiff-\nAppellant v. NATIONAL UNION FIRE INSURANCE\nCOMPANY OF PITTSBURGH, PENNSYLVANIA,\nDefendant-Appellee.\n\n The case number in our court is 17-16452.\n\n Plaintiff-Appellant Yahoo! Inc. is represented by the\nfollowing counsel:\n\n William T. Um\n Jassy Vick Carolan LLP\n 800 Wilshire Boulevard, Suite 800\n Los Angeles, California 90017\n\n Defendant-Appellee National Union Fire Insurance\nCompany of Pittsburgh, Pennsylvania is represented by the\nfollowing counsel:\n\n Jodi S. Green\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 626 Wilshire Boulevard, Suite 1000\n Los Angeles, California 90017\n\n Richard H. Nicolaides, Jr. and Daniel I. Graham, Jr.\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 10 South Wacker, 21st Floor\n Chicago, Illinois 60606\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 13\n\n Matthew Lovell\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 101 Montgomery Street, Suite 2300\n San Francisco, California 94104\n\n We designate Yahoo! Inc. as the petitioner if our request\nfor a decision is granted, as it is the appellant before our\ncourt.\n\n * * *\n\n We direct the Clerk of Court to transmit immediately to\nthe California Supreme Court, under official seal of the\nUnited States Court of Appeals for the Ninth Circuit, copies\nof all relevant briefs and excerpts of record, as well as an\noriginal and 10 copies of this order, with a certificate of\nservice on the parties. See Cal. R. Ct. 8.548(c)–(d).\n\n This case is withdrawn from submission and will be\nresubmitted following receipt of the California Supreme\nCourt’s opinion on the certified question or notification that\nit declines to answer the certified question. The Clerk of\nCourt shall administratively close this docket pending a\nruling by the California Supreme Court. The panel shall\nretain jurisdiction over further proceedings in this court.\n\n The parties shall notify the Clerk of Court within one\nweek after the California Supreme Court accepts or rejects\ncertification. In the event that the California Supreme Court\ngrants certification, the parties shall notify the Clerk of Court\nwithin one week after the California Supreme Court renders\nits opinion.\n\n IT IS SO ORDERED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359264/", "author_raw": "The Honorable Jane A. Restani, Judge for the United States Court"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582011/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Yahoo! Inc. v. National Union Fire Insurance\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n YAHOO! INC., a Delaware No. 17-16452\n corporation,\n Plaintiff-Appellant, D.C. No.\n 5:17-cv-00447-NC\n v.\n\n NATIONAL UNION FIRE ORDER\n INSURANCE COMPANY OF CERTIFYING\n PITTSBURGH, PENNSYLVANIA, a QUESTION TO\n Pennsylvania corporation, THE CALIFORNIA\n Defendant-Appellee. SUPREME COURT\n\n\n\n Filed January 16, 2019\n\n Before: MILAN D. SMITH, JR., and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Order\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\n SUMMARY \n\n\n Insurance Law / Right of Privacy\n\n The panel certified to the California Supreme Court the\nfollowing question:\n\n Does a commercial liability policy that\n covers “personal injury,” defined as “injury .\n . . arising out of . . . [o]ral or written\n publication . . . of material that violates a\n person’s right of privacy,” trigger the\n insurer’s duty to defend the insured against a\n claim that the insured violated the Telephone\n Consumer Protection Act by sending\n unsolicited text message advertisements that\n did not reveal any private information?\n\n\n ORDER\n\n We ask the California Supreme Court to resolve an\nimportant and unresolved question of state law. The right to\nprivacy is generally understood to encompass both a right\n“to be free from unwanted intrusions,” known as the right to\nseclusion, as well as a right “to keep personal information\nconfidential,” known as the right to secrecy. State Farm\nGen. Ins. v. JT’s Frames, Inc., 104 Cal. Rptr. 3d 573, 585\n(Ct. App. 2010); see ACS Sys., Inc. v. St. Paul Fire & Marine\nIns., 53 Cal. Rptr. 3d 786, 794–95 (Ct. App. 2007).\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 3\n\n Many commercial general liability policies cover “injury\n. . . arising out of . . . [o]ral or written publication . . . of\nmaterial that violates a person’s right of privacy.” See\nPenzer v. Transp. Ins., 545 F.3d 1303, 1311 (11th Cir. 2008)\n(discussing this “widely used language”). Courts\nnationwide are divided as to whether such a provision covers\ninjury solely to the right to seclusion, such as where the\ninsured’s unsolicited advertising message disturbs the\nrecipient’s privacy but does not reveal a third party’s private\ninformation. Compare, e.g., Columbia Cas. Co. v. HIAR\nHolding, L.L.C., 411 S.W.3d 258, 269–70 (Mo. 2013)\n(finding coverage), Penzer v. Transp. Ins., 29 So. 3d 1000,\n1002 (Fla. 2010) (same), and Terra Nova Ins. v. Fray-\nWitzer, 869 N.E.2d 565, 574 (Mass. 2007) (same), with, e.g.,\nAuto-Owners Ins. v. Websolv Computing, Inc., 580 F.3d 543,\n550–51 (7th Cir. 2009) (finding no coverage under Iowa\nlaw), and Res. Bankshares Corp. v. St. Paul Mercury Ins.,\n407 F.3d 631, 642 (4th Cir. 2005) (same under Virginia law).\nOf the two California courts to address this issue, ACS\nSystems suggested that such a provision would provide\ncoverage, see 53 Cal. Rptr. 3d at 798, but JT’s Frames held\nthat it does not, see 104 Cal. Rptr. 3d at 588.\n\n This issue frequently arises in claims under the\nTelephone Consumer Protection Act of 1991 (“TCPA”), a\nstatute which generally prohibits the use of “any . . . device\nto send, to a telephone facsimile machine, an unsolicited\nadvertisement.” 1 47 U.S.C. § 227(b)(1)(C). The TCPA’s\nexplicit purpose “is to protect privacy rights,” L.A. Lakers,\nInc. v. Fed. Ins., 869 F.3d 795, 803 (9th Cir. 2017) (lead\n\n 1\n The TCPA permits unsolicited advertisements as part of an\nestablished business relationship or with notice of the recipient’s right to\nopt out of future advertising. See 47 U.S.C. § 227(b)(1)(C), (b)(2)(D)–\n(E).\n\f4 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nopinion); see 47 U.S.C. § 227(b)(2)(C) (referencing “the\nprivacy rights that [the TCPA] is intended to protect”)—\nspecifically, the right to seclusion. See Park Univ. Enters.,\nInc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1249\n(10th Cir. 2006) (“Courts have consistently held the TCPA\nprotects a species of privacy interest in the sense of\nseclusion.”). Because the TCPA does not implicate\nviolations of the right to secrecy, insurance coverage of\nTCPA liability turns on whether “publication . . . of material\nthat violates a person’s right of privacy” applies to the right\nto secrecy, seclusion, or both.\n\n We need guidance in applying California’s rules\ngoverning the interpretation of insurance policies in this\ncontext. Although we may hazard a guess, the tension\nbetween the two California Court of Appeal decisions\n“inhibit[s] our ability to ‘predict how the [California\nSupreme Court] would decide,’ as we are bound to do.”\nPatterson v. City of Yuba City, 884 F.3d 838, 841 (9th Cir.\n2018) (second alteration in Patterson) (quoting McKown v.\nSimon Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012)).\nThe California Supreme Court sometimes looks to decisions\nin other jurisdictions for their persuasive value, see, e.g.,\nPeople v. Wade, 369 P.3d 546, 548 (Cal. 2016); TRB Invs.,\nInc. v. Fireman’s Fund Ins., 145 P.3d 472, 476 (Cal. 2006)\n(reversing Court of Appeal’s construction of insurance\npolicy based in part on “different interpretations of this or\nsimilar language” by out-of-state courts), but the\ninconsistent results from courts outside of California only\nincrease the difficulty in predicting how the California\nSupreme Court would rule. Compare Am. States Ins. v.\nCapital Assocs. of Jackson Cty., Inc., 392 F.3d 939, 940, 943\n(7th Cir. 2004) (holding it was “[s]o clear” under Illinois law\nthat TCPA claims were not “publication of material that\nviolates a person’s right of privacy” that the insurer did not\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 5\n\nneed to provide a defense), with Valley Forge Ins. v.\nSwiderski Elecs., Inc., 860 N.E.2d 307, 323 (Ill. 2006)\n(holding that under Illinois law such a policy provision did\nindeed cover TCPA claims).\n\n I.\n\n Certified Question\n\n Therefore, pursuant to Rule 8.548 of the California Rules\nof Court, we respectfully ask the California Supreme Court\nto exercise its discretion to decide the following certified\nquestion:\n\n Does a commercial liability policy that\n covers “personal injury,” defined as “injury\n . . . arising out of . . . [o]ral or written\n publication . . . of material that violates a\n person’s right of privacy,” trigger the\n insurer’s duty to defend the insured against a\n claim that the insured violated the Telephone\n Consumer Protection Act by sending\n unsolicited text message advertisements that\n did not reveal any private information?\n\n Our phrasing of the question should not restrict the\nCalifornia Supreme Court’s consideration of the issues\ninvolved. The California Supreme Court may rephrase the\nquestion as it sees fit in order to address the parties’\ncontentions. See Cal. R. Ct. 8.548(f)(5). If the California\nSupreme Court agrees to decide this question, we agree to\naccept its decision. See id. R. 8.548(b)(2). We recognize\nthat the California Supreme Court has a substantial caseload,\nand we submit this question because of its significance to the\nmany class actions involving TCPA claims against insureds\n\f6 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nwith these policies and the large amounts of potential\nliability at stake.\n\n II.\n\n Background Facts\n\n National Union sold Yahoo! five consecutive one-year\npolicies for commercial general liability insurance, which\nconsisted of a standard policy form modified by an\nendorsement that the parties negotiated. Subject to certain\nexclusions, the standard policy covered liability for both\n“personal and advertising injury,” defined as injury arising\nout of any of seven specified offenses, including “[o]ral or\nwritten publication, in any manner, of material that violates\na person’s right of privacy.” The standard policy excluded\npersonal and advertising injury arising from the distribution\nof material in violation of the TCPA.\n\n The endorsement modified this coverage in three key\nways. First, it deleted the express exclusion of injuries\narising from TCPA violations. Second, it limited the scope\nof coverage to “personal injury,” which it defined as injury\narising out of any of five offenses:\n\n a. False arrest, detention, or imprisonment;\n\n b. Malicious prosecution;\n\n c. The wrongful eviction from, wrongful entry into, or\n invasion of the right of private occupancy of a room,\n dwelling or premises that a person occupies,\n committed by or on behalf of its owner, landlord or\n lessor;\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 7\n\n d. Oral or written publication, in any manner, of\n material that slanders or libels a person or\n organization or disparages a person’s or\n organization’s goods, products or services; or\n\n e. Oral or written publication, in any manner, of\n material that violates a person’s right of privacy.\n\n Third, the endorsement excluded coverage of\n“advertising injury,” which it defined as injury arising from\nany of four offenses:\n\n a. Oral or written publication, in any manner, of\n material in your “advertisement” that slanders or\n libels a person or organization or disparages a\n person’s or organization’s goods, products or\n services;\n\n b. Oral or written publication, in any manner, of\n material in your “advertisement” that violates a\n person’s right of privacy;\n\n c. The use of another’s advertising idea in your\n “advertisement”; or\n\n d. Infringing upon another’s copyright, trade dress or\n slogan in your “advertisement.”\n\n Yahoo! was a defendant in five putative class actions—\ntwo in California, two in Illinois, and one in Pennsylvania—\nalleging injuries that arose during the time periods covered\nby the National Union policies. All five lawsuits alleged that\nYahoo! violated the TCPA by transmitting unsolicited text\nmessage advertisements to putative class members. The\nCalifornia lawsuits alleged that Yahoo! “invad[ed] [the\nplaintiffs’] privacy” by negligently or willfully sending them\n\f8 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\nunsolicited text messages in violation of the TCPA. In\naddition, one of the Illinois lawsuits asserted that the TCPA\nclaim was “an effort to enforce [the plaintiffs’] fundamental\nfederal right to privacy.”\n\n When National Union refused to tender a defense in the\nunderlying TCPA litigation, Yahoo! commenced this action\nfor breach of contract. The district court granted National\nUnion’s motion to dismiss, concluding that the policy’s\ncoverage of personal injury arising out of “publication . . . of\nmaterial that violates a person’s right of privacy” does not\napply to Yahoo!’s TCPA liability.\n\n III.\n\n California Case Law\n\n Two California Courts of Appeal have addressed\nwhether “right of privacy” insurance provisions cover TCPA\nviolations. In ACS Systems, the policy covered “advertising\ninjury” only and the advertising injury offense at issue was\n“[m]aking known to any person or organization written or\nspoken material that violates an individual’s right of\nprivacy.” 53 Cal. Rptr. 3d at 790, 794 (emphasis added).\nThe court interpreted this language “such that the injured\nparty is the one whose private material is made known, not\nthe one to whom the material is made known.” Id. at 795\n(quoting Res. Bankshares, 407 F.3d at 641). Thus, ACS\nSystems held that TCPA claims, which implicate the right to\nseclusion, were not covered under the policy, which was\nlimited to violations of the right to secrecy, because “the\nrecipient of an unauthorized advertising fax has no claim that\n‘material that violates an individual’s right of privacy’ has\nbeen ‘made known’ to a third party.” Id. at 795–96.\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 9\n\n ACS Systems distinguished several cases finding TCPA\ncoverage where the policy language, like that here, covered\nadvertising injury “arising out of . . . oral or written\npublication of material that violates a person’s right of\nprivacy.” Id. at 798 (quoting Park Univ. Enters., Inc. v. Am.\nCas. Co. of Reading, PA, 314 F. Supp. 2d 1094, 1099 (D.\nKan. 2004)). ACS Systems concluded that those cases\ninvolved “differ[ent]” policy language that “did not define\n‘right of privacy’ or ‘oral or written publication.’” Id.; cf.\nSwiderski Elecs., 860 N.E.2d at 322 (finding coverage under\nthe policy language at issue here and observing that\n“wording seems to have been an important factor” in\nResource Bankshares’ opposite result under policy language\nsimilar to that in ACS Systems).\n\n In JT’s Frames, the Court of Appeal considered the\npolicy language that ACS Systems found distinguishable—\nadvertising injury arising from “oral or written publication\nof material that violates a person’s right of privacy”—and\nheld that it did not cover TCPA liability. JT’s Frames,\n104 Cal. Rptr. 3d at 576, 588. In reaching this holding, JT’s\nFrames relied principally on the “last antecedent” canon of\nconstruction, which provides that “qualifying words, phrases\nand clauses are to be applied to the words or phrases\nimmediately preceding and are not to be construed as\nextending to or including others more remote.” People v.\nPennington, 400 P.3d 14, 21 (Cal. 2017) (quoting People v.\nLewis, 181 P.3d 947, 1002 (Cal. 2008)). Applying this rule,\nJT’s Frames concluded that “the phrase ‘that violates a\nperson’s right to privacy’ must be construed to modify the\nword ‘material’” rather than the phrase “publication of\nmaterial.” 104 Cal. Rptr. 3d at 586. The court reasoned that\n“to come within the policies’ definition of advertising injury,\nthe material at issue must ‘violate[] a person’s right to\nprivacy.’” Id. (alteration in original). And that would be the\n\f10 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\ncase “only if the material contained confidential information\nand violated the victim’s right to secrecy.” Id.\n\n Other courts disagree that the last antecedent canon\nnecessarily applies in this context. See Penzer, 29 So. 3d at\n1007 (observing that “the doctrine . . . is not an absolute\nrule” and finding “that the clause ‘that violates a person’s\nright of privacy’ is applicable as much to ‘publication’ as to\n‘material;’ therefore, the clause should be read as applicable\nto all”); Owners Ins. v. European Auto Works, Inc., 695 F.3d\n814, 821 (8th Cir. 2012) (“While it is possible that the\nlimiting phrase was intended to modify only the word\n‘material,’ it is equally possible to read the provision so that\nthe limiting phrase modifies the preceding phrase\n‘publication of material.’”); Cynosure, Inc. v. St. Paul Fire\nand Marine Ins., 645 F.3d 1, 5 n.3 (1st Cir. 2011) (“It is not\nso clear that ‘publication’ would not be fairly read as\nmodified, even with ‘material’ in between.”).\n\n Courts in other jurisdictions also take issue with JT’s\nFrames’ assumption that “material” violates a person’s right\nto privacy only if it reveals that person’s secret information\nto a third party. See Penzer, 29 So. 3d at 1007 (“[E]ven if\nthe phrase ‘that violates a person’s right of privacy’ only\nmodifies the term ‘material,’ it does not follow that only the\nsecrecy right to privacy is implicated because ‘material’\ncould also invade one’s seclusion.”); Fray-Witzer,\n869 N.E.2d at 574 (“In effect, the insurers argue that the\npolicy’s definition of injury should be read to say ‘[o]ral or\nwritten publication of material, the content of which violates\na person’s right of privacy.’”).\n\n JT’s Frames also looked to the provision’s context in the\npolicy as one of four “advertising injury” offenses. 104 Cal.\nRptr. 3d at 587. The other three types of advertising injury\n“all involve[d] injury caused by the information contained in\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 11\n\nthe advertisement.” Id. Given that context, JT’s Frames\nconcluded that the “right of privacy” provision “may most\nreasonably be interpreted as referring to advertising material\nwhose content violates a person’s right of privacy.” Id.\n\n One of the neighboring “advertising injury” offenses in\nJT’s Frames, “oral or written publication of material that\nslanders or libels a person or organization or disparages a\nperson’s or organization’s goods, products or services,” id.,\nis nearly identical to one of the “personal injury” offenses\nhere. However, the other three “personal injury” offenses\ncovered in the policy here—“[f]alse arrest, detention, or\nimprisonment,” “malicious prosecution,” and “wrongful . . .\ninvasion of the right of private occupancy”—are different\nand do not involve injury caused by information in an\nadvertisement. Moreover, the two “personal injury”\noffenses covered here that are similar to “advertising injury”\noffenses covered in the JT’s Frames policy also have\nanalogues in the “advertising injury” offenses here that are\nexcluded from coverage. The difference between the\nparallel provisions in the policy here is that in the\n“advertising injury” offenses, the word “material” is\nimmediately followed by “in your ‘advertisement’” whereas\nthe “personal injury” offenses lack this modification. Thus,\nthere are significant differences between the contextual\nsetting here and in JT’s Frames.\n\n We would greatly benefit from knowing whether the\nCalifornia Supreme Court agrees with JT’s Frames\napplication of the last antecedent rule and to what extent its\ninterpretation of the relevant policy language depends on\nother contextual factors—in particular, the distinction\nbetween personal and advertising injury. We therefore\nrespectfully ask that the California Supreme Court decide the\ncertified question.\n\f12 YAHOO! V. NAT’L UNION FIRE INS. CO.\n\n IV.\n\n Administrative Information\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\n The title of this case is: YAHOO! INC., Plaintiff-\nAppellant v. NATIONAL UNION FIRE INSURANCE\nCOMPANY OF PITTSBURGH, PENNSYLVANIA,\nDefendant-Appellee.\n\n The case number in our court is 17-16452.\n\n Plaintiff-Appellant Yahoo! Inc. is represented by the\nfollowing counsel:\n\n William T. Um\n Jassy Vick Carolan LLP\n 800 Wilshire Boulevard, Suite 800\n Los Angeles, California 90017\n\n Defendant-Appellee National Union Fire Insurance\nCompany of Pittsburgh, Pennsylvania is represented by the\nfollowing counsel:\n\n Jodi S. Green\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 626 Wilshire Boulevard, Suite 1000\n Los Angeles, California 90017\n\n Richard H. Nicolaides, Jr. and Daniel I. Graham, Jr.\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 10 South Wacker, 21st Floor\n Chicago, Illinois 60606\n\f YAHOO! V. NAT’L UNION FIRE INS. CO. 13\n\n Matthew Lovell\n Nicolaides Fink Thorpe Michaelides Sullivan LLP\n 101 Montgomery Street, Suite 2300\n San Francisco, California 94104\n\n We designate Yahoo! Inc. as the petitioner if our request\nfor a decision is granted, as it is the appellant before our\ncourt.\n\n * * *\n\n We direct the Clerk of Court to transmit immediately to\nthe California Supreme Court, under official seal of the\nUnited States Court of Appeals for the Ninth Circuit, copies\nof all relevant briefs and excerpts of record, as well as an\noriginal and 10 copies of this order, with a certificate of\nservice on the parties. See Cal. R. Ct. 8.548(c)–(d).\n\n This case is withdrawn from submission and will be\nresubmitted following receipt of the California Supreme\nCourt’s opinion on the certified question or notification that\nit declines to answer the certified question. The Clerk of\nCourt shall administratively close this docket pending a\nruling by the California Supreme Court. The panel shall\nretain jurisdiction over further proceedings in this court.\n\n The parties shall notify the Clerk of Court within one\nweek after the California Supreme Court accepts or rejects\ncertification. In the event that the California Supreme Court\ngrants certification, the parties shall notify the Clerk of Court\nwithin one week after the California Supreme Court renders\nits opinion.\n\n IT IS SO ORDERED.\n[END_CASE]", "role": "user" } ]
4,582,012		Global Linguist Solutions, LLC v. Abdulraouf Abdelmeged	2019-01-16	17-72516	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Rosemary Márquez, * District Judge.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GLOBAL LINGUIST SOLUTIONS, LLC; No. 17-72516\n ZURICH AMERICAN INSURANCE\n COMPANY, BRB No.\n Petitioners, 17-0001\n\n v.\n OPINION\n ABDULRAOUF ABDELMEGED; U.S.\n DEPARTMENT OF LABOR,\n Respondents.\n\n\n\n On Petition for Review of an Order of the\n Benefits Review Board\n\n Argued and Submitted December 20, 2018\n San Francisco, California\n\n Filed January 16, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Rosemary Márquez, * District Judge.\n\n Opinion by Judge Gould\n\n\n \n The Honorable Rosemary Márquez, United States District Judge\nfor the District of Arizona, sitting by designation.\n\f2 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\n SUMMARY \n\n\n Defense Base Act\n\n The panel denied a petition for review brought by an\nemployer, and its insurer, challenging a decision by the\nBenefits Review Board concluding that a linguist who\nsupported the military in Iraq was entitled to workers’\ncompensation under the Defense Base Act.\n\n The panel held that petitions for review of compensation\norders arising under the Defense Base Act should be filed in\nthe circuit where the relevant district director is located. See\n42 U.S.C. § 1653(b); 20 C.F.R. § 702.105.\n\n The panel held that substantial evidence supported the\nadministrative law judge’s determination that beginning in\nNovember 2009, the claimant met both the “medical” and\nthe “economic” aspect of “disability” as defined by the\nstatute. The panel also held that the ALJ applied the correct\nlegal standard when considering the evidence in this case.\nThe panel concluded that the ALJ correctly concluded that\nthe claimant met his burden to show that he was disabled.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED 3\n\n COUNSEL\n\nKelly F. Walsh (argued), Brown Sims, New Orleans,\nLouisiana, for Petitioners.\n\nLara D. Merrigan (argued), Merrigan Legal, San Rafael,\nCalifornia; John S. Evangelisti, Denver, Colorado; for\nRespondent.\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n Petitioner Global Linguist Solutions employed\nRespondent Abdulraouf Abdelmeged as a linguist in Iraq,\nsupporting the American military, for two years. Almost\ntwo years after he returned, Abdelmeged filed a workers’\ncompensation claim under the Defense Base Act, 42 U.S.C.\n§ 1651, alleging among other things that PTSD caused by\nhis work in Iraq rendered him incapable of earning his\nformer wages. After two separate hearings before an\nAdministrative Law Judge (“ALJ”), the Benefits Review\nBoard agreed that Abdelmeged could not work because of\nhis psychiatric condition that developed from or was\naggravated by employment in Iraq, and concluded that\nAbdelmeged was entitled to compensation from the date he\nreturned from Iraq. Global Linguist Solutions and its\ninsurer, Zurich American Insurance Company, petitioned for\nreview. We deny the petition.\n\n 1. In Pearce v. Director, Office of Workers’\nCompensation Programs, 603 F.2d 763 (9th Cir. 1979), we\ndetermined that petitions for review of compensation orders\narising under the Defense Base Act are to be filed directly in\n\f4 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\nthe Court of Appeals. Id. at 765–71; see also Serv. Emps.\nInt’l Union v. v. Dir., Office of Workers’ Comp. Programs,\n595 F.3d 447, 452 (2d Cir. 2010) (noting circuit split as to\nwhether petitions seeking review under the Defense Base\nAct should be filed initially in district courts or circuit\ncourts).\n\n But we have not previously firmly resolved whether\npetitions for review of compensation orders arising under the\nDefense Base Act should be filed in the circuit where the\nrelevant district director is located, or in the circuit where the\nALJ’s office is located. See 33 U.S.C. § 921(c); 42 U.S.C.\n§ 1653(b); Pearce, 603 F.2d at 765–71; Hice v. Dir., Office\nof Workers’ Comp. Programs, U.S. Dep’t of Labor, 156 F.3d\n214, 215−16 (D.C. Cir. 1998). Despite a dictum in Pearce\nto the contrary, 1 we now hold that the location of the district\ndirector should control.\n\n The text of 42 U.S.C. § 1653(b) is quite clear: judicial\nproceedings should occur in the location of “the office of the\n\n 1\n Pearce held that petitions for review of workers’ compensation\norders under the Defense Base Act should be filed in the circuit courts,\nrather than the district courts. In discussing its reasoning, it noted that:\n\n We do not think that the substitution of an\n administrative law judge for the deputy commissioner,\n when there is a hearing, makes any difference. The\n [provision] should now be treated as reading “wherein\n is located the office of the deputy commissioner or the\n administrative law judge whose compensation order is\n involved.”\n\n603 F.2d at 770−71. But the order at issue in Pearce was an order of a\ndeputy commissioner, and not an administrative law judge. Thus, that\nstatement was a non-binding dictum. See Miranda B v. Kitzhaber,\n328 F.3d 1181, 1186 (9th Cir. 2003).\n\f GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED 5\n\ndeputy commissioner”—an alternative title for a district\ndirector, 20 C.F.R. § 702.105—“whose compensation\norder” is at issue. 42 U.S.C. § 1653(b); see also Hice,\n156 F.3d at 215–16. This rule is also practical. The district\ndirectors maintain primary responsibility for workers’\ncompensation claims and are assigned to claims based on\nwhere the claimant lives. ALJs, by contrast, are assigned\nrandomly and may travel across the country from other\noffice locations for hearings, as occurred in this case.\nFinally, we so hold to avoid an unnecessary circuit split. The\nonly other circuit to have squarely addressed this\ndiscrepancy likewise held that appeals should be filed in the\nlocation of the district director. Hice, 156 F.3d at 215−16.\n\n 2. Substantial evidence supports the ALJ’s\ndetermination that beginning in November 2009,\nAbdelmeged met both the “medical” and the “economic”\naspect of “disability” as defined by the statute. See\n33 U.S.C. § 902(10); Stevens v. Dir., Office Workers’ Comp.\nPrograms, 909 F.2d 1256, 1258–59 (9th Cir. 1990), as\namended (Aug. 7, 1990). That evidence includes\nAbdelmeged’s credible testimony, the opinion of his treating\npsychiatrist, and his demonstrated inability to earn his\nformer wages upon his return from Iraq. Although other\nevidence in the record might adequately support a different\nconclusion, that evidence does not negate or nullify the\nsubstantial evidence supporting the ALJ’s conclusion. See\nGen. Constr. Co. v. Castro, 401 F.3d 963, 965 (9th Cir.\n2005).\n\n The ALJ reasonably relied on the opinion of the treating\npsychiatrist, Dr. Pock. Dr. Pock was qualified to express an\nopinion about how Abdelmeged’s condition affected him in\nthe past; Dr. Pock’s opinion was supported by\nAbdelmeged’s credible testimony. And the evidence that\n\f6 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\nDr. Pock did not consider, including Abdelmeged’s previous\nmedical records and request for unemployment benefits, did\nnot necessarily conflict with Dr. Pock’s opinion.\n\n The ALJ applied the correct legal standard when\nconsidering the evidence in this case. See Dir., Office of\nWorkers’ Comp. Programs, Dep’t of Labor v. Greenwich\nCollieries, 512 U.S. 267, 276 (1994). For the reasons\ndiscussed above, substantial evidence supports the ALJ’s\nfinding that the evidence weighed in Abdelmeged’s favor.\nWe hold that the ALJ correctly concluded that Abdelmeged\nmet his burden to show that he was disabled.\n\n PETITION FOR REVIEW DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359265/", "author_raw": "GOULD, Circuit Judge:"}]}	RONALD M GOULD	MARSHA S BERZON	ROSEMARY MÁRQUEZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582012/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Global Linguist Solutions, LLC v. Abdulraouf Abdelmeged\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GLOBAL LINGUIST SOLUTIONS, LLC; No. 17-72516\n ZURICH AMERICAN INSURANCE\n COMPANY, BRB No.\n Petitioners, 17-0001\n\n v.\n OPINION\n ABDULRAOUF ABDELMEGED; U.S.\n DEPARTMENT OF LABOR,\n Respondents.\n\n\n\n On Petition for Review of an Order of the\n Benefits Review Board\n\n Argued and Submitted December 20, 2018\n San Francisco, California\n\n Filed January 16, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Rosemary Márquez, * District Judge.\n\n Opinion by Judge Gould\n\n\n \n The Honorable Rosemary Márquez, United States District Judge\nfor the District of Arizona, sitting by designation.\n\f2 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\n SUMMARY \n\n\n Defense Base Act\n\n The panel denied a petition for review brought by an\nemployer, and its insurer, challenging a decision by the\nBenefits Review Board concluding that a linguist who\nsupported the military in Iraq was entitled to workers’\ncompensation under the Defense Base Act.\n\n The panel held that petitions for review of compensation\norders arising under the Defense Base Act should be filed in\nthe circuit where the relevant district director is located. See\n42 U.S.C. § 1653(b); 20 C.F.R. § 702.105.\n\n The panel held that substantial evidence supported the\nadministrative law judge’s determination that beginning in\nNovember 2009, the claimant met both the “medical” and\nthe “economic” aspect of “disability” as defined by the\nstatute. The panel also held that the ALJ applied the correct\nlegal standard when considering the evidence in this case.\nThe panel concluded that the ALJ correctly concluded that\nthe claimant met his burden to show that he was disabled.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED 3\n\n COUNSEL\n\nKelly F. Walsh (argued), Brown Sims, New Orleans,\nLouisiana, for Petitioners.\n\nLara D. Merrigan (argued), Merrigan Legal, San Rafael,\nCalifornia; John S. Evangelisti, Denver, Colorado; for\nRespondent.\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n Petitioner Global Linguist Solutions employed\nRespondent Abdulraouf Abdelmeged as a linguist in Iraq,\nsupporting the American military, for two years. Almost\ntwo years after he returned, Abdelmeged filed a workers’\ncompensation claim under the Defense Base Act, 42 U.S.C.\n§ 1651, alleging among other things that PTSD caused by\nhis work in Iraq rendered him incapable of earning his\nformer wages. After two separate hearings before an\nAdministrative Law Judge (“ALJ”), the Benefits Review\nBoard agreed that Abdelmeged could not work because of\nhis psychiatric condition that developed from or was\naggravated by employment in Iraq, and concluded that\nAbdelmeged was entitled to compensation from the date he\nreturned from Iraq. Global Linguist Solutions and its\ninsurer, Zurich American Insurance Company, petitioned for\nreview. We deny the petition.\n\n 1. In Pearce v. Director, Office of Workers’\nCompensation Programs, 603 F.2d 763 (9th Cir. 1979), we\ndetermined that petitions for review of compensation orders\narising under the Defense Base Act are to be filed directly in\n\f4 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\nthe Court of Appeals. Id. at 765–71; see also Serv. Emps.\nInt’l Union v. v. Dir., Office of Workers’ Comp. Programs,\n595 F.3d 447, 452 (2d Cir. 2010) (noting circuit split as to\nwhether petitions seeking review under the Defense Base\nAct should be filed initially in district courts or circuit\ncourts).\n\n But we have not previously firmly resolved whether\npetitions for review of compensation orders arising under the\nDefense Base Act should be filed in the circuit where the\nrelevant district director is located, or in the circuit where the\nALJ’s office is located. See 33 U.S.C. § 921(c); 42 U.S.C.\n§ 1653(b); Pearce, 603 F.2d at 765–71; Hice v. Dir., Office\nof Workers’ Comp. Programs, U.S. Dep’t of Labor, 156 F.3d\n214, 215−16 (D.C. Cir. 1998). Despite a dictum in Pearce\nto the contrary, 1 we now hold that the location of the district\ndirector should control.\n\n The text of 42 U.S.C. § 1653(b) is quite clear: judicial\nproceedings should occur in the location of “the office of the\n\n 1\n Pearce held that petitions for review of workers’ compensation\norders under the Defense Base Act should be filed in the circuit courts,\nrather than the district courts. In discussing its reasoning, it noted that:\n\n We do not think that the substitution of an\n administrative law judge for the deputy commissioner,\n when there is a hearing, makes any difference. The\n [provision] should now be treated as reading “wherein\n is located the office of the deputy commissioner or the\n administrative law judge whose compensation order is\n involved.”\n\n603 F.2d at 770−71. But the order at issue in Pearce was an order of a\ndeputy commissioner, and not an administrative law judge. Thus, that\nstatement was a non-binding dictum. See Miranda B v. Kitzhaber,\n328 F.3d 1181, 1186 (9th Cir. 2003).\n\f GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED 5\n\ndeputy commissioner”—an alternative title for a district\ndirector, 20 C.F.R. § 702.105—“whose compensation\norder” is at issue. 42 U.S.C. § 1653(b); see also Hice,\n156 F.3d at 215–16. This rule is also practical. The district\ndirectors maintain primary responsibility for workers’\ncompensation claims and are assigned to claims based on\nwhere the claimant lives. ALJs, by contrast, are assigned\nrandomly and may travel across the country from other\noffice locations for hearings, as occurred in this case.\nFinally, we so hold to avoid an unnecessary circuit split. The\nonly other circuit to have squarely addressed this\ndiscrepancy likewise held that appeals should be filed in the\nlocation of the district director. Hice, 156 F.3d at 215−16.\n\n 2. Substantial evidence supports the ALJ’s\ndetermination that beginning in November 2009,\nAbdelmeged met both the “medical” and the “economic”\naspect of “disability” as defined by the statute. See\n33 U.S.C. § 902(10); Stevens v. Dir., Office Workers’ Comp.\nPrograms, 909 F.2d 1256, 1258–59 (9th Cir. 1990), as\namended (Aug. 7, 1990). That evidence includes\nAbdelmeged’s credible testimony, the opinion of his treating\npsychiatrist, and his demonstrated inability to earn his\nformer wages upon his return from Iraq. Although other\nevidence in the record might adequately support a different\nconclusion, that evidence does not negate or nullify the\nsubstantial evidence supporting the ALJ’s conclusion. See\nGen. Constr. Co. v. Castro, 401 F.3d 963, 965 (9th Cir.\n2005).\n\n The ALJ reasonably relied on the opinion of the treating\npsychiatrist, Dr. Pock. Dr. Pock was qualified to express an\nopinion about how Abdelmeged’s condition affected him in\nthe past; Dr. Pock’s opinion was supported by\nAbdelmeged’s credible testimony. And the evidence that\n\f6 GLOBAL LINGUIST SOLUTIONS V. ABDELMEGED\n\nDr. Pock did not consider, including Abdelmeged’s previous\nmedical records and request for unemployment benefits, did\nnot necessarily conflict with Dr. Pock’s opinion.\n\n The ALJ applied the correct legal standard when\nconsidering the evidence in this case. See Dir., Office of\nWorkers’ Comp. Programs, Dep’t of Labor v. Greenwich\nCollieries, 512 U.S. 267, 276 (1994). For the reasons\ndiscussed above, substantial evidence supports the ALJ’s\nfinding that the evidence weighed in Abdelmeged’s favor.\nWe hold that the ALJ correctly concluded that Abdelmeged\nmet his burden to show that he was disabled.\n\n PETITION FOR REVIEW DENIED.\n[END_CASE]", "role": "user" } ]
4,582,577		Louis Taylor v. County of Pima	2019-01-17	17-16980	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mary M. Schroeder, Eugene E. Siler,* and Susan P. Graber, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LOUIS TAYLOR, a single man, No. 17-16980\n Plaintiff-Appellee,\n D.C. No.\n v. 4:15-cv-00152-RM\n\n COUNTY OF PIMA, a body politic;\n CITY OF TUCSON, a body politic, OPINION\n Defendants-Appellants.\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Rosemary Márquez, District Judge, Presiding\n\n Argued and Submitted August 15, 2018\n San Francisco, California\n\n Filed January 17, 2019\n\n Before: Mary M. Schroeder, Eugene E. Siler,\n and Susan P. Graber, Circuit Judges.\n\n Opinion by Judge Graber;\n Concurrence by Judge Graber;\n Dissent by Judge Schroeder\n\n\n \n The Honorable Eugene E. Siler, Circuit Judge for the United States\nCourt of Appeals for the Sixth Circuit, sitting by designation.\n\n2 TAYLOR V. COUNTY OF PIMA\n\n SUMMARY\n\n\n Civil Rights\n\n The panel dismissed, in part, an interlocutory appeal and\naffirmed, in part, the district court’s order granting a motion\nto dismiss in an action brought pursuant to 42 U.S.C. § 1983\nalleging violations of plaintiff’s constitutional rights to due\nprocess and a fair trial.\n\n In 1972, a jury convicted plaintiff in state court of 28\ncounts of felony murder on the theory that he had started a\ndeadly fire at a Tucson hotel. In 2012, while still in prison,\nplaintiff filed a state post-conviction petition advancing\nnewly discovered evidence that arson did not cause the hotel\nfire. The government and plaintiff entered into a plea\nagreement in 2013 under which the original convictions were\nvacated and, in their place, plaintiff pleaded no contest to the\nsame counts, was resentenced to time served, and was\nreleased from prison. Plaintiff then brought his 42 U.S.C.\n§ 1983 action against Pima County and the City of Tucson.\nThe district court held that the County of Pima was not\nentitled to Eleventh Amendment immunity, but that plaintiff\ncould not recover damages for wrongful incarceration.\n\n The panel first gave deference to this court’s previous\norder, issued by a motions panel, which denied the County’s\napplication for permission to appeal the denial of immunity\npursuant to 28 U.S.C. § 1292(b). The panel further concluded\nthat it lacked jurisdiction over the County’s appeal under\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n TAYLOR V. COUNTY OF PIMA 3\n\n§ 1291’s collateral-order doctrine because the County\nappealed only from a denial of immunity from liability, as\nopposed to immunity from suit.\n\n The panel exercised its discretion under 28 U.S.C.\n§ 1292(b) to review the issue of whether plaintiff could\nrecover compensatory damages for wrongful incarceration.\nThe panel noted that a plaintiff in a § 1983 action may not\nrecover incarceration-related damages for any period of\nincarceration supported by a valid, unchallenged conviction\nand sentence. The panel held that because plaintiff’s valid\n2013 conviction and sentence were the sole legal causes of\nhis incarceration, he could not recover damages.\n\n Concurring, Judge Graber wrote separately to explain that\nin Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir.\n2002), this court wrongly exercised jurisdiction over an\ninterlocutory appeal in similar circumstances, and that, in an\nappropriate case, the court should overrule Cortez in its en\nbanc capacity.\n\n Dissenting in part, Judge Schroeder wrote that the panel’s\ndecision that plaintiff could not recover compensatory\ndamages magnified an already tragic injustice. Judge\nSchroeder stated that plaintiff accepted the 2013 plea offer\nbecause his only alternative was to stay in prison and wait for\nhis petition for collateral relief to wend its way through the\ncourts, a process that could take years.\n\n4 TAYLOR V. COUNTY OF PIMA\n\n COUNSEL\n\nNancy J. Davis (argued), Deputy County Attorney, Civil\nDivision, Pima County Attorney’s Office, Tucson, Arizona,\nfor Defendants-Appellants.\n\nJohn P. Leader (argued), Leader Law Firm, Tucson, Arizona;\nTimothy P. Stackhouse, Peter Timoleon Limperis, and\nLindsay E. Brew, Miller Pitt Feldman & McAnally P.C.,\nTucson, Arizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n In 1972, a jury convicted Louis Taylor in Arizona state\ncourt of 28 counts of felony murder, on the theory that he had\nstarted a deadly fire at a Tucson hotel. In 2012, while still in\nprison, Taylor filed a state post-conviction petition advancing\nnewly discovered evidence: an expert, using new and more\nsophisticated investigative techniques, determined that arson\ndid not cause the hotel fire. The government disputed\nTaylor’s new theory but nevertheless agreed to the following\nprocedure. The government and Taylor entered into a plea\nagreement in 2013 under which the original convictions were\nvacated and, in their place, Taylor pleaded no contest to the\nsame counts, was resentenced to time served, and was\nreleased from prison.\n\n Taylor then sued Pima County and the City of Tucson in\nstate court, under 42 U.S.C. § 1983, alleging violations of his\nconstitutional rights to due process and a fair trial. With\nrespect to the County, Taylor alleged unconstitutional\n\n TAYLOR V. COUNTY OF PIMA 5\n\npractices, policies, and customs regarding criminal\nprosecutions, including racially motivated prosecutions of\nAfrican-Americans and a failure to train and supervise deputy\nprosecutors. The City removed the case to federal court, and\nthe County consented to removal.\n\n The County then moved to dismiss Taylor’s operative\ncomplaint. Two of the County’s arguments are relevant on\nappeal. First, the County argued that the relevant government\nofficials acted on behalf of the State, not the County; the\nCounty asserted that, accordingly, it was entitled to “Eleventh\nAmendment immunity.” Second, the County argued that,\nbecause all of Taylor’s time in prison was supported by the\nvalid 2013 criminal judgment, Taylor could not recover\ndamages for wrongful incarceration.\n\n The district court granted in part and denied in part the\nmotion to dismiss. The court held that the County was not\nentitled to Eleventh Amendment immunity. But the court\nagreed with the County that Taylor could not recover\ndamages for wrongful incarceration. The district court then\ncertified its order for interlocutory appeal pursuant to\n28 U.S.C. § 1292(b), concluding that resolution of several\nlegal issues “may materially advance the ultimate termination\nof the litigation.”\n\n Both parties applied to this court for permission to appeal.\nSee 28 U.S.C. § 1292(b) (permitting an “application for an\nappeal hereunder”). The County sought permission to appeal\nthe district court’s denial of immunity, and Taylor sought\npermission to appeal the district court’s ruling that he may\nnot recover damages for wrongful incarceration.\n\n6 TAYLOR V. COUNTY OF PIMA\n\n A motions panel of this court denied both applications to\nappeal pursuant to § 1292(b). But the motions panel\nconstrued the County’s application, in part, as a timely notice\nof appeal from the denial of Eleventh Amendment immunity\nfrom suit. See Cortez v. County of Los Angeles, 294 F.3d\n1186, 1188 (9th Cir. 2002) (holding that we have appellate\njurisdiction under the collateral-order doctrine over a denial\nof Eleventh Amendment immunity from suit (citing Puerto\nRico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,\n506 U.S. 139, 147 (1993))). The motions panel therefore\nordered that the appeal proceed under the collateral-order\ndoctrine of 28 U.S.C. § 1291.\n\n In accordance with that order, the parties then filed briefs\naddressing the issue of the County’s asserted immunity under\nthe Eleventh Amendment. At our request, the parties also\nfiled supplemental briefs addressing whether Taylor may\nrecover damages for wrongful incarceration.\n\n A. Eleventh Amendment Immunity\n\n The County asserts that we have jurisdiction to review the\ndistrict court’s ruling on Eleventh Amendment immunity\nunder the two jurisdictional provisions noted above:\ndiscretionary review under § 1292(b) and the collateral-order\ndoctrine under § 1291.\n\n “When a party seeks a section 1292(b) interlocutory\nappeal, the court of appeals must undertake a two-step\nanalysis.” Arizona v. Ideal Basic Indus. (In re Cement\nAntitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). First,\nwe determine whether the appeal meets the legal\nrequirements of § 1292(b). Id. “If we conclude that the\nrequirements have been met, we may, but need not, exercise\n\n TAYLOR V. COUNTY OF PIMA 7\n\njurisdiction. The second step in our analysis is therefore to\ndecide whether, in the exercise of the discretion granted us by\nthe statute, we want to accept jurisdiction.” Id.; see 28 U.S.C.\n§ 1292(b) (“The Court of Appeals . . . may thereupon, in its\ndiscretion, permit an appeal to be taken from such order . . . .”\n(emphasis added)); see also Gelboim v. Bank of Am. Corp.,\n135 S. Ct. 897, 906 (2015) (stating that a district court’s\ncertification under § 1292(b) “may be accepted or rejected in\nthe discretion of the court of appeals”). Where, as here, the\nmotions panel has decided the § 1292(b) issue in the first\ninstance, “we give deference to the ruling of the motions\npanel.” Kuehner v. Dickinson & Co., 84 F.3d 316, 318 (9th\nCir. 1996). With respect to the question of Eleventh\nAmendment immunity, we see no reason to second-guess the\nmotions panel’s denial of interlocutory review under\n§ 1292(b).\n\n We therefore turn to whether we have appellate\njurisdiction under § 1291. On preliminary review, the\nmotions panel concluded that appellate jurisdiction appeared\nto be proper under the collateral-order doctrine because the\nCounty asserted “Eleventh Amendment immunity.”\n“Although we defer to the ruling of the motions panel\ngranting an order for interlocutory appeal, we have an\nindependent duty to confirm that our jurisdiction is proper.”\nReese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.\n2011) (internal quotation marks omitted). For the reasons\nstated below, we now conclude that the collateral-order\ndoctrine does not apply here.\n\n In an interlocutory appeal, we have appellate jurisdiction\nunder 28 U.S.C. § 1291 to consider claims of immunity from\nsuit, but we lack such appellate jurisdiction to consider claims\nof immunity from liability. SolarCity Corp. v. Salt River\n\n8 TAYLOR V. COUNTY OF PIMA\n\nProject Agric. Improvement & Power Dist., 859 F.3d 720,\n725 (9th Cir. 2017). Under Puerto Rico Aqueduct, 506 U.S.\nat 144–45, an ordinary claim of Eleventh Amendment\nimmunity encompasses a claim of immunity from suit. The\nrationale of Puerto Rico Aqueduct is that an interlocutory\nappeal is necessary to vindicate a state entity’s entitlement to\nimmunity from suit, which would be lost if a case were\npermitted to go to trial. Id. But an immunity from liability\nmay be vindicated fully after final judgment, so the collateral-\norder doctrine does not encompass an interlocutory appeal\nfrom a denial of immunity from liability. See SolarCity,\n859 F.3d at 725 (“Unlike immunity from suit, immunity from\nliability can be protected by a post-judgment appeal. Denials\nof immunity from liability therefore do not meet the\nrequirements for immediate appeal under the collateral-order\ndoctrine.” (citation omitted)).\n\n Before us, Taylor argued that the County, by consenting\nto removal of the case to federal court, waived Eleventh\nAmendment immunity. See Lapides v. Bd. of Regents of\nUniv. Sys., 535 U.S. 613, 624 (2002) (holding that the state’s\nconsenting to removal to federal court “waived its Eleventh\nAmendment immunity” with respect to state law claims);\nEmbury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (extending\nLapides to federal law claims and announcing “a\nstraightforward, easy-to-administer rule in accord with\nLapides: Removal waives Eleventh Amendment\nimmunity.”). In response, the County cited decisions from\nother circuits that have held that removal waives immunity\nfrom suit but does not waive immunity from liability. See,\ne.g., Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir.\n2013) (“We hold that although the Board’s removal to federal\ncourt waived its immunity-based objection to a federal forum,\nthe Board retained its immunity from liability . . . .”). The\n\n TAYLOR V. COUNTY OF PIMA 9\n\nCounty clarified that, in this case, it was asserting only\nimmunity from liability. See, e.g., Reply Brief at 17 (“Pima\nCounty asserted Eleventh Amendment immunity as a\nsubstantive bar to Taylor’s claim . . . . In other words, it was\nasserted as a bar to liability rather than a bar to the federal\ncourt’s ability to hear Taylor’s claim.” (emphasis added)).\nThe County’s asserted immunity from liability can be\nvindicated fully after final judgment; accordingly, the\ncollateral-order doctrine of § 1291 does not apply here.\nSolarCity, 859 F.3d at 725.\n\n In conclusion, we exercise our discretion under § 1292(b)\nto deny the County’s application for permission to appeal,\nand we conclude that § 1291’s collateral-order doctrine does\nnot apply. We therefore dismiss the County’s appeal.\n\n B. Damages for Wrongful Incarceration\n\n 1. Appellate Jurisdiction\n\n Taylor asks us to exercise our discretion under § 1292(b)\nto reconsider the motions panel’s denial of his application for\npermission to appeal. He asks that we review the district\ncourt’s ruling that he may not recover compensatory damages\nfor wrongful incarceration. In the highly unusual\ncircumstances of this case, we agree to review that issue.\n\n Taylor seeks other forms of relief, such as nominal\ndamages, so the district court’s ruling does not dispose of his\ncase entirely. But Taylor emphasizes the importance of the\nincarceration-related damages. From a practical standpoint,\nthe district court’s ruling likely resolves a substantial portion\nof his case. Moreover, if we decline to review this issue now,\nhe will not be able to obtain review until after discovery and,\n\n10 TAYLOR V. COUNTY OF PIMA\n\npossibly, a trial. That ordinary result from a denial of\ninterlocutory review has, in Taylor’s view, uncommon\nconsequences here. Taylor notes that he is in his sixties,\nhaving spent most of his life—42 years—in prison. The\nentire basis of his complaint is that his decades in prison were\nunconstitutional. He characterizes having to wait additional\nyears before this important issue is resolved as “yet another\nmiscarriage of justice.”\n\n As noted, we ordinarily do not disturb a motions panel’s\ndetermination under § 1292(b). Kuehner, 84 F.3d at 318.\nBut we agree with Taylor that a departure from our ordinary\npractice is justified, both because his situation is rare and\nbecause our own rulings have added to the delay. We\ninitially denied discretionary review but ordered briefing on\nthe issue of Eleventh Amendment immunity, further\nforestalling final resolution of this case. We are persuaded to\nexercise our discretion under § 1292(b) to resolve this issue\nnow.\n\n 2. Discussion\n\n Taylor seeks damages for wrongful incarceration\nstemming from the 42 years that he spent in prison. The\nSupreme Court’s holding in Heck v. Humphrey, 512 U.S. 477\n(1994), provides an important limitation on Taylor’s claims.\nUnder Heck, a plaintiff in a § 1983 action may not seek a\njudgment that would necessarily imply the invalidity of a\nstate-court conviction or sentence unless, for example, the\nconviction had been vacated by the state court. Id. at 486–87.\nHere, Taylor’s 1972 jury conviction has been vacated by the\nstate court, so Heck poses no bar to a challenge to that\nconviction or the resulting sentence. But Taylor’s 2013\nconviction, following his plea of no contest, remains valid.\n\n TAYLOR V. COUNTY OF PIMA 11\n\nAccordingly, Taylor may not state a § 1983 claim if a\njudgment in his favor “would necessarily imply the invalidity\nof his [2013] conviction or sentence.” Id. at 487. As the\ndistrict court summarized, “Heck does not bar [Taylor] from\nraising claims premised on alleged constitutional violations\nthat affect his 1972 convictions but do not taint his 2013\nconvictions.” Recognizing that limitation, Taylor stresses\nthat “[h]e challenges his 1972 prosecution, convictions and\nsentence and does not challenge his 2013 ‘no contest’ pleas\nor sentence.” (Emphasis added.)\n\n Taylor alleges that his 1972 conviction and resulting\nsentence were plagued by constitutional violations and that\nthose errors initially caused his incarceration. Critically,\nhowever, all of the time that Taylor served in prison is\nsupported by the valid 2013 state-court judgment. The state\ncourt accepted the plea agreement and sentenced Taylor to\ntime served. For that reason, even if Taylor proves\nconstitutional violations concerning the 1972 conviction, he\ncannot establish that the 1972 conviction caused any\nincarceration-related damages. As a matter of law, the 2013\nconviction caused the entire period of his incarceration.\n\n Our decision in Jackson v. Barnes, 749 F.3d 755 (9th Cir.\n2014), is instructive. A jury originally convicted the plaintiff\nof rape and murder. Id. at 758. His murder conviction—but\nnot his rape conviction—was later vacated. Id. at 759 & n.1.\nHe was later convicted, once again, of murder. Id. at 759. In\nhis § 1983 action, we concluded that he was “not entitled to\ncompensatory damages for any time he spent in prison”\nbecause he was “not imprisoned for any additional time as a\nresult of his first, illegal conviction.” Id. at 762. Jackson\ndiffers factually from this case in that Jackson’s term of\nincarceration was supported fully by the original rape\n\n12 TAYLOR V. COUNTY OF PIMA\n\nconviction, which had not been overturned. Id. But the\ngeneral principle applies equally here: when a valid,\nunchallenged conviction and sentence justify the plaintiff’s\nperiod of imprisonment, then the plaintiff cannot prove that\nthe challenged conviction and sentence caused his\nimprisonment and any resulting damages.\n\n The First Circuit reached the same result in a case that is\nfactually indistinguishable from this one. In Olsen v.\nCorreiro, 189 F.3d 52, 55 (1st Cir. 1999), a jury found the\nplaintiff guilty of murder, but the state court later overturned\nthat conviction. The plaintiff then pleaded nolo contendere\nto manslaughter, and the state court sentenced him to time\nserved. Id. In the plaintiff’s § 1983 action challenging the\nconstitutionality of the original jury conviction, the First\nCircuit held that he could not recover incarceration-related\ndamages because he could not establish that the alleged\nconstitutional violations caused his imprisonment. Id. at 70.\n“Olsen’s valid manslaughter conviction and sentence are the\nsole legal cause of his incarceration.” Id. Similarly here,\nTaylor’s valid 2013 conviction and sentence are the sole legal\ncauses of his incarceration; he cannot recover damages for\nwrongful incarceration.\n\n Our decision also accords with the Second Circuit’s\ndecision in Poventud v. City of New York, 750 F.3d 121\n(2d Cir. 2014) (en banc). A jury convicted the plaintiff of\nserious crimes but, seven years later, a state court vacated the\nconviction and sentence. Id. at 124. The plaintiff then\npleaded guilty to a lesser crime, and a state court imposed a\none-year sentence. Id. In the plaintiff’s § 1983 action, the\nSecond Circuit held that he could seek damages for wrongful\nincarceration for the years he spent in prison, except for the\none year that was supported by the valid criminal judgment:\n\n TAYLOR V. COUNTY OF PIMA 13\n\n“Poventud cannot seek to collect damages for the time that he\nserved pursuant to his plea agreement (that is, for the year-\nlong term of imprisonment).” Id. at 136 (citing Olsen,\n189 F.3d at 55). Applying the same principle here, Taylor\ncannot seek to collect damages for the time that he served\npursuant to his plea agreement.\n\n We agree with the analyses and conclusions of our sister\ncircuits. A plaintiff in a § 1983 action may not recover\nincarceration-related damages for any period of incarceration\nsupported by a valid, unchallenged conviction and sentence.\nWe take no pleasure in reaching this unfortunate result, given\nTaylor’s serious allegations of unconstitutional actions by the\nCounty. But we cannot disregard the limitations imposed by\nCongress and the Supreme Court on the scope of § 1983\nactions.\n\n DISMISSED in part and AFFIRMED in part. The\nparties shall bear their own costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359830/", "author_raw": "GRABER, Circuit Judge:"}, {"author": "GRABER, Circuit Judge, concurring", "type": "concurrence", "text": "GRABER, Circuit Judge, concurring:\n\n I join the opinion in full. I write separately to explain my\nview that, in Cortez v. County of Los Angeles, 294 F.3d 1186\n(9th Cir. 2002), we wrongly exercised jurisdiction over an\ninterlocutory appeal in circumstances similar to those we face\nhere and that, in an appropriate case, we should overrule\nCortez in our en banc capacity.\n\n “[O]nly States and arms of the State possess immunity\nfrom suits authorized by federal law.” N. Ins. Co. of N.Y. v.\nChatham County, 547 U.S. 189, 193 (2006). Counties do not.\n\n14 TAYLOR V. COUNTY OF PIMA\n\nLincoln County v. Luning, 133 U.S. 529 (1890). Here, the\nonly appellant is Pima County. The County plainly is not a\nState, and it has not asserted that it is an “arm of the State.”\nSee Mitchell v. L.A. Cty. Cmty. Coll. Dist., 861 F.2d 198,\n201–02 (9th Cir. 1989) (describing the factors to consider\nwhen deciding whether a governmental entity is an “arm of\nthe state”). Accordingly, the County is not entitled to\nEleventh Amendment immunity. The analysis is truly that\nsimple. See, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999)\n(“[Sovereign] immunity does not extend to suits prosecuted\nagainst a municipal corporation or other governmental entity\nwhich is not an arm of the State.”); Will v. Mich. Dep’t of\nState Police, 491 U.S. 58, 70 (1989) (“States are protected by\nthe Eleventh Amendment while municipalities are not[.]”);\nSolarCity Corp. v. Salt River Project Agric. Improvement &\nPower Dist., 859 F.3d 720, 729 (9th Cir. 2017)\n(“[M]unicipalities . . . may not rely on . . . Eleventh\nAmendment immunity.”); Eason v. Clark Cty. Sch. Dist.,\n303 F.3d 1137, 1141 (9th Cir. 2002) (“[T]he Eleventh\nAmendment does not extend to counties and municipal\ncorporations.”).\n\n The County nevertheless seeks to assert Eleventh\nAmendment immunity and thereby to invoke our jurisdiction\nover this interlocutory appeal under the collateral-order\ndoctrine. The County’s attempt requires some explanation.\n\n Plaintiff Louis Taylor has asserted claims against the\nCounty under Monell v. Department of Social Services,\n436 U.S. 658 (1978), which requires proof of a policy,\npractice, or custom by the County. He asserts that the actions\nof certain government officials amounted to a practice or\ncustom by the County. The County’s sole argument on\n\n TAYLOR V. COUNTY OF PIMA 15\n\nappeal is that the relevant officials were, in fact, working on\nbehalf of the State, so the County cannot be liable.\n\n The Supreme Court has recognized the viability of that\nargument: if the relevant officials were working on behalf of\nthe State, then any practice or custom was a State practice or\ncustom, not a municipal practice or custom. McMillian v.\nMonroe County, 520 U.S. 781 (1997). But that argument\ndoes not bear on whether the municipality has Eleventh\nAmendment immunity. Proof that the relevant officials did\nnot work for the municipality defeats the plaintiff’s case but\nby virtue of an ordinary failure to prove an element of a\nclaim—here, the existence of a municipal policy, practice, or\ncustom. If the defendant municipality is correct that the\nrelevant official was a State official, then the plaintiff has\nfailed to state a claim against the municipality. Eleventh\nAmendment immunity plays no role.\n\n Nowhere in McMillian does the Supreme Court mention\nthe Eleventh Amendment or immunity from suit. (Nor had\nthe circuit court of appeals mentioned those doctrines.\nMcMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996).) Not\nsurprisingly, our cases, too, describe this doctrine in terms of\nwhether the municipality was the actor, rather than in terms\nof sovereign immunity and the Eleventh Amendment. See,\ne.g., Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th\nCir. 2000) (“[T]he San Diego County district attorney was\nacting as a state official in deciding to proceed with Weiner’s\ncriminal prosecution. Weiner’s § 1983 claim against the\nCounty, therefore, fails. The County was not the actor; the\nstate was.” (emphasis added)); Jackson v. Barnes, 749 F.3d\n755, 767 (9th Cir. 2014) (“Jackson alleges, in effect, that the\nDistrict Attorney’s Office is liable for Murphy’s unlawful\nprosecutorial conduct. The District Attorney’s Office,\n\n16 TAYLOR V. COUNTY OF PIMA\n\nhowever, acts as a state office with regard to actions taken in\nits prosecutorial capacity, and is not subject to suit under\n§ 1983. Weiner, 210 F.3d at 1030.”)1; United States v.\nCounty of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018)\n(“Because the traffic-stop policies at issue fall within the\nscope of a sheriff’s law-enforcement duties, we conclude that\nArpaio acted as a final policymaker for Maricopa County\nwhen he instituted those policies.”); Goldstein v. City of Long\nBeach, 715 F.3d 750 (9th Cir. 2013) (lengthy analysis with no\nmention of the Eleventh Amendment or sovereign immunity);\nBotello v. Gammick, 413 F.3d 971 (9th Cir. 2005) (same);\nBrewster v. Shasta County, 275 F.3d 803, 805 (9th Cir. 2001)\n(“The question is whether he is a policymaker on behalf of\nthe state or the county; if he is a policymaker for the state,\nthen the county cannot be liable for his actions.”).\n\n Most importantly, precisely the same issue as decided in\nMcMillian—whether Alabama sheriffs act for the state or the\ncounty—arose in a case before the Supreme Court in 1995,\ntwo years before McMillian. In Swint v. Chambers County\nCommission, 514 U.S. 35, 41 (1995), the Supreme Court\n“granted certiorari to review the Court of Appeals’ decision\nthat Sheriff Morgan is not a policymaker for Chambers\nCounty.” But the Court then ordered supplemental briefing\non the issue of appellate jurisdiction. Id. In its opinion, the\nSupreme Court unanimously held that the court of appeals\nlacked appellate jurisdiction:\n\n\n\n\n 1\n The district court in Jackson had dismissed the case on the ground\nof the Eleventh Amendment, but we did not adopt that formulation;\ninstead, we cited Weiner, which did not mention the Eleventh\nAmendment.\n\n TAYLOR V. COUNTY OF PIMA 17\n\n The commission’s assertion that Sheriff\n Morgan is not its policymaker does not rank,\n under our decisions, as an immunity from suit.\n Instead, the plea ranks as a “mere defense to\n liability.” An erroneous ruling on liability\n may be reviewed effectively on appeal from\n final judgment. Therefore, the order denying\n the county commission’s summary judgment\n motion was not an appealable collateral order.\n\nId. at 43 (citation omitted).\n\n There is no doubt that the underlying substantive\nissue—whether the sheriff acted for the county or the\nstate—was precisely the same two years later in McMillian,\nbecause the Court in McMillian noted that the Eleventh\nCircuit in Swint had reached the issue but that the Supreme\nCourt had vacated the Eleventh Circuit’s decision for lack of\nappellate jurisdiction. McMillian, 520 U.S. at 786 n.3 (citing\n“Swint v. Wadley, 5 F.3d 1435, 1450–51 (1993), vacated for\nlack of appellate jurisdiction, 514 U.S. 35 (1995)” (emphasis\nadded)). Applying Swint, other circuit courts have held,\nunambiguously, that “[w]hen a county appeals asserting that\na sheriff is not a county policymaker under § 1983, that\npresents a defense to liability issue for the county over which\nwe do not have interlocutory jurisdiction.” Manders v. Lee,\n338 F.3d 1304, 1307 n.6 (11th Cir. 2003) (en banc); see also\nSkelton v. Camp, 234 F.3d 292, 297 (5th Cir. 2000) (“[T]he\ndetermination of which entity a defendant serves as policy\nmaker presents a liability issue, not an immunity issue.”);\naccord Hunter v. Town of Mocksville, 789 F.3d 389, 403 n.4\n(4th Cir. 2015). Applying Swint’s rule here, we lack\njurisdiction over the County’s interlocutory appeal because\n\n18 TAYLOR V. COUNTY OF PIMA\n\nthe County argues solely that the relevant officials were not\nCounty policymakers.\n\n Our decision in Cortez overlooked this fundamental\njurisdictional defect. Cortez, like this case, was an\ninterlocutory appeal by a county from the denial of Eleventh\nAmendment immunity. 294 F.3d at 1188. We stated,\ncorrectly, that we had jurisdiction over the denial of Eleventh\nAmendment immunity, but we then reached the issue whether\nthe sheriff acted on behalf of the county or the state,\nincorrectly characterizing that issue as pertaining to the\nEleventh Amendment. Id. at 1188–89. We did not cite\nSwint. Accordingly, the rule in our circuit, unlike the rule in\nevery other circuit, is that interlocutory appeals may be taken\nfrom a district court’s rejection of a municipality’s argument\nthat the relevant government officials acted on behalf of the\nState and not the municipality.\n\n We plainly erred in Cortez. In an appropriate case, we\nshould undo this error in our en banc capacity.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359830/", "author_raw": "GRABER, Circuit Judge, concurring"}, {"author": "SCHROEDER, Circuit Judge, dissenting", "type": "dissent", "text": "SCHROEDER, Circuit Judge, dissenting as to Part B.2:\n\n This decision magnifies an already tragic injustice. At the\ntime of Tucson’s Pioneer Hotel fire in 1972, Louis Taylor\nwas an African American male of sixteen. Arrested near the\nhotel, he was convicted on the basis of little more than that\nproximity and trial evidence that “black boys” like to set\nfires. He has spent a lifetime of 42 years in prison following\nhis wrongful conviction.\n\n TAYLOR V. COUNTY OF PIMA 19\n\n When he filed his state court petition the county that had\nprosecuted him did not even respond to his allegations of\ngrievous deprivations of civil rights, including the\nwithholding of evidence that the fire was not caused by arson\nat all, and the indicia of racial bias underlying the entire\nprosecution. Instead of responding, the county offered Taylor\nhis immediate freedom in return for his pleading no contest\nto the original charges and agreeing to a sentence of time\nserved.\n\n He accepted the offer, since his only alternative was to\nstay in prison and wait for his petition for collateral relief to\nwend its way through the courts, a process that could take\nyears. Because his original conviction had been vacated and\nall of the prison time he had served was as a result of that\ninvalid conviction, he filed this action to recover damages for\nhis wrongful incarceration.\n\n Yet the majority holds that he can recover nothing. Why?\nBecause it interprets the few cases with circumstances\nremotely similar to this one to require the admittedly unfair\nholding that his plea agreement somehow validates or\njustifies the original sentence that deprived Taylor of a\nmeaningful life.\n\n In my view our law is not that unjust.\n\n Our Circuit law actually supports the award of damages\nfor the time Taylor served in prison as a result of an unlawful,\nand now vacated conviction. Our leading case is Jackson v.\nBarnes, 749 F.3d 755 (9th Cir. 2014), where, as here, the\nplaintiff’s original conviction was vacated on habeas review.\nHence, a claim for damages resulting from wrongful\nincarceration was not barred by Heck v. Humphrey. Jackson,\n\n20 TAYLOR V. COUNTY OF PIMA\n\n749 F.3d at 760–61. The majority acknowledges the same is\ntrue here.\n\n In Jackson the plaintiff could not recover damages,\nhowever, because the wrongful conviction had not yet\nresulted in any wrongful incarceration. This was because he\nwas still serving other, earlier imposed sentences and never\nbegan serving the term imposed as a result of the unlawful\nconviction. In other words, there was a lack of causation. Id.\nat 762. Taylor, by contrast, served decades of imprisonment\nas a result of his first, vacated conviction, so there is no lack\nof causation here. Under Jackson, he should recover. That\nTaylor later, in order to gain prompt release, pleaded no\ncontest to the charges and to a sentence of time served, does\nnot undo the causal sentencing chain set in motion after the\noriginal, invalid conviction. The majority’s discussion is not\nconsistent with Jackson.\n\n The Second Circuit’s decision in Poventud also supports\nreversal. Poventud v. City of N.Y., 750 F.3d 121 (2d Cir.\n2014) (en banc). Poventud’s conviction was vacated on\ncollateral attack, on the basis of a Brady violation, and a new\ntrial was ordered. Id. at 124. He then pleaded guilty to a\nlesser charge, pursuant to a plea agreement that dismissed all\nother charges and stipulated to a one-year sentence, with time\nalready served. Id. The Second Circuit held that Poventud’s\nBrady-based claim was not Heck-barred insofar as it related\nto his first conviction. Id. at 124–25, 134–36. As the en banc\ncourt explained, were Poventud to win at trial in his civil\nrights suit, “the legal status of his [second conviction] would\nremain preserved.” Id. at 138 (quoted by Jackson, 749 F.3d\nat 761). He was permitted to pursue a claim of damages for\nthe time he served beyond the one year plea agreement\nstipulation. Judge Lynch’s concurrence is also instructive, as\n\n TAYLOR V. COUNTY OF PIMA 21\n\nit focuses on the injustice of relying on the subsequent guilty\nplea to deny Poventud a remedy for the unfairness of the first\ntrial. Id. at 138–47. The majority’s decision ignores such\ninjustice in this case.\n\n Taylor’s case is even more compelling than those of\nJackson and Poventud because his first conviction was so\ndeeply tainted that we now know the disastrous fire may not\nhave been set by anyone, and the prosecution was without\nadequate foundation from the beginning. He won more than\na new trial, but virtual exoneration. His situation is therefore\nalso different from the situation in Olsen v. Correiro,\n189 F.3d 52 (1st Cir. 1999), where the plaintiff’s murder\nconviction was overturned but he was subsequently convicted\nof manslaughter.\n\n Far from being the product of a new, constitutionally-\nconducted second trial, Taylor’s second conviction was the\nproduct of his desperate circumstances. In his 60’s, he faced\nacceptance of the plea offer or waiting years for a habeas\npetition to work its way through the courts. We should not\ntolerate such coercive tactics to deprive persons of a remedy\nfor violations of their constitutional rights. To say such a\nplea justifies the loss of 42 years, as the majority asserts, is to\ndeny the reality of this situation and perpetuate an abuse of\npower that § 1983 should redress.\n\n Our court has spoken to this before:\n\n “When prosecutors betray their solemn\n obligations and abuse the immense power\n they hold, the fairness of our entire system of\n justice is called into doubt and public\n\n22 TAYLOR V. COUNTY OF PIMA\n\n confidence in it is undermined.” Silva v.\n Brown, 416 F.3d 980, 991 (9th Cir. 2005).\n\n So has the Supreme Court:\n\n “It hardly seems unjust to require a municipal\n defendant which has violated a citizen’s\n constitutional rights to compensate him for\n the injury suffered thereby. Indeed, Congress\n enacted § 1983 precisely to provide a remedy\n for such abuses of official power.” Owen v.\n City of Independence, 445 U.S. 622, 654\n (1980).\n\n I therefore regretfully and respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359830/", "author_raw": "SCHROEDER, Circuit Judge, dissenting"}]}	MARY M SCHROEDER	EUGENE E SILER	SUSAN P GRABER	1		{}	3	1	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582577/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Louis Taylor v. County of Pima\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LOUIS TAYLOR, a single man, No. 17-16980\n Plaintiff-Appellee,\n D.C. No.\n v. 4:15-cv-00152-RM\n\n COUNTY OF PIMA, a body politic;\n CITY OF TUCSON, a body politic, OPINION\n Defendants-Appellants.\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Rosemary Márquez, District Judge, Presiding\n\n Argued and Submitted August 15, 2018\n San Francisco, California\n\n Filed January 17, 2019\n\n Before: Mary M. Schroeder, Eugene E. Siler,\n and Susan P. Graber, Circuit Judges.\n\n Opinion by Judge Graber;\n Concurrence by Judge Graber;\n Dissent by Judge Schroeder\n\n\n \n The Honorable Eugene E. Siler, Circuit Judge for the United States\nCourt of Appeals for the Sixth Circuit, sitting by designation.\n\n2 TAYLOR V. COUNTY OF PIMA\n\n SUMMARY\n\n\n Civil Rights\n\n The panel dismissed, in part, an interlocutory appeal and\naffirmed, in part, the district court’s order granting a motion\nto dismiss in an action brought pursuant to 42 U.S.C. § 1983\nalleging violations of plaintiff’s constitutional rights to due\nprocess and a fair trial.\n\n In 1972, a jury convicted plaintiff in state court of 28\ncounts of felony murder on the theory that he had started a\ndeadly fire at a Tucson hotel. In 2012, while still in prison,\nplaintiff filed a state post-conviction petition advancing\nnewly discovered evidence that arson did not cause the hotel\nfire. The government and plaintiff entered into a plea\nagreement in 2013 under which the original convictions were\nvacated and, in their place, plaintiff pleaded no contest to the\nsame counts, was resentenced to time served, and was\nreleased from prison. Plaintiff then brought his 42 U.S.C.\n§ 1983 action against Pima County and the City of Tucson.\nThe district court held that the County of Pima was not\nentitled to Eleventh Amendment immunity, but that plaintiff\ncould not recover damages for wrongful incarceration.\n\n The panel first gave deference to this court’s previous\norder, issued by a motions panel, which denied the County’s\napplication for permission to appeal the denial of immunity\npursuant to 28 U.S.C. § 1292(b). The panel further concluded\nthat it lacked jurisdiction over the County’s appeal under\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n TAYLOR V. COUNTY OF PIMA 3\n\n§ 1291’s collateral-order doctrine because the County\nappealed only from a denial of immunity from liability, as\nopposed to immunity from suit.\n\n The panel exercised its discretion under 28 U.S.C.\n§ 1292(b) to review the issue of whether plaintiff could\nrecover compensatory damages for wrongful incarceration.\nThe panel noted that a plaintiff in a § 1983 action may not\nrecover incarceration-related damages for any period of\nincarceration supported by a valid, unchallenged conviction\nand sentence. The panel held that because plaintiff’s valid\n2013 conviction and sentence were the sole legal causes of\nhis incarceration, he could not recover damages.\n\n Concurring, Judge Graber wrote separately to explain that\nin Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir.\n2002), this court wrongly exercised jurisdiction over an\ninterlocutory appeal in similar circumstances, and that, in an\nappropriate case, the court should overrule Cortez in its en\nbanc capacity.\n\n Dissenting in part, Judge Schroeder wrote that the panel’s\ndecision that plaintiff could not recover compensatory\ndamages magnified an already tragic injustice. Judge\nSchroeder stated that plaintiff accepted the 2013 plea offer\nbecause his only alternative was to stay in prison and wait for\nhis petition for collateral relief to wend its way through the\ncourts, a process that could take years.\n\n4 TAYLOR V. COUNTY OF PIMA\n\n COUNSEL\n\nNancy J. Davis (argued), Deputy County Attorney, Civil\nDivision, Pima County Attorney’s Office, Tucson, Arizona,\nfor Defendants-Appellants.\n\nJohn P. Leader (argued), Leader Law Firm, Tucson, Arizona;\nTimothy P. Stackhouse, Peter Timoleon Limperis, and\nLindsay E. Brew, Miller Pitt Feldman & McAnally P.C.,\nTucson, Arizona; for Plaintiff-Appellee.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n In 1972, a jury convicted Louis Taylor in Arizona state\ncourt of 28 counts of felony murder, on the theory that he had\nstarted a deadly fire at a Tucson hotel. In 2012, while still in\nprison, Taylor filed a state post-conviction petition advancing\nnewly discovered evidence: an expert, using new and more\nsophisticated investigative techniques, determined that arson\ndid not cause the hotel fire. The government disputed\nTaylor’s new theory but nevertheless agreed to the following\nprocedure. The government and Taylor entered into a plea\nagreement in 2013 under which the original convictions were\nvacated and, in their place, Taylor pleaded no contest to the\nsame counts, was resentenced to time served, and was\nreleased from prison.\n\n Taylor then sued Pima County and the City of Tucson in\nstate court, under 42 U.S.C. § 1983, alleging violations of his\nconstitutional rights to due process and a fair trial. With\nrespect to the County, Taylor alleged unconstitutional\n\n TAYLOR V. COUNTY OF PIMA 5\n\npractices, policies, and customs regarding criminal\nprosecutions, including racially motivated prosecutions of\nAfrican-Americans and a failure to train and supervise deputy\nprosecutors. The City removed the case to federal court, and\nthe County consented to removal.\n\n The County then moved to dismiss Taylor’s operative\ncomplaint. Two of the County’s arguments are relevant on\nappeal. First, the County argued that the relevant government\nofficials acted on behalf of the State, not the County; the\nCounty asserted that, accordingly, it was entitled to “Eleventh\nAmendment immunity.” Second, the County argued that,\nbecause all of Taylor’s time in prison was supported by the\nvalid 2013 criminal judgment, Taylor could not recover\ndamages for wrongful incarceration.\n\n The district court granted in part and denied in part the\nmotion to dismiss. The court held that the County was not\nentitled to Eleventh Amendment immunity. But the court\nagreed with the County that Taylor could not recover\ndamages for wrongful incarceration. The district court then\ncertified its order for interlocutory appeal pursuant to\n28 U.S.C. § 1292(b), concluding that resolution of several\nlegal issues “may materially advance the ultimate termination\nof the litigation.”\n\n Both parties applied to this court for permission to appeal.\nSee 28 U.S.C. § 1292(b) (permitting an “application for an\nappeal hereunder”). The County sought permission to appeal\nthe district court’s denial of immunity, and Taylor sought\npermission to appeal the district court’s ruling that he may\nnot recover damages for wrongful incarceration.\n\n6 TAYLOR V. COUNTY OF PIMA\n\n A motions panel of this court denied both applications to\nappeal pursuant to § 1292(b). But the motions panel\nconstrued the County’s application, in part, as a timely notice\nof appeal from the denial of Eleventh Amendment immunity\nfrom suit. See Cortez v. County of Los Angeles, 294 F.3d\n1186, 1188 (9th Cir. 2002) (holding that we have appellate\njurisdiction under the collateral-order doctrine over a denial\nof Eleventh Amendment immunity from suit (citing Puerto\nRico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,\n506 U.S. 139, 147 (1993))). The motions panel therefore\nordered that the appeal proceed under the collateral-order\ndoctrine of 28 U.S.C. § 1291.\n\n In accordance with that order, the parties then filed briefs\naddressing the issue of the County’s asserted immunity under\nthe Eleventh Amendment. At our request, the parties also\nfiled supplemental briefs addressing whether Taylor may\nrecover damages for wrongful incarceration.\n\n A. Eleventh Amendment Immunity\n\n The County asserts that we have jurisdiction to review the\ndistrict court’s ruling on Eleventh Amendment immunity\nunder the two jurisdictional provisions noted above:\ndiscretionary review under § 1292(b) and the collateral-order\ndoctrine under § 1291.\n\n “When a party seeks a section 1292(b) interlocutory\nappeal, the court of appeals must undertake a two-step\nanalysis.” Arizona v. Ideal Basic Indus. (In re Cement\nAntitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). First,\nwe determine whether the appeal meets the legal\nrequirements of § 1292(b). Id. “If we conclude that the\nrequirements have been met, we may, but need not, exercise\n\n TAYLOR V. COUNTY OF PIMA 7\n\njurisdiction. The second step in our analysis is therefore to\ndecide whether, in the exercise of the discretion granted us by\nthe statute, we want to accept jurisdiction.” Id.; see 28 U.S.C.\n§ 1292(b) (“The Court of Appeals . . . may thereupon, in its\ndiscretion, permit an appeal to be taken from such order . . . .”\n(emphasis added)); see also Gelboim v. Bank of Am. Corp.,\n135 S. Ct. 897, 906 (2015) (stating that a district court’s\ncertification under § 1292(b) “may be accepted or rejected in\nthe discretion of the court of appeals”). Where, as here, the\nmotions panel has decided the § 1292(b) issue in the first\ninstance, “we give deference to the ruling of the motions\npanel.” Kuehner v. Dickinson & Co., 84 F.3d 316, 318 (9th\nCir. 1996). With respect to the question of Eleventh\nAmendment immunity, we see no reason to second-guess the\nmotions panel’s denial of interlocutory review under\n§ 1292(b).\n\n We therefore turn to whether we have appellate\njurisdiction under § 1291. On preliminary review, the\nmotions panel concluded that appellate jurisdiction appeared\nto be proper under the collateral-order doctrine because the\nCounty asserted “Eleventh Amendment immunity.”\n“Although we defer to the ruling of the motions panel\ngranting an order for interlocutory appeal, we have an\nindependent duty to confirm that our jurisdiction is proper.”\nReese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.\n2011) (internal quotation marks omitted). For the reasons\nstated below, we now conclude that the collateral-order\ndoctrine does not apply here.\n\n In an interlocutory appeal, we have appellate jurisdiction\nunder 28 U.S.C. § 1291 to consider claims of immunity from\nsuit, but we lack such appellate jurisdiction to consider claims\nof immunity from liability. SolarCity Corp. v. Salt River\n\n8 TAYLOR V. COUNTY OF PIMA\n\nProject Agric. Improvement & Power Dist., 859 F.3d 720,\n725 (9th Cir. 2017). Under Puerto Rico Aqueduct, 506 U.S.\nat 144–45, an ordinary claim of Eleventh Amendment\nimmunity encompasses a claim of immunity from suit. The\nrationale of Puerto Rico Aqueduct is that an interlocutory\nappeal is necessary to vindicate a state entity’s entitlement to\nimmunity from suit, which would be lost if a case were\npermitted to go to trial. Id. But an immunity from liability\nmay be vindicated fully after final judgment, so the collateral-\norder doctrine does not encompass an interlocutory appeal\nfrom a denial of immunity from liability. See SolarCity,\n859 F.3d at 725 (“Unlike immunity from suit, immunity from\nliability can be protected by a post-judgment appeal. Denials\nof immunity from liability therefore do not meet the\nrequirements for immediate appeal under the collateral-order\ndoctrine.” (citation omitted)).\n\n Before us, Taylor argued that the County, by consenting\nto removal of the case to federal court, waived Eleventh\nAmendment immunity. See Lapides v. Bd. of Regents of\nUniv. Sys., 535 U.S. 613, 624 (2002) (holding that the state’s\nconsenting to removal to federal court “waived its Eleventh\nAmendment immunity” with respect to state law claims);\nEmbury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (extending\nLapides to federal law claims and announcing “a\nstraightforward, easy-to-administer rule in accord with\nLapides: Removal waives Eleventh Amendment\nimmunity.”). In response, the County cited decisions from\nother circuits that have held that removal waives immunity\nfrom suit but does not waive immunity from liability. See,\ne.g., Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir.\n2013) (“We hold that although the Board’s removal to federal\ncourt waived its immunity-based objection to a federal forum,\nthe Board retained its immunity from liability . . . .”). The\n\n TAYLOR V. COUNTY OF PIMA 9\n\nCounty clarified that, in this case, it was asserting only\nimmunity from liability. See, e.g., Reply Brief at 17 (“Pima\nCounty asserted Eleventh Amendment immunity as a\nsubstantive bar to Taylor’s claim . . . . In other words, it was\nasserted as a bar to liability rather than a bar to the federal\ncourt’s ability to hear Taylor’s claim.” (emphasis added)).\nThe County’s asserted immunity from liability can be\nvindicated fully after final judgment; accordingly, the\ncollateral-order doctrine of § 1291 does not apply here.\nSolarCity, 859 F.3d at 725.\n\n In conclusion, we exercise our discretion under § 1292(b)\nto deny the County’s application for permission to appeal,\nand we conclude that § 1291’s collateral-order doctrine does\nnot apply. We therefore dismiss the County’s appeal.\n\n B. Damages for Wrongful Incarceration\n\n 1. Appellate Jurisdiction\n\n Taylor asks us to exercise our discretion under § 1292(b)\nto reconsider the motions panel’s denial of his application for\npermission to appeal. He asks that we review the district\ncourt’s ruling that he may not recover compensatory damages\nfor wrongful incarceration. In the highly unusual\ncircumstances of this case, we agree to review that issue.\n\n Taylor seeks other forms of relief, such as nominal\ndamages, so the district court’s ruling does not dispose of his\ncase entirely. But Taylor emphasizes the importance of the\nincarceration-related damages. From a practical standpoint,\nthe district court’s ruling likely resolves a substantial portion\nof his case. Moreover, if we decline to review this issue now,\nhe will not be able to obtain review until after discovery and,\n\n10 TAYLOR V. COUNTY OF PIMA\n\npossibly, a trial. That ordinary result from a denial of\ninterlocutory review has, in Taylor’s view, uncommon\nconsequences here. Taylor notes that he is in his sixties,\nhaving spent most of his life—42 years—in prison. The\nentire basis of his complaint is that his decades in prison were\nunconstitutional. He characterizes having to wait additional\nyears before this important issue is resolved as “yet another\nmiscarriage of justice.”\n\n As noted, we ordinarily do not disturb a motions panel’s\ndetermination under § 1292(b). Kuehner, 84 F.3d at 318.\nBut we agree with Taylor that a departure from our ordinary\npractice is justified, both because his situation is rare and\nbecause our own rulings have added to the delay. We\ninitially denied discretionary review but ordered briefing on\nthe issue of Eleventh Amendment immunity, further\nforestalling final resolution of this case. We are persuaded to\nexercise our discretion under § 1292(b) to resolve this issue\nnow.\n\n 2. Discussion\n\n Taylor seeks damages for wrongful incarceration\nstemming from the 42 years that he spent in prison. The\nSupreme Court’s holding in Heck v. Humphrey, 512 U.S. 477\n(1994), provides an important limitation on Taylor’s claims.\nUnder Heck, a plaintiff in a § 1983 action may not seek a\njudgment that would necessarily imply the invalidity of a\nstate-court conviction or sentence unless, for example, the\nconviction had been vacated by the state court. Id. at 486–87.\nHere, Taylor’s 1972 jury conviction has been vacated by the\nstate court, so Heck poses no bar to a challenge to that\nconviction or the resulting sentence. But Taylor’s 2013\nconviction, following his plea of no contest, remains valid.\n\n TAYLOR V. COUNTY OF PIMA 11\n\nAccordingly, Taylor may not state a § 1983 claim if a\njudgment in his favor “would necessarily imply the invalidity\nof his [2013] conviction or sentence.” Id. at 487. As the\ndistrict court summarized, “Heck does not bar [Taylor] from\nraising claims premised on alleged constitutional violations\nthat affect his 1972 convictions but do not taint his 2013\nconvictions.” Recognizing that limitation, Taylor stresses\nthat “[h]e challenges his 1972 prosecution, convictions and\nsentence and does not challenge his 2013 ‘no contest’ pleas\nor sentence.” (Emphasis added.)\n\n Taylor alleges that his 1972 conviction and resulting\nsentence were plagued by constitutional violations and that\nthose errors initially caused his incarceration. Critically,\nhowever, all of the time that Taylor served in prison is\nsupported by the valid 2013 state-court judgment. The state\ncourt accepted the plea agreement and sentenced Taylor to\ntime served. For that reason, even if Taylor proves\nconstitutional violations concerning the 1972 conviction, he\ncannot establish that the 1972 conviction caused any\nincarceration-related damages. As a matter of law, the 2013\nconviction caused the entire period of his incarceration.\n\n Our decision in Jackson v. Barnes, 749 F.3d 755 (9th Cir.\n2014), is instructive. A jury originally convicted the plaintiff\nof rape and murder. Id. at 758. His murder conviction—but\nnot his rape conviction—was later vacated. Id. at 759 & n.1.\nHe was later convicted, once again, of murder. Id. at 759. In\nhis § 1983 action, we concluded that he was “not entitled to\ncompensatory damages for any time he spent in prison”\nbecause he was “not imprisoned for any additional time as a\nresult of his first, illegal conviction.” Id. at 762. Jackson\ndiffers factually from this case in that Jackson’s term of\nincarceration was supported fully by the original rape\n\n12 TAYLOR V. COUNTY OF PIMA\n\nconviction, which had not been overturned. Id. But the\ngeneral principle applies equally here: when a valid,\nunchallenged conviction and sentence justify the plaintiff’s\nperiod of imprisonment, then the plaintiff cannot prove that\nthe challenged conviction and sentence caused his\nimprisonment and any resulting damages.\n\n The First Circuit reached the same result in a case that is\nfactually indistinguishable from this one. In Olsen v.\nCorreiro, 189 F.3d 52, 55 (1st Cir. 1999), a jury found the\nplaintiff guilty of murder, but the state court later overturned\nthat conviction. The plaintiff then pleaded nolo contendere\nto manslaughter, and the state court sentenced him to time\nserved. Id. In the plaintiff’s § 1983 action challenging the\nconstitutionality of the original jury conviction, the First\nCircuit held that he could not recover incarceration-related\ndamages because he could not establish that the alleged\nconstitutional violations caused his imprisonment. Id. at 70.\n“Olsen’s valid manslaughter conviction and sentence are the\nsole legal cause of his incarceration.” Id. Similarly here,\nTaylor’s valid 2013 conviction and sentence are the sole legal\ncauses of his incarceration; he cannot recover damages for\nwrongful incarceration.\n\n Our decision also accords with the Second Circuit’s\ndecision in Poventud v. City of New York, 750 F.3d 121\n(2d Cir. 2014) (en banc). A jury convicted the plaintiff of\nserious crimes but, seven years later, a state court vacated the\nconviction and sentence. Id. at 124. The plaintiff then\npleaded guilty to a lesser crime, and a state court imposed a\none-year sentence. Id. In the plaintiff’s § 1983 action, the\nSecond Circuit held that he could seek damages for wrongful\nincarceration for the years he spent in prison, except for the\none year that was supported by the valid criminal judgment:\n\n TAYLOR V. COUNTY OF PIMA 13\n\n“Poventud cannot seek to collect damages for the time that he\nserved pursuant to his plea agreement (that is, for the year-\nlong term of imprisonment).” Id. at 136 (citing Olsen,\n189 F.3d at 55). Applying the same principle here, Taylor\ncannot seek to collect damages for the time that he served\npursuant to his plea agreement.\n\n We agree with the analyses and conclusions of our sister\ncircuits. A plaintiff in a § 1983 action may not recover\nincarceration-related damages for any period of incarceration\nsupported by a valid, unchallenged conviction and sentence.\nWe take no pleasure in reaching this unfortunate result, given\nTaylor’s serious allegations of unconstitutional actions by the\nCounty. But we cannot disregard the limitations imposed by\nCongress and the Supreme Court on the scope of § 1983\nactions.\n\n DISMISSED in part and AFFIRMED in part. The\nparties shall bear their own costs on appeal.\n[END_CASE]", "role": "user" } ]
4,582,578		Elisio Atenia Lorenzo v. Matthew G. Whitaker	2019-01-17	15-70814	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and Raymond C. Fisher and Carlos T. Bea, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nELISIO ATENIA LORENZO, No. 15-70814\n Petitioner,\n Agency No.\n v. A038-467-916\n\nMATTHEW G. WHITAKER, Acting\nAttorney General, ORDER\n Respondent.\n\n\n\n Filed January 17, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and Raymond C.\n Fisher and Carlos T. Bea, Circuit Judges.\n\n Order\n\f2 ATENIA LORENZO V. SESSIONS\n\n ORDER\n\n The opinion filed August 29, 2018, and reported at\n902 F.3d 930, is WITHDRAWN. A substitute\nmemorandum disposition is filed concurrently with this\norder.\n\n The government’s petition for panel rehearing, filed\nNovember 14, 2018 (Dkt. 83), is DENIED.\n\n The government’s motion for judicial notice, filed\nNovember 14, 2018 (Dkt. 84), is DENIED.\n\n No further petitions for rehearing en banc may be filed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359831/", "author_raw": ""}]}	SIDNEY R THOMAS	RAYMOND C FISHER	CARLOS T BEA	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582578/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Elisio Atenia Lorenzo v. Matthew G. Whitaker\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nELISIO ATENIA LORENZO, No. 15-70814\n Petitioner,\n Agency No.\n v. A038-467-916\n\nMATTHEW G. WHITAKER, Acting\nAttorney General, ORDER\n Respondent.\n\n\n\n Filed January 17, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and Raymond C.\n Fisher and Carlos T. Bea, Circuit Judges.\n\n Order\n\f2 ATENIA LORENZO V. SESSIONS\n\n ORDER\n\n The opinion filed August 29, 2018, and reported at\n902 F.3d 930, is WITHDRAWN. A substitute\nmemorandum disposition is filed concurrently with this\norder.\n\n The government’s petition for panel rehearing, filed\nNovember 14, 2018 (Dkt. 83), is DENIED.\n\n The government’s motion for judicial notice, filed\nNovember 14, 2018 (Dkt. 84), is DENIED.\n\n No further petitions for rehearing en banc may be filed.\n[END_CASE]", "role": "user" } ]
4,582,992		United States v. Ira Spearman	2019-01-18	16-55177	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 16-55177\n Plaintiff-Appellee,\n D.C. No.\n v. 2:93-cr-01027-TJH-1\n\nIRA VINCENT SPEARMAN,\n Defendant-Appellant. ORDER\n\n\n\n Filed January 18, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and Kim McLane\n Wardlaw and Marsha S. Berzon, Circuit Judges.\n\n Order\n\f2 UNITED STATES V. SPEARMAN\n\n SUMMARY \n\n\n First Step Act of 2018\n\n The panel remanded a criminal case with instructions\nthat the district court proceed with re-sentencing in light of,\nand in accordance with, the First Step Act of 2018.\n\n Under the First Step Act, a court that imposed a sentence\nfor a covered sentence may impose a reduced sentence as if\nsections 2 and 3 of the Fair Sentencing Act of 2010 were in\neffect at the time the covered offense was committed. The\npanel wrote that had section 2 of the Fair Sentencing Act of\n2010 been in effect at the time the defendant committed his\noffense, he would have been subject to “a term of\nimprisonment which may not be less than 10 years and not\nmore than life imprisonment.”\n\n The panel remanded for this limited purpose only and\nwithout prejudice to the arguments made on appeal. The\npanel retained jurisdiction over the certified claims in the 28\nU.S.C. § 2255 appeal.\n\n\n COUNSEL\n\nMichael Romano (argued) and Sophie Wood, Three Strikes\nProject, Stanford Law School, Stanford, California, for\nDefendant-Appellant.\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. SPEARMAN 3\n\nElana Shavit Artson (argued), Assistant United States\nAttorney, Criminal Appeals Section; L. Ashley Aull, Chief,\nCriminal Division; Nicola T. Hanna, United States Attorney;\nUnited States Attorney’s Office, Los Angeles, California;\nfor Plaintiff-Appellee.\n\n\n\n ORDER\n\n This case is remanded with instructions that the district\ncourt proceed with re-sentencing in light of, and in\naccordance with, the First Step Act of 2018, S. 756, 115th\nCong. (2018) (enacted but not yet codified). Under the Act,\n“[a] court that imposed a sentence for a covered offense may,\non motion of . . . the court, impose a reduced sentence as if\nsections 2 and 3 of the Fair Sentencing Act of 2010 (Public\nLaw 111-220; 124 Stat. 2372) were in effect at the time the\ncovered offense was committed.” First Step Act § 404(b).\nHad section 2 of the Fair Sentencing Act of 2010 been in\neffect at the time Spearman committed his offense, he would\nhave been subject to “a term of imprisonment which may not\nbe less than 10 years and not more than life imprisonment\n. . . .” 21 U.S.C. § 841(b)(1)(B).\n\n This case is remanded for this limited purpose only and\nwithout prejudice to the arguments made on appeal. We\nretain jurisdiction over the certified claims in the 28 U.S.C.\n§ 2255 appeal. The parties shall bear their own costs of\nappeal.\n\n REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360245/", "author_raw": ""}]}	SIDNEY R THOMAS	KIM MCLANE WARDLAW	MARSHA S BERZON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582992/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Ira Spearman\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 16-55177\n Plaintiff-Appellee,\n D.C. No.\n v. 2:93-cr-01027-TJH-1\n\nIRA VINCENT SPEARMAN,\n Defendant-Appellant. ORDER\n\n\n\n Filed January 18, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and Kim McLane\n Wardlaw and Marsha S. Berzon, Circuit Judges.\n\n Order\n\f2 UNITED STATES V. SPEARMAN\n\n SUMMARY \n\n\n First Step Act of 2018\n\n The panel remanded a criminal case with instructions\nthat the district court proceed with re-sentencing in light of,\nand in accordance with, the First Step Act of 2018.\n\n Under the First Step Act, a court that imposed a sentence\nfor a covered sentence may impose a reduced sentence as if\nsections 2 and 3 of the Fair Sentencing Act of 2010 were in\neffect at the time the covered offense was committed. The\npanel wrote that had section 2 of the Fair Sentencing Act of\n2010 been in effect at the time the defendant committed his\noffense, he would have been subject to “a term of\nimprisonment which may not be less than 10 years and not\nmore than life imprisonment.”\n\n The panel remanded for this limited purpose only and\nwithout prejudice to the arguments made on appeal. The\npanel retained jurisdiction over the certified claims in the 28\nU.S.C. § 2255 appeal.\n\n\n COUNSEL\n\nMichael Romano (argued) and Sophie Wood, Three Strikes\nProject, Stanford Law School, Stanford, California, for\nDefendant-Appellant.\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. SPEARMAN 3\n\nElana Shavit Artson (argued), Assistant United States\nAttorney, Criminal Appeals Section; L. Ashley Aull, Chief,\nCriminal Division; Nicola T. Hanna, United States Attorney;\nUnited States Attorney’s Office, Los Angeles, California;\nfor Plaintiff-Appellee.\n\n\n\n ORDER\n\n This case is remanded with instructions that the district\ncourt proceed with re-sentencing in light of, and in\naccordance with, the First Step Act of 2018, S. 756, 115th\nCong. (2018) (enacted but not yet codified). Under the Act,\n“[a] court that imposed a sentence for a covered offense may,\non motion of . . . the court, impose a reduced sentence as if\nsections 2 and 3 of the Fair Sentencing Act of 2010 (Public\nLaw 111-220; 124 Stat. 2372) were in effect at the time the\ncovered offense was committed.” First Step Act § 404(b).\nHad section 2 of the Fair Sentencing Act of 2010 been in\neffect at the time Spearman committed his offense, he would\nhave been subject to “a term of imprisonment which may not\nbe less than 10 years and not more than life imprisonment\n. . . .” 21 U.S.C. § 841(b)(1)(B).\n\n This case is remanded for this limited purpose only and\nwithout prejudice to the arguments made on appeal. We\nretain jurisdiction over the certified claims in the 28 U.S.C.\n§ 2255 appeal. The parties shall bear their own costs of\nappeal.\n\n REMANDED.\n[END_CASE]", "role": "user" } ]
4,582,993		Rocky Mountain Farmers Union v. Richard Corey	2019-01-18	17-16881	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Dorothy W. Nelson, Ronald M. Gould, and Mary H. Murguia, Circuit Judges.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nROCKY MOUNTAIN FARMERS UNION; No. 17-16881\nREDWOOD COUNTY MINNESOTA\nCORN AND SOYBEAN GROWERS; D.C. Nos.\nPENNY NEWMAN GRAIN, INC.; REX 1:09-cv-02234-\nNEDEREND; FRESNO COUNTY FARM LJO-BAM\nBUREAU; NISEI FARMERS LEAGUE; 1:10-cv-00163-\nCALIFORNIA DAIRY CAMPAIGN; LJO-BAM\nGROWTH ENERGY,\n Plaintiffs-Appellants,\n\n and\n\nAMERICAN FUEL & PETROCHEMICAL\nMANUFACTURERS ASSOCIATION,\nFKA National Petrochemical &\nRefiners Association; AMERICAN\nTRUCKINGS ASSOCIATIONS; THE\nCONSUMER ENERGY ALLIANCE,\n Plaintiffs,\n\n v.\n\nRICHARD W. COREY, in his official\ncapacity as Executive Officer of the\nCalifornia Air Resources Board;\nALEXANDER SHERRIFFS; BARBARA\nRIORDAN; HECTOR DE LA TORRE;\nJOHN EISENHUT; JOHN GIOIA; MARY\nD. NICHOLS; RON ROBERTS; DANIEL\n\f2 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n\nSPERLING; SANDRA BERG; JOHN R.\nBALMES; PHIL SERNA; DEAN\nFLOREZ; DIANE TAKVORIAN; JUDY A.\nMITCHELL, in their official capacities\nas members of the California Air\nResources Board; GAVIN NEWSOM,\nin his official capacity as Governor\nof the State of California; XAVIER\nBECERRA, in his official capacity as\nAttorney General of the State of\nCalifornia,\n Defendants-Appellees,\n\nSIERRA CLUB; CONSERVATION LAW\nFOUNDATION; ENVIRONMENTAL\nDEFENSE FUND; NATURAL\nRESOURCES DEFENSE COUNCIL,\n Intervenor-Defendants-Appellees.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 3\n\n\nROCKY MOUNTAIN FARMERS UNION; No. 17-16882\nREDWOOD COUNTY MINNESOTA\nCORN AND SOYBEAN GROWERS; D.C. Nos.\nPENNY NEWMAN GRAIN, INC.; REX 1:09-cv-02234-\nNEDEREND; FRESNO COUNTY FARM LJO-BAM\nBUREAU; NISEI FARMERS LEAGUE; 1:10-cv-00163-\nCALIFORNIA DAIRY CAMPAIGN; LJO-BAM\nGROWTH ENERGY,\n Plaintiffs,\n OPINION\n and\n\nAMERICAN FUEL & PETROCHEMICAL\nMANUFACTURERS ASSOCIATION,\nFKA National Petrochemical &\nRefiners Association; AMERICAN\nTRUCKINGS ASSOCIATIONS; THE\nCONSUMER ENERGY ALLIANCE,\n Plaintiffs-Appellants,\n\n v.\n\nRICHARD W. COREY, in his official\ncapacity as Executive Officer of the\nCalifornia Air Resources Board;\nALEXANDER SHERRIFFS; BARBARA\nRIORDAN; HECTOR DE LA TORRE;\nJOHN EISENHUT; JOHN GIOIA; MARY\nD. NICHOLS; RON ROBERTS; DANIEL\nSPERLING; SANDRA BERG; JOHN R.\nBALMES; PHIL SERNA; DEAN\nFLOREZ; DIANE TAKVORIAN; JUDY A.\nMITCHELL, in their official capacities\nas members of the California Air\n\f4 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n\nResources Board; GAVIN NEWSOM,\nin his official capacity as Governor\nof the State of California; XAVIER\nBECERRA, in his official capacity as\nAttorney General of the State of\nCalifornia,\n Defendants-Appellees,\n\nSIERRA CLUB; CONSERVATION LAW\nFOUNDATION; ENVIRONMENTAL\nDEFENSE FUND; NATURAL\nRESOURCES DEFENSE COUNCIL,\n Intervenor-Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Lawrence J. O’Neill, Chief Judge, Presiding\n\n Argued and Submitted September 26, 2018\n Pasadena, California\n\n Filed January 18, 2019\n\n Before: Dorothy W. Nelson, Ronald M. Gould,\n and Mary H. Murguia, Circuit Judges.\n\n Opinion by Judge Gould\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 5\n\n SUMMARY \n\n\n Civil Rights\n\n The panel vacated in part and affirmed in part the district\ncourt’s judgment on the pleadings and Fed. R. Civ. P.\n12(b)(6) dismissal of an action alleging that the previous and\ncurrent versions of California’s Low Carbon Fuel Standard\nviolate the Commerce Clause and the “federal structure of\nthe Constitution.”\n\n Plaintiffs challenged three iterations of California Air\nResources Board regulations aimed at accomplishing the\ngoal of reducing the rate of greenhouse gas emissions in\nCalifornia’s transportation sector: (1) the first Low Carbon\nFuel Standard, which went into effect in 2011; (2) the Low\nCarbon Fuel Standard, as amended in 2012; and (3) the 2015\nLow Carbon Fuel Standard. The 2011 Low Carbon Fuel\nStandard established a program for the regulation of\nCalifornian transportation fuels based on a fuels’ “carbon\nintensity.” The 2015 Low Carbon Fuel Standard repealed the\n2011 Low Carbon Fuel Standard and the 2012 amendments.\n\n The panel held that plaintiffs’ challenges to the 2011 and\n2012 versions of the Low Carbon Fuel Standard were made\nmoot by their repeal. The panel therefore vacated the district\ncourt’s judgment as to those challenges and remanded with\ninstructions to dismiss those claims.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f6 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n Affirming the district court’s decision as to the claims\nchallenging the 2015 Low Carbon Fuel Standard, the panel\nheld that the claims were largely precluded by this Court’s\nprior decision in Rocky Mountain Farmers Union v. Corey,\n730 F.3d 1070 (9th Cir. 2013). The panel held that,\npractically speaking, the controlling substance at the crux of\nthe case had not changed since 2011. The panel noted that\nthe 2015 Fuel Standard still uses a lifecycle analysis to\nassign credits and deficits, and although some details had\nchanged, plaintiffs did not and could not explain how their\nextraterritoriality claims under the Commerce Clause\nfunctioned differently against the new version of the\nregulation.\n\n The panel rejected plaintiffs’ assertion that their claims\nwere based on the “federal structure of the Constitution” and\ntherefore were not controlled by Rocky Mountain. The panel\nheld that plaintiffs had not identified which constitutional\nprovisions or doctrine outside the Commerce Clause\ngoverned their structural federalism claims. Moreover, the\npanel held that it was bound by recent Circuit precedent that\nsettled whether a program very similar to the Low Carbon\nFuel Standard was inconsistent with the structure of the\nConstitution. See Am. Fuel & Petrochemical Mfrs. v.\nO’Keeffe, 903 F.3d 903 (9th Cir. 2018). Finally, the panel\nrejected plaintiffs’ claim that the 2015 Low Carbon Fuel\nStandard facially discriminated against interstate commerce\nin its treatment of ethanol and crude oil or that it\npurposefully discriminated against out-of-state ethanol.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 7\n\n COUNSEL\n\nPaul J. Zidlicky (argued), Clayton G. Northouse, and Erika\nL. Maley, Sidney Austin LLP, Washington, D.C.; John C.\nO’Quinn, Kirkland & Ellis LLP, Washington, D.C.; John P.\nKinsey and Timothy Jones, Wagner Jones Helsley PC,\nFresno, California; for Plaintiffs-Appellants.\n\nM. Elaine Meckenstock (argued), Jonathan Wiener, and\nMyung J. Park, Deputy Attorneys General; Gavin G.\nMcCabe, Supervising Attorney General; Robert W. Byrne,\nSenior Assistant Attorney General; Xavier Becerra,\nAttorney General; Office of the Attorney General, Oakland,\nCalifornia; Sean H. Donahue, Donahue Goldberg & Weaver\nLLP, Washington, D.C.; Joanne Spalding, Sierra Club,\nOakland, California; David Pettit, Natural Resources\nDefense Council, Santa Monica, California; for Defendants-\nAppellees.\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n In 2013, we decided the first appeal in a long-running,\ncomplex challenge to California’s Low Carbon Fuel\nStandard (LCFS) under the Commerce Clause in Rocky\nMountain Farmers Union v. Corey, rejecting some of\nPlaintiffs’ claims and remanding for further proceedings on\nothers. Rocky Mountain Farmers Union v. Corey, 730 F.3d\n1070 (9th Cir. 2013) reh’g en banc denied, 704 F.3d 507 (9th\nCir. 2014), and cert. denied, 134 S. Ct. 2875 (2014)\n(hereinafter Rocky Mountain I). That challenge returns to us\ntoday. In the intervening years, the LCFS has been repealed\nand replaced, and Plaintiffs’ claims have changed form, but\n\f8 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nboth the regulations and the claims have the same core\nstructure now as they did then. We hold that Plaintiffs’\nchallenges to previous versions of the LCFS have been made\nmoot by their repeal, and we affirm the dismissal of their\nremaining claims against the present version of the LCFS as\nlargely precluded by our prior decision in Rocky Mountain I.\nTo the extent Plaintiffs raise new arguments on this appeal,\nwe conclude that they are without merit.\n\n I\n\n A\n\n Since 2006, the California Air Resources Board (CARB)\nhas acted under a mandate to reduce California’s rate of\ngreenhouse gas emissions in light of the California\nlegislature’s finding that “[g]lobal warming poses a serious\nthreat to the economic well-being, public health, natural\nresources, and the environment of California.” Cal. Health\n& Safety Code § 38501. The California legislature is rightly\nconcerned with the health and welfare of humans living in\nthe State of California. These persons may be subjected, for\nexample, to crumbling or swamped coastlines, rising water,\nor more intense forest fires caused by higher temperatures\nand related droughts, all of which many in the scientific\ncommunities believe are caused or intensified by the volume\nof greenhouse gas emissions. 1 The California legislators and\n\n\n 1\n See generally Intergovernmental Panel on Climate Change, Global\nWarming of 1.5 °C (2018), http://www.ipcc.ch/report/sr15/; see also\nCoral Davenport, Major Climate Report Describes a Strong Risk of\nCrisis as Early as 2040, N.Y. Times (Oct. 7, 2018),\nhttps://www.nytimes.com/2018/10/07/climate/ipcc-climate-report-\n2040.html; Seth Bornstein & Frank Jordans, ‘Weirdness Abounds’ as\nWorld Warms; Scientists Say Record Temps, Fires Made Worse by\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 9\n\nregulators who created the CARB regulation of greenhouse\ngas emissions were clearly concerned with such dreadful\nenvironmental impacts. 2 And, whatever else may be said of\nthe revolutionary colonists who framed our Constitution, it\ncannot be doubted that they respected the rights of individual\nstates to pass laws that protected human welfare, 3 see, e.g.,\nThe Federalist No. 45 at 289 (James Madison) (Clinton\nRossiter ed., 2003) (“The powers reserved to the several\nStates will extend to all the objects, which, in the ordinary\ncourse of affairs, concern the lives, liberties, and properties\nof the people; and the internal order, improvement, and\n\nHuman-Caused Climate Change, Chicago Tribune, Aug. 1, 2018, at\nC12.\n\n 2\n See S. Rules Comm., A. Floor Bill Analysis on A.B. 32, 2005–2006\nLeg., Reg. Sess. (Cal. 2006), http://leginfo.legislature.ca.gov/faces/bill\nAnalysisClient.xhtml?bill_id=200520060AB32; (discussing passage of\na bill to inter alia authorize CARB to regulate greenhouse gas emissions\nfrom transportation fuels, stating that “global climate change poses a\nserious threat to California’s economic well being, public health, and\nenvironment if aggressive actions to reduce GHG emissions are not\ntaken soon”), Cal. Envtl. Prot. Agency Air Res. Bd., Staff Report:\nInitial Statement of Reasons for Proposed Rulemaking – Proposed Re-\nAdoption of the Low Carbon Fuel Standard ES-1–2 (Dec. 2014),\nhttps://www.arb.ca.gov/regact/2015/lcfs2015/lcfs15isor.pdf (“The\nprimary goal of the LCFS regulation is to reduce the carbon intensity of\ntransportation fuels used in California . . . thereby reducing GHG\nemissions . . . .”).\n 3\n Blackstone referred to the traditional authority of the police power\nas the power to ensure “the due regulation and domestic order of the\nkingdom.” 4 William Blackstone, Commentaries 162. Bentham’s work\non constitutional codes similarly defined the police power as “a system\nof precaution, either for the prevention of crimes or of calamities.”\n3 Jeremy Bentham, The Works of Jeremy Bentham 169 (John Bowring\ned., 1843) (later cited by Tennessee v. Davis, 100 U.S. 257, 300 (1879)).\nWe cannot doubt that the calamities considered in this context are a\ncentral concern of the states as they wield this traditional power.\n\f10 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprosperity of the State.”), and recognized their broad police\npowers to accomplish this goal. See, e.g., Metro. Life Ins.\nCo. v. Massachusetts, 471 U.S. 724, 756 (1985) (“The States\ntraditionally have had great latitude under their police\npowers to legislate as ‘to the protection of the lives, limbs,\nhealth, comfort, and quiet of all persons.’” (quoting\nSlaughter-House Cases, 83 U.S. 36, 62 (1873))); Lewis v. BT\nInv. Managers, Inc., 447 U.S. 27, 36 (1980) (“[T]he States\nretain authority under their general police powers to regulate\nmatters of ‘legitimate local concern,’ even though interstate\ncommerce may be affected.”); Huron Portland Cement Co.\nv. City of Detroit, 362 U.S. 440, 442 (1960) (“Legislation\ndesigned to free [the air] from pollution . . . clearly falls\nwithin the exercise of even the most traditional concept of\n. . . the police power.”).\n\n We are presented with several versions of the challenged\nCARB regulations that regulate fuel sales in California. This\ncase concerns three iterations of CARB regulations aimed at\naccomplishing the goal of reducing the rate of greenhouse\ngas emissions in California’s transportation sector: (1) the\nfirst LCFS, which went into effect in 2011; (2) the LCFS as\namended in 2012; and (3) and the LCFS which replaced the\nfirst LCFS in 2015.\n\n The function of the 2011 and 2012 versions of the LCFS\nwas heavily discussed and analyzed in Rocky Mountain I and\nno current factual allegations have disturbed our summary of\nthem. See Rocky Mountain I, 730 F.3d at 1078–86 (9th Cir.\n2013). We reaffirm, finding Rocky Mountain I’s conclusions\nbinding here. Id. at 1106–07.\n\n In brief, the 2011 LCFS established a program for the\nregulation of Californian transportation fuels based on the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 11\n\nfuels’ “carbon intensity.” 4 See Rocky Mountain I, 730 F.3d\nat 1080–81. Parties who sell fuel in California are assessed\nfor the carbon intensity of those fuels, and parties who fall\nbelow the carbon intensity standard gain tradeable credits\nthat can be used by parties who are above the carbon\nintensity standard to meet their regulatory obligations.\nCARB assigns carbon intensity differently for different\nkinds of fuels, and the 2012 amendments to the LCFS, while\nretaining this basic structure, changed the precise procedure\nfor assigning carbon intensity values to crude oil.\n\n In 2013, after our decision in Rocky Mountain I, a\ndecision in California state court based on the state’s\nadministrative law required CARB to reconsider the LCFS.\nSee POET, LLC v. CARB, 218 Cal. App. 4th 681, 766–67\n(2013) (requiring CARB to “[s]et aside its approval of the\nLCFS”). This led to the currently-effective LCFS (the “2015\nLCFS”) that repealed the 2011 LCFS and, of course, the\n2012 amendments. The method and structure of the 2015\nLCFS is identical to the 2011 LCFS, and it still contains the\ncentral carbon intensity and lifecycle analysis elements. The\nchanges that are material for this appeal are limited to the\n\n\n\n\n 4\n A fuel’s carbon intensity rating reflects the greenhouse gas\nemissions associated with the fuel throughout its total “lifecycle.”\nRather than measuring carbon released during the fuel’s use, the\nlifecycle analysis examines the environmental impact of a product\nfrom “cradle to grave” by evaluating the resources consumed and wastes\ndischarged during the product’s production, distribution, use,\nmaintenance, and disposal. See generally U.S. Dept. of Energy, Ethanol:\nThe Complete Energy Lifecycle Picture (March 2007),\nhttps://www1.eere.energy.gov/vehiclesandfuels/pdfs/program/ethanol_\nbrochure_color.pdf (providing an overview of the lifecycle analysis\nmodel).\n\f12 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprocess for assigning carbon intensity values to non-crude\noil fuels.\n\n The 2011 LCFS gave two different pathways for\nregulated parties to have the carbon intensity of their fuels\nassessed. Under “Method 1,” CARB provided default values\nfor different fuels with different production procedures from\ndifferent parts of the country and the world. Rocky Mountain\nI, 730 F.3d at 1082. Regulated parties could also use\n“Method 2,” which provided different options aimed at\ngiving a more individualized assessment of a fuel’s carbon\nintensity. Id. The 2015 LCFS abandons the Method 1\nprocess and assigns an individualized carbon intensity to\neach fuel, streamlining the application process for some\nconventionally produced fuels that CARB had previous\nexperience in evaluating. This change means that no part of\nthe LCFS now refers to particular regions of origin, as the\n2011 LCFS had. See Rocky Mountain I, 730 F.3d at 1081–\n84.\n\n B\n\n The first version of this case began in 2009 and 2010,\nwhen Plaintiffs-Appellants Rocky Mountain Farmers’\nUnion et al. (“Rocky Mountain”) and American Fuels &\nPetrochemical Manufacturers Association et al. (“American\nFuels”) separately challenged the 2011 LCFS under the\nCommerce Clause and the Supremacy Clause, bringing Ex\nParte Young actions against CARB members, California’s\nGovernor, and California’s Attorney General seeking\ndeclaratory and injunctive relief. Rocky Mountain argued\nthat the 2011 LCFS was preempted by the Energy\nIndependence and Security Act of 2007 (EISA), regulated\ncommerce extraterritorially, unduly burdened interstate\ncommerce, and discriminated against out-of-state fuel\ninterests. American Fuels made the same claims and added\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 13\n\nclaims that the 2011 LCFS was preempted by the Energy\nPolicy Act of 2005 and the federal Renewable Fuels\nStandard (RFS).\n\n The district court granted summary judgment to the\nplaintiffs on Rocky Mountain and American Fuels’s\nCommerce Clause claims and granted Rocky Mountain’s\nmotion for a preliminary injunction. See Rocky Mountain\nFarmers Union v. Goldstene (“Rocky Mountain Ethanol”),\n843 F. Supp. 2d 1071, 1090, 1093 (E.D. Cal. 2011); Rocky\nMountain Farmers Union v. Goldstene (“Rocky Mountain\nPreemption”), 843 F. Supp. 2d 1042, 1070 (E.D. Cal. 2011);\nRocky Mountain Farmers Union v. Goldstene (“Rocky\nMountain Crude”), Nos. CV-F-09-2234 LJO DLB, CV-F-\n10-163 LJO DLB, 2011 WL 6936368, at 12–14 (E.D. Cal.\nDec. 29, 2011). The appeals of these orders were\nconsolidated and heard by the Ninth Circuit in Rocky\nMountain I. 730 F.3d at 1078.\n\n In Rocky Mountain I, we reversed the district court,\nholding that the 2011 LCFS did not facially discriminate\nagainst interstate commerce in ethanol or crude oil, did not\nregulate extraterritorially, and did not discriminate in\npurpose or effect against crude oil. Id. at 1100, 1103–04,\n1107. We also held that the LCFS permissibly regulated the\nin-state behavior of selling different mixtures of fuel, and\nthat the use of lifecycle analysis did not amount to\ndiscrimination against interstate commerce because it\ndisincentivized the purchase of a fuel only to the extent that\nthat fuel was relevantly different with respect to California’s\nlegitimate interest in curbing greenhouse gas emissions and\nclimate change. Id. at 1089–90. Plaintiffs’ petition for\nrehearing en banc was denied, 704 F.3d 507 (9th Cir. 2014),\nas were petitions for a writ of certiorari from both Plaintiffs\n\f14 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nand Defendants. See 134 S. Ct. 2875 (2014); Corey v. Rocky\nMountain Farmers Union, 134 S. Ct. 2884 (2014).\n\n Our panel remanded on the following issues: (1) whether\nthe 2011 LCFS ethanol provisions discriminate in purpose\nor in effect, (2) whether the 2011 LCFS ethanol provisions\nunduly burden interstate commerce under Pike v. Bruce\nChurch, Inc., 397 U.S. 137 (1970), (3) whether the 2011 and\n2012 LCFS crude oil provisions unduly burden interstate\ncommerce under Pike, (4) whether the LCFS is preempted\nby the federal RFS and (5) whether the LCFS is preempted\nby the federal EISA. Rocky Mountain I, 730 F.3d at 1107;\nsee also Rocky Mountain Farmers Union v. Goldstene, Nos.\n1:09-cv-2234-LJO-BAM, 1:10-cv-163-LJO-BAM, 2014\nWL 7004725, at 6 (E.D. Cal. Dec. 11, 2014) (hereinafter\nGoldstene) (summarizing the questions the district court\nreceived on remand).\n\n C\n\n On remand, Plaintiffs’ claims went through a series of\namendments and decisions to reach their current form. In\nDecember of 2014, the district court granted in part a motion\nto amend American Fuels’s complaint. This amendment\nresulted in a complaint that also challenged the 2012\namendments to the LCFS’s crude oil provisions, added a\n“horizontal federalism” aspect to its extraterritoriality claim,\nand eliminated American Fuels’s Pike and federal\npreemption claims. See Goldstene, 2014 WL 7004725, at\n18.\n\n The district court then further clarified its position by\ngranting summary judgment for Defendants on Plaintiffs’\nextraterritoriality claim against the original LCFS, granting\na motion to dismiss on Plaintiffs’ extraterritoriality claim\nagainst the 2012 version of the LCFS, granting summary\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 15\n\njudgment for Defendants on Plaintiffs’ facial discrimination\nclaims against the original LCFS with respect to ethanol,\ngranting summary judgment for Defendants on all of\nPlaintiffs’ discrimination claims against the original LCFS\nand the 2012 version with respect to crude oil, and denying\na motion to dismiss Plaintiffs’ claim that the original ethanol\nprovisions discriminate in purpose and effect. Am. Fuels &\nPetrochemical Mfrs. Ass’n v. Corey, Nos. 1:09-cv-2234-\nLJO-BAM, 1:10-cv-163-LJO-BAM, 2015 WL 5096279, at\n38–39 (Aug. 28, 2015).\n\n The complaints were amended again to reflect the 2015\nversion of the LCFS, and the district court heard motions to\ndismiss and motions for judgment on the pleadings. The\namended complaints alleged that all three versions of the\nLCFS are preempted by federal law, that all three versions\nare impermissible extraterritorial regulations, and that all\nthree versions violate the Commerce Clause facially, in\npurpose and effect, and under the Pike balancing test, which\nremained in issue under the claims of Rocky Mountain\ndespite prior dismissal in the American Fuels case. The\ndistrict court held that Plaintiffs’ claims against the repealed\nversions of the LCFS were not moot. Nevertheless, it\ngranted Federal Rule of Civil Procedure 12(c) motions for\njudgment on the claims precluded by Rocky Mountain I and\ngranted 12(b)(6) motions to dismiss on most of the other\nclaims. The court denied the motions to dismiss on\nPlaintiffs’ claims that the ethanol provisions of the 2011 and\n2015 versions of the LCFS discriminate in practical effect\nand that they violate Pike. Rather than contest these\nremaining claims, Plaintiffs voluntarily dismissed them, and\nthe district court entered a final judgment.\n\n Plaintiffs now appeal the district court’s decision on\nclaims challenging the 2015 version of the LCFS, as well as\n\f16 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprevious orders deciding the prior motions to dismiss.\nAppellants claim that all three versions of the LCFS violate\nthe following constitutional protections:\n\n the Commerce Clause and “the federal structure of\n the Constitution” by regulating extraterritorially.\n\n the Commerce Clause by facially discriminating\n against interstate and foreign commerce in their\n treatment of crude oil and ethanol.\n\n the Commerce Clause by purposefully\n discriminating against interstate and foreign\n commerce in their treatment of crude oil and ethanol.\n\n II\n\n We review legal conclusions concerning mootness de\nnovo and factual findings concerning mootness for clear\nerror. In re Thorpe Insulation Co., 677 F.3d 869, 879 (9th\nCir. 2012). We review a district court’s dismissal of a\ncomplaint under Federal Rule of Civil Procedure 12(b)(6) de\nnovo. United States v. Corinthian Colleges, 655 F.3d 984,\n991 (9th Cir. 2011). We review a district court’s entry of\njudgment under Federal Rule of Civil Procedure 12(c) de\nnovo. Yakima Valley Mem’l Hosp. v. Washington State\nDept. of Health, 654 F.3d 919, 925 (9th Cir. 2011).\n\n III\n\n First we examine whether Plaintiffs’ claims against the\nrepealed 2011 and 2012 versions of the LCFS are moot. The\ndistrict court held that, in light of a discussion of mootness\nin a footnote in Rocky Mountain I, the repeal or amendment\nof older versions of the LCFS did not render Plaintiffs’\nclaims against those regulations moot. Whatever the status\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 17\n\nof Plaintiffs’ claims in 2013, we now hold that no effective\nrelief can be provided for these claims, and that they are now\nmoot. We vacate the district court’s judgment on them and\nremand with directions to dismiss them as moot.\n\n As noted in Rocky Mountain I, a case is moot “only when\nit is impossible for a court to grant any effectual relief.”\nRocky Mountain I, 730 F.3d at 1097 n.12 (quoting Decker v.\nNw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013)). However,\n“the Supreme Court and our court have repeatedly held that\na case is moot when the challenged statute is repealed,\nexpires, or is amended to remove the challenged language.”\nLog Cabin Republicans v. United States, 658 F.3d 1162,\n1166 (9th Cir. 2011). Where there is nothing left of a\nchallenged law to enjoin or declare illegal, further judicial\naction would necessarily be advisory and in violation of the\nlimitations of Article III. See, e.g., id. at 1165–66\n(describing this doctrine as arising out of the case or\ncontroversy requirements of Article III); Students for a\nConservative America v. Greenwood, 378 F.3d 1129, 1131\n(9th Cir. 2004) (“This case is moot . . . because the\nchallenged rules have been changed and will not apply in\nfuture elections.”); Native Vill. of Noatak v. Blatchford, 38\nF.3d 1505, 1514 (9th Cir. 1994) (“Declaratory relief is\nunavailable where [a] claim is otherwise moot . . . .”). To\ntest whether subsequent developments have mooted a suit,\nwe ask whether the claim could have been brought “in light\nof the . . . statute as it now stands.” Hall v. Beals, 396 U.S.\n45, 48 (1969).\n\n Plaintiffs’ claims arising from the 2011 and 2012\nversions of the LCFS fail this test. The laws challenged are\nno longer in effect, Plaintiffs’ obligations under them have\nbeen discharged, and it is not possible for the Court to grant\nany effectual relief, as the 2011 and 2012 versions of the\n\f18 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nLCFS have been repealed. As such, Plaintiffs are in the same\nboat as the plaintiffs in Log Cabin Republicans, in which we\nsaid that “[i]f Log Cabin filed suit today seeking a\ndeclaration that section 654 is unconstitutional or an\ninjunction against its application (or both), there would be\nno Article III controversy because there is no section 654.”\n658 F.3d at 1166.\n\n Rocky Mountain I did not hold otherwise when it briefly\nconsidered whether the 2012 amendments had made the\nPlaintiffs’ 2013 challenge to the crude oil provisions of the\n2011 LCFS moot. The court held that the amendments had\nnot mooted Plaintiffs’ claims, because “[c]redits awarded\nbased on [carbon intensity values calculated under the\nchallenged 2011 Provisions] will carry forward to\nsubsequent years and may be used by a regulated party” and\n“[t]he propriety of the scheme under which those credits\nwere distributed remains a live controversy.” Rocky\nMountain I, 730 F.3d at 1097 n.12. This statement reflected\nthe fact that, as we were deciding this issue, the 2011 LCFS,\nas partially amended in 2012, was good law and could have\nbeen subject to any number of declaratory or injunctive\nremedies. Although it is true that credits awarded under\nprior versions of the LCFS could have future effects, it is no\nlonger true that the scheme under which those credits were\ndistributed remains a live controversy and challenges to it\ncan no longer be brought, as the 2011 and 2012 versions\nhave been repealed. If the present LCFS inherited any\nconstitutional infirmities from its predecessor, these must be\npart of Plaintiffs’ challenge to the law as it currently stands.\n\n Plaintiffs argued to the district court that they could seek\n“the adjustment of the carry-forward credits calculated under\nthe prior version of the LCFS” as a remedy to save these\nchallenges from mootness. For good reason, Plaintiffs have\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 19\n\nsince abandoned this claim. As the district court correctly\nheld, any such remedy would be barred for Plaintiff\nassociations by a lack of associational standing, and barred\nfor all Plaintiffs by the Eleventh Amendment. In order to try\nto compensate parties for unconstitutionally low credits or\nunconstitutionally high deficits awarded under prior\nversions of the LCFS, the court would have to determine\nhow each party changed its behavior in response and how\nmuch those changes cost each party, determinations that\nwould be impossible without “the participation of individual\nmembers in the lawsuit.” United Food & Commercial\nWorkers Union Local 751 v. Brown Group, Inc., 517 U.S.\n544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert.\nCom’n, 432 U.S. 333, 343 (1977)). Moreover, any such\nrelief could only be compensation for a state’s past violation\nof law, which is barred by the Eleventh Amendment. See\nPennhurst State School & Hospital v. Halderman, 465 U.S.\n89, 105–06 (1984) (“[A]n award of retroactive relief\nnecessarily falls afoul of the Eleventh Amendment.”); see\nalso Porter v. Jones, 319 F.3d 483, 491 n.7 (9th Cir. 2003)\n(“[P]laintiff may not couch in terms of injunctive and\ndeclaratory relief a compensatory, backward-looking\nremedy.”). 5\n\n The district court’s judgment on all of Plaintiffs’\nchallenges to the 2011 and 2012 versions of the LCFS is\nVACATED with instructions to DISMISS those claims on\nremand. See Log Cabin Republicans, 658 F.3d at 1167\n(citing United States v. Munsingwear, Inc., 340 U.S. 36, 39\n\n 5\n Assuming for sake of argument that we are incorrect in our\nconclusion on mootness, and that the challenges by Plaintiffs to the 2011\nand 2012 versions of the LCFS are not moot, then we would affirm as\nagainst those challenges for the reasons stated by the majority in Rocky\nMountain I.\n\f20 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n(1950)) (describing this procedure as “the ‘established’\npractice”).\n\n IV\n\n Plaintiffs assert that the 2015 LCFS regulates\nextraterritorially, having amended their claims to include the\n2015 LCFS and an allegation that the LCFS violates the\nfederal structure of the Constitution in addition to the\nCommerce Clause. The district court granted Defendants’\nmotion to dismiss on the basis that this claim is precluded by\nRocky Mountain I. Plaintiffs contend that their appeals in\nthe current case include a claim based on the federal\nstructure of the Constitution that was not decided in Rocky\nMountain I. We hold that Plaintiffs’ extraterritoriality\nclaims against the 2015 LCFS are precluded by the law of\nthe case and by our recent circuit precedent in Am. Fuel &\nPetrochemical Mfrs. v. O’Keeffe, 903 F.3d 903 (9th Cir.\n2018) (hereinafter O’Keeffe). 6\n\n A\n\n The law of the case doctrine generally precludes\nreconsideration of “an issue that has already been decided by\nthe same court, or a higher court in the identical case.”\nUnited States v. Alexander, 106 F.3d 874, 876 (9th Cir.\n1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.\n1993)). In a circumstance like this, “a judgment of reversal\n\n 6\n On September 12, 2018, the Plaintiffs-Appellants filed a Motion\nto Dispense with Oral Argument, asserting that argument was not needed\nbecause to the extent the appeal raised issues not governed by the rulings\nin Rocky Mountain I, O’Keeffe resolved those issues. Plaintiffs said they\ndisagreed with that ruling, but that it was binding on the court in this\ncase. Our panel denied the motion on September 14, 2018, and we\naddress all pertinent issues in this opinion.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 21\n\nby an appellate court is an adjudication only of matters\nexpressly discussed and decided, which become the law of\nthe case in further proceedings on remand and re-appeal.”\nHansen & Rowland v. C.F. Lytle Co., 167 F.2d 998, 999 (9th\nCir. 1948). To show that an issue is not controlled by the\nlaw of the case, parties must show that it was not “decided\nexplicitly or by necessary implication” by a prior decision.\nUnited States v. Garvia-Beltran, 443 F.3d 1126, 1129 (9th\nCir. 2006) (quoting Liberty Mut. Ins. Co. v. EEOC, 691 F.2d\n438, 441 (9th Cir. 1982)). As a prudential rather than\njurisdictional doctrine, the law of the case doctrine does not\napply “if the court is convinced that its prior decision is\nclearly erroneous and would work a manifest injustice.”\nPepper v. United States, 562 U.S. 476, 506–07 (2011)\n(internal quotation marks and brackets omitted) (quoting\nAgostini v. Felton, 521 U.S. 203, 236 (1997)).\n\n Rocky Mountain I expressly decided Plaintiffs’\nextraterritoriality claims against the 2011 and 2012 versions\nof the LCFS. Because these claims are now moot, the only\nextraterritoriality claims remaining are those against the\n2015 LCFS. Strictly speaking, Rocky Mountain I did not,\nfor obvious reasons, address any claims Plaintiffs may have\nhad against the 2015 LCFS. Practically speaking, however,\nthe controlling substance at the crux of the case has not\nchanged. The 2015 LCFS still uses lifecycle analysis to\nassign credits and deficits, and although some details have\nchanged, Plaintiffs do not and cannot explain how their\nextraterritoriality claims under the Commerce Clause\nfunction differently against the new version of the\nregulation. Moreover, by deciding that California’s use of\nlifecycle analysis “does not control the production or sale”\nof out-of-state fuel and that “California may regulate with\nreference to local harms, structuring its internal markets to\nset incentives for firms to produce less harmful products for\n\f22 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nsale in California,” Rocky Mountain I necessarily implied\nthat an extraterritoriality challenge to a functionally identical\nregulation would fail. Rocky Mountain I, 730 F.3d at 1104.\n\n We are not convinced that our decision in Rocky\nMountain I is “clearly erroneous” such that its application\n“would work a manifest injustice.” Pepper, 562 U.S. at 506–\n07. Rocky Mountain I examined the LCFS under the test\nprovided by Healy, which holds that a regulation is\nimpermissibly extraterritorial when “the practical effect of\nthe regulation is to control conduct beyond the boundary of\nthe state.” Rocky Mountain I, 730 F.3d at 1101 (citing Healy\nv. Beer Inst., 491 U.S. 324, 336 (1989)). By holding that\nCalifornia may “regulate with reference to local harms,\nstructuring its internal markets to set incentives for firms to\nproduce less harmful products for sale in California,” Rocky\nMountain I properly respected the separate sovereignty of\nthe several states. Id. at 1104.\n\n Rocky Mountain I followed a well-worn path of\nprecedent. States may seek to influence which products are\nsold in-state, distinguishing impermissible statutes that\n“regulate out-of-state parties directly” from those that\n“regulate[] contractual relationships in which at least one\nparty is located in [the regulating state].” Gravquick A/S v.\nTrimble Navigation Int’l Ltd., 323 F.3d 1219, 1224 (9th Cir.\n2003). This is true even where the characteristics of the\nproducts at market are not at issue. See Ass’n des Eleveurs\nde Canards et d'Oies du Quebec v. Harris, 729 F.3d 937,\n947–52 (9th Cir. 2013) (holding that a ban on selling foie\ngras created by force-feeding did not discriminate against or\nregulate out-of-state commerce); Pharm. Research & Mfrs.\nof Am. v. Walsh, 538 U.S. 644, 669 (2003) (holding that\nMaine may impose regulatory burdens on drug\nmanufacturers who do not have a rebate agreement with the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 23\n\nstate). The Commerce Clause also does not treat regulations\nthat have upstream effects on how sellers who sell to\nCalifornia buyers produce their goods as being necessarily\nextraterritorial. See Minnesota v. Clover Leaf Creamery Co.,\n449 U.S. 456, 472 (1981); Exxon Corp. v. Maryland,\n437 U.S. 117, 125–28 (1978). And as C&A Carbone, Inc. v.\nTown of Clarkstown emphasized, local governments are\nempowered to issue “uniform safety regulations” which\n“would ensure that competitors . . . do not underprice the\nmarket by cutting corners on environmental safety.”\n511 U.S. 383, 393 (1994). In other words, subjecting both\nin and out-of-jurisdiction entities to the same regulatory\nscheme to make sure that out-of-jurisdiction entities are\nsubject to consistent environmental standards is a traditional\nuse of the State’s police power; it is not an extension of\n“police power beyond its jurisdictional bounds.” Id. The\nLCFS helps California and its citizens by ensuring that out-\nof-state fuels do not benefit in Californian markets by\n“cutting corners” and not being subject to California’s\nregulations on the resulting greenhouse gases.\n\n Rocky Mountain I reflects the commonplace proposition\nthat states may regulate to minimize the in-state harm caused\nby products sold in-state, a central aspect of the state\nsovereignty protected by the Constitution. See Clover Leaf\nCreamery Co., 449 U.S. at 471–74; Sam Francis Found. v.\nChristies, Inc., 784 F.3d 1320, 1324 (9th Cir. 2015) (en\nbanc) (commenting that Rocky Mountain I “concerned state\nlaw[] that regulated in-state conduct with allegedly\nsignificant out-of-state practical effects”); Brannon P.\nDenning, Extraterritoriality and the Dormant Commerce\nClause: A Doctrinal Post-Mortem, 73 La. L. Rev. 979, 998–\n99 (2013) (noting that a contrary expansive view of the\nHealy doctrine “could have become a significant restriction\non state regulatory power” if the Court had adopted it). The\n\f24 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nLCFS does this without crossing into impermissible inter-\nstate regulation. See Edgar v. MITE Corp., 457 U.S. 624,\n642–43 (1982) (holding an state statute conflicted with the\nCommerce Clause because it regulated transactions in other\nstates); Nat’l Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d\n652, 653–54 (7th Cir. 1995) (holding a state statute violated\nthe Commerce Clause because it effectively required other\nstates to adopt similar regulations); Healy, 491 U.S. at 331–\n39 (holding that a state statute violated the Commerce\nClause because it had the practical effect of establishing\nscale of prices for use in other states); Brown-Forman\nDistillers Corp. v. New York State Liquor Authority,\n476 U.S. 573 (1986) (same); Baldwin v. G.A.F. Seelig, Inc.,\n294 U.S. 511, 521 (1935) (same).\n\n Finally, we squarely reject Plaintiff-Appellants’\narguments that California’s interest in the LCFS is merely a\nconcern for the environmental harms that are properly\nsubject to the police power of other states rather than of\nCalifornia. As we held in Rocky Mountain I, the LCFS was\nenacted pursuant to California’s view that “[g]lobal warming\nposes a serious threat to the economic well-being, public\nhealth, natural resources, and the environment of\nCalifornia.” Cal. Health & Safety Code § 38501(a).\nCalifornia did not enact the LCFS because it thinks that it is\nthe state that knows how best to protect Iowa’s farms,\nMaine’s fisheries, or Michigan’s lakes. California’s interest\nin the lifecycle of the fuels used by its consumers arises from\na concern for the effects of the production and use of these\nfuels on California’s own air quality, snowpack, and\ncoastline. Here, the regulated parties, the regulated\ntransactions, and the harms California intended to prevent\nare all within the state’s borders, making the LCFS a classic\nexercise of police power. We cannot say that California is\ndoing anything other than legislating “with reference to its\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 25\n\nown jurisdiction” in promulgating the LCFS. Bonaparte v.\nAppeal Tax Court of Balt., 104 U.S. 592, 594 (1881).\n\n B\n\n Having previously lost on their Commerce Clause\nargument in Rocky Mountain I, Plaintiffs now advance their\nnew constitutional argument, contending that their claims\nare based on the “federal structure of the Constitution” and\nare not controlled by Rocky Mountain I. Plaintiffs have not\nidentified which constitutional provisions or doctrine\noutside the Commerce Clause they believe govern their\nstructural federalism claims, if any do. However, our panel\nneed not linger on whether the Constitution could support\nsuch a claim, because we are bound by recent circuit\nprecedent that has settled whether a program very similar to\nthe LCFS is inconsistent with the structure of the\nConstitution. See O’Keeffe, 903 F.3d at 916–17. The\nO’Keeffe court held that “irrespective of its constitutional\nbasis, any such claim is necessarily contingent upon a\nfinding that the [regulating state’s] program regulates and\nattempts to control conduct that occurs in other states.” Id.\n(quoting Goldstene, 2014 WL 7004725, at *13–14). As\ndiscussed above, we settled this precise question for the\nLCFS in Rocky Mountain I, and O’Keeffe is not materially\ndistinguishable from our current case.\n\n There is simply no reason to search beyond the\nCommerce Clause for the Constitution’s limits on the ability\nof states to affect interstate commerce. While the Supreme\nCourt has frequently instructed us on the general principles\nthat “all States enjoy equal sovereignty,” Shelby County,\nAla. v. Holder, 570 U.S. 529, 534 (2013), and that states may\nnot “regulate and control activities wholly beyond [their]\nboundaries,” Watson v. Emp’rs Liab. Assurance Corp.,\n348 U.S. 66, 70 (1954), Commerce Clause jurisprudence is\n\f26 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nthe relevant application of those general principles to this\ncontext. The states, in forming the Union, “reserve[d] . . . a\nsubstantial portion of the Nation’s primary sovereignty,”\nand, because of this, constitutional restrictions on the police\npower of the states should not be lightly inferred. Alden v.\nMaine, 527 U.S. 706, 714 (1999). Our federalism doctrine\nalready has one “quagmire” of doctrine, independent of the\nconstitutional text, concerned with the effects of state\nregulation on interstate commerce. West Lynn Creamery v.\nHealy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring). We\nshould decline to create another.\n\n The district court’s decision as to Plaintiffs’\nextraterritoriality claims against the 2015 LCFS is\nAFFIRMED.\n\n V\n\n Plaintiffs contend for a second time that the LCFS\nfacially discriminates against interstate commerce in its\ntreatment of ethanol and crude oil, having amended their\nclaims to include the 2015 LCFS. The district court\nconcluded that Plaintiffs’ claims against the 2015 LCFS\nshould be dismissed based on Rocky Mountain I, and we\nagree.\n\n Rocky Mountain I rejected facial discrimination\nchallenges to the 2011 LCFS, holding that the “lifecycle\nanalysis used by CARB, including the specific factors to\nwhich Plaintiffs object, does not discriminate against out-of-\nstate commerce” and that CARB’s decision to distinguish\nbetween different fuels reflected its “expert regulatory\njudgment” in aiming to produce “accurate carbon intensity\nvalues.” 730 F.3d at 1093, 1096. These features remain in\nthe 2015 LCFS, and rather than contending that the new law\ndiscriminates in some different way, Plaintiffs concede that\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 27\n\ntheir facial discrimination challenges are based on the same\npremises. In fact, these claims have only been weakened by\nintervening regulatory developments. The original LCFS\nappealed to default pathways with regional characteristics,\nwhich were a major source of the facial discrimination\nclaims in Rocky Mountain I. See id. at 1096. The 2015\nLCFS eliminates the regional pathways and gives every\nalternative fuel an individualized assessment, making no\ndefault assumptions based on region of origin. 2015 LCFS\n§ 95488(b), (c). It is not surprising then that Plaintiffs\nconcede that their facial discrimination claims are controlled\nby Rocky Mountain I.\n\n Because ruling in favor of Plaintiffs on their facial\ndiscrimination claim would require rejecting Rocky\nMountain I on issues it expressly reached and decided, the\nlaw of the case prevents us from endorsing Plaintiffs’ claims\nagainst the 2015 LCFS unless we believe that “[our] prior\ndecision is clearly erroneous and would work a manifest\ninjustice.” Pepper, 562 U.S. at 506–07. As we do not, we\naffirm the district court’s dismissal.\n\n As Rocky Mountain I reflects, the Commerce Clause\nrespects both the concerns of the national marketplace and\nthe central value of local autonomy in our federal system.\nSee Rocky Mountain I, 730 F.3d at 1087. These principles\nrequire us to take into account the potential indirect effects\nof a state’s regulation of in-state activities insofar as they\nmay affect out-of-state commerce. However, the lens\nthrough which we view this analysis must reflect the fact that\na state’s ability to control its internal markets and combat\nlocal harms is squarely within its traditional police power.\nOur Commerce Clause jurisprudence reflects the fact that\n“the Framers’ distrust of economic Balkanization was\nlimited by their federalism favoring a degree of local\n\f28 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nautonomy.” Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328,\n338 (2008) (examining the history and rationale for the\nCommerce Clause). Rocky Mountain I was correct to hold\nthat the LCFS was permissible local regulation under this\nbalance of considerations.\n\n State autonomy in the regulation of economic and social\naffairs is central to our system because of the recognized role\nstates have as laboratories, trying “novel social and\neconomic experiments without risk to the rest of the\ncountry.” Rocky Mountain I, 730 F.3d at 1087 (citing New\nState Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)\n(Brandeis, J., dissenting)); see also Reeves, Inc. v. Stake,\n447 U.S. 429, 441 (1980) (arguing that in light of State\nexperimentation in policy “[a] healthy regard for federalism\nand good government renders us reluctant” to strike down a\nstate program under the dormant Commerce Clause).\nBecause any meaningful regulation of in-state commerce\nmay have indirect but significant interstate impacts, we\nshould be reluctant to subject states to unwarranted scrutiny\nunder the Commerce Clause for fear that we will frustrate\n“the theory and utility of our federalism” by restricting the\nability of the states to “perform their role as laboratories for\nexperimentation . . . where the best solution is far from\nclear.” United States v. Lopez, 514 U.S. 549, 581 (1995)\n(Kennedy, J., concurring).\n\n California has attempted to address a vitally important\nenvironmental issue with vast potential consequences.\nO’Keeffe, 903 F.3d at 913 (citing Massachusetts v. EPA,\n549 U.S. 497, 522–23 (2007)) (recognizing that “[i]t is well\nsettled that states have a legitimate interest in combating the\nadverse effects of climate change on their residents.”). It\nseems clear beyond dispute that potential climate change\nposes one of the most difficult challenges facing all\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 29\n\ncivilizations worldwide for the twenty-first century. By\nrecognizing emissions that occur throughout the lifecycle of\ndifferent fuels, California has offered a potential solution to\nthe perverse incentives that would otherwise undermine any\nattempt to assess and regulate the carbon impact of different\nfuels. See Rocky Mountain I, 730 F.3d 1081. This\nexperiment cannot succeed without the ability to\ndifferentiate the different production processes and power\ngeneration that are used to produce those fuels. Moreover,\nthe value of California’s experimentation is reinforced by the\nfact that other states can and will follow suit by using any\nlawful procedure that proves effective as a model. That is\nwhat happened in the Oregon Clean Fuels Program. Id. at\n907–10.\n\n The Constitution does not require California to shut its\neyes to the fact that some ethanol is produced with coal and\nother ethanol is produced with natural gas because these\nkinds of energy production are not evenly dispersed across\nthe country or because other states have not chosen to\nregulate the production of greenhouse gases. If the states are\nto remain a source of “innovative and far-reaching statutes”\nthat “supplemen[t] national standards,” they must be\npermitted to submit the goods and services sold within their\nborders to certain environmental standards without having\nthereby discriminated against interstate commerce from\nstates with lower local standards. FERC v. Mississippi, 456\nU.S. 742, 789 (1982) (O’Connor, J., concurring in part and\ndissenting in part).\n\n The district court’s decision as to Plaintiffs’ facial\ndiscrimination claims against the 2015 LCFS is\nAFFIRMED.\n\f30 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n VI\n\n We previously remanded to the district court in Rocky\nMountain I on the Plaintiffs’ claim that the LCFS\npurposefully discriminates against out-of-state ethanol. The\ndistrict court dismissed this claim, finding that “Plaintiffs\nma[de] no meaningful effort to differentiate the factual and\nlegal bases of their claims concerning the Original LCFS’s\nethanol provisions . . . and the bases of their pending claim\nthat the 2015 LCFS’s ethanol provisions have a\ndiscriminatory purpose.” We agree and affirm.\n\n In Rocky Mountain I, we left open the possibility that\nPlaintiffs might have been able to show that the LCFS’s\ntreatment of carbon intensity, although it reflected facially\npermissible differences between different kinds of fuels, was\nactually enacted to prop up local fuel interests. Rather than\ntake advantage of the opportunity to develop this claim on\nremand, however, Plaintiffs rely on the same basic set of\nfacts and alleged statements of bias that we heard in Rocky\nMountain I. As the district court found, “Plaintiffs have not\npointed to any portion of the LCFS’s legislative history that\nthe Ninth Circuit did not consider.”\n\n Although we declined to foreclose Plaintiffs’ purposeful\ndiscrimination claim, the district court is correct that “the\nlogic and record underlying all of Plaintiffs’ claims against\nthe ethanol provisions . . . has not changed.” The only new\nmaterial is a 2009 CARB press release that the district court\ncorrectly held was a permissible “economic defense of a\n[regulation] genuinely proposed for environmental reasons.”\nRocky Mountain I, 730 F.3d at 1100 n.13 (citing Minnesota\nv. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981)\n(“We will not invalidate a state statute under the Equal\nProtection Clause merely because some legislators sought to\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 31\n\nobtain votes for the measure on the basis of its beneficial side\neffects on state industry.”)).\n\n As we noted in Rocky Mountain I, “[t]he party\nchallenging a regulation bears the burden of establishing that\na challenged regulation has a discriminatory purpose or\neffect under the Commerce Clause.” 730 F.3d at 1097 (citing\nHughes v. Oklahoma, 441 U.S. 322, 336 (1979)). This\nburden is all that much higher to meet in the face of our\nholding that the structure of the LCFS does not show\nevidence of discrimination. Under the LCFS, the relative\nfate of in-state and out-of-state entities depends entirely on\nthe environmental properties of different fuel production and\ntransport processes. If the Midwest were to undergo a green\nrevolution in its energy production, the LCFS would act as a\ncompetitive drag on California energy producers. In fact,\nRocky Mountain I recognized that it had already done so with\nrespect to portions of the market. See, e.g., Rocky Mountain\nI, 730 F.3d at 1084 (“The individualized pathway with the\nlowest carbon intensity was achieved by a Midwest producer\n. . .[and] [t]he default pathway with the lowest carbon\nintensity is . . . for Brazilian sugarcane ethanol . . . .”).\n\n In light of these facts about the LCFS’s design, Plaintiffs\ndo not meet their burden of showing a discriminatory\npurpose. Plaintiffs do not advance any evidence concerning\nthe purpose of the new regulation, the only law now subject\nto challenge. Plaintiffs’ arguments rely primarily on\nCalifornia’s motivations for passing the different versions of\nthe LCFS that were applicable in 2009 and 2010. This is\nfatal to their case. In both its design and its legislative\njustifications, the LCFS is a regulation aimed at salient\nenvironmental differences between different types of fuels,\ndifferences which genuinely reflect legitimate state interests.\nWe reject the bald suggestion that the California LCFS is\n\f32 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\ndisguised economic protectionism. Instead, we reaffirm the\nconclusions that were set forth in part VI of Rocky Mountain\nI because those conclusions remain pertinent to the claims\nnow presented:\n\n The California legislature has determined\n that the state faces tremendous risks from\n climate change. With its long coastlines\n vulnerable to rising waters, large population\n that needs food and water, sizable deserts that\n can expand with sustained increased heat,\n and vast forests that may become tinderboxes\n with too little rain, California is uniquely\n vulnerable to the perils of global warming.\n The California legislature determined that\n GHG emissions from the production and\n distribution of transportation fuels contribute\n to this risk, and that those emissions are\n caused by the in-state consumption of fuels.\n Whether or not one agrees with the science\n underlying those views, those determinations\n are permissible ones for the legislature to\n make, and the Supreme Court has recognized\n that these risks constitute local threats. See\n Massachusetts, 549 U.S. at 522.\n\n To combat these risks, the California\n legislature and its regulatory arm CARB\n chose to institute a market-based solution that\n recognizes the costs of harmful carbon\n emissions. For any such system to work, two\n conditions must be met. First, the market\n must have full and accurate information\n about the real extent of GHG emissions.\n Second, the compliance costs of entering the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 33\n\n market must not be so great as to prevent\n participation. Plaintiffs attack the lifecycle\n analysis and default pathways that fulfill\n these conditions, relying on archaic\n formalism to prevent action against a new\n type of harm. It has been sagely observed by\n Justice Jackson that the constitutional Bill of\n Rights is not a “suicide pact.” See\n Terminiello v. City of Chicago, 337 U.S. 1,\n 37 (1949) (Jackson, J., dissenting). Nor is the\n dormant Commerce Clause a blindfold. It\n does not invalidate by strict scrutiny state\n laws or regulations that incorporate state\n boundaries for good and non-discriminatory\n reason. It does not require that reality be\n ignored in lawmaking.\n\n California should be encouraged to\n continue and to expand its efforts to find\n a workable solution to lower carbon\n emissions, or to slow their rise. If no such\n solution is found, California residents\n and people worldwide will suffer great\n harm. We will not at the outset block\n California from developing this innovative,\n nondiscriminatory regulation to impede\n global warming. If the Fuel Standard works,\n encouraging the development of alternative\n fuels by those who would like to reach the\n California market, it will help ease\n California's climate risks and inform other\n states as they attempt to confront similar\n challenges.\n\n730 F.3d at 1106–07.\n\f34 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n These potential risks to the people living in California\nhave only intensified in the past several years. Consider that\nin the past year California saw its forest fires threat increase\nin scope, intensity, duration, and damages, caused in part by\nthe extensive droughts throughout the state. See, e.g.,\nMadison Park, California Fire Explodes in Size, Is\nNow Largest in State History, CNN.com (Aug. 7,\n2018), https://www.cnn.com/2018/08/06/us/california-fires/\nindex.html. California also saw more powerful storms\nhitting its coastlines. See, e.g., Rong-Gong Lin II, Hurricane\nRosa Poses Risk of Flash Floods to Eastern California,\nLas Vegas, Arizona, LATimes.com (Sep. 29, 2018),\nhttp://www.latimes.com/local/lanow/la-me-ln-rain-20180929-\nstory.html.\n\n The district court’s decision as to Plaintiffs’ purpose and\neffect discrimination claims against the 2015 LCFS is\nAFFIRMED.\n\n VII\n\n The district court’s decision as to the Plaintiffs’\nchallenges to the 2015 LCFS is AFFIRMED. We\nVACATE its judgment as to the challenges to the 2011 and\n2012 versions of the LCFS and REMAND with instructions\nto dismiss them as moot.\n\n Costs are awarded to the Defendants.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360246/", "author_raw": "GOULD, Circuit Judge:"}]}	DOROTHY W NELSON	RONALD M GOULD	MARY H MURGUIA	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582993/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Rocky Mountain Farmers Union v. Richard Corey\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nROCKY MOUNTAIN FARMERS UNION; No. 17-16881\nREDWOOD COUNTY MINNESOTA\nCORN AND SOYBEAN GROWERS; D.C. Nos.\nPENNY NEWMAN GRAIN, INC.; REX 1:09-cv-02234-\nNEDEREND; FRESNO COUNTY FARM LJO-BAM\nBUREAU; NISEI FARMERS LEAGUE; 1:10-cv-00163-\nCALIFORNIA DAIRY CAMPAIGN; LJO-BAM\nGROWTH ENERGY,\n Plaintiffs-Appellants,\n\n and\n\nAMERICAN FUEL & PETROCHEMICAL\nMANUFACTURERS ASSOCIATION,\nFKA National Petrochemical &\nRefiners Association; AMERICAN\nTRUCKINGS ASSOCIATIONS; THE\nCONSUMER ENERGY ALLIANCE,\n Plaintiffs,\n\n v.\n\nRICHARD W. COREY, in his official\ncapacity as Executive Officer of the\nCalifornia Air Resources Board;\nALEXANDER SHERRIFFS; BARBARA\nRIORDAN; HECTOR DE LA TORRE;\nJOHN EISENHUT; JOHN GIOIA; MARY\nD. NICHOLS; RON ROBERTS; DANIEL\n\f2 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n\nSPERLING; SANDRA BERG; JOHN R.\nBALMES; PHIL SERNA; DEAN\nFLOREZ; DIANE TAKVORIAN; JUDY A.\nMITCHELL, in their official capacities\nas members of the California Air\nResources Board; GAVIN NEWSOM,\nin his official capacity as Governor\nof the State of California; XAVIER\nBECERRA, in his official capacity as\nAttorney General of the State of\nCalifornia,\n Defendants-Appellees,\n\nSIERRA CLUB; CONSERVATION LAW\nFOUNDATION; ENVIRONMENTAL\nDEFENSE FUND; NATURAL\nRESOURCES DEFENSE COUNCIL,\n Intervenor-Defendants-Appellees.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 3\n\n\nROCKY MOUNTAIN FARMERS UNION; No. 17-16882\nREDWOOD COUNTY MINNESOTA\nCORN AND SOYBEAN GROWERS; D.C. Nos.\nPENNY NEWMAN GRAIN, INC.; REX 1:09-cv-02234-\nNEDEREND; FRESNO COUNTY FARM LJO-BAM\nBUREAU; NISEI FARMERS LEAGUE; 1:10-cv-00163-\nCALIFORNIA DAIRY CAMPAIGN; LJO-BAM\nGROWTH ENERGY,\n Plaintiffs,\n OPINION\n and\n\nAMERICAN FUEL & PETROCHEMICAL\nMANUFACTURERS ASSOCIATION,\nFKA National Petrochemical &\nRefiners Association; AMERICAN\nTRUCKINGS ASSOCIATIONS; THE\nCONSUMER ENERGY ALLIANCE,\n Plaintiffs-Appellants,\n\n v.\n\nRICHARD W. COREY, in his official\ncapacity as Executive Officer of the\nCalifornia Air Resources Board;\nALEXANDER SHERRIFFS; BARBARA\nRIORDAN; HECTOR DE LA TORRE;\nJOHN EISENHUT; JOHN GIOIA; MARY\nD. NICHOLS; RON ROBERTS; DANIEL\nSPERLING; SANDRA BERG; JOHN R.\nBALMES; PHIL SERNA; DEAN\nFLOREZ; DIANE TAKVORIAN; JUDY A.\nMITCHELL, in their official capacities\nas members of the California Air\n\f4 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n\nResources Board; GAVIN NEWSOM,\nin his official capacity as Governor\nof the State of California; XAVIER\nBECERRA, in his official capacity as\nAttorney General of the State of\nCalifornia,\n Defendants-Appellees,\n\nSIERRA CLUB; CONSERVATION LAW\nFOUNDATION; ENVIRONMENTAL\nDEFENSE FUND; NATURAL\nRESOURCES DEFENSE COUNCIL,\n Intervenor-Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Lawrence J. O’Neill, Chief Judge, Presiding\n\n Argued and Submitted September 26, 2018\n Pasadena, California\n\n Filed January 18, 2019\n\n Before: Dorothy W. Nelson, Ronald M. Gould,\n and Mary H. Murguia, Circuit Judges.\n\n Opinion by Judge Gould\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 5\n\n SUMMARY \n\n\n Civil Rights\n\n The panel vacated in part and affirmed in part the district\ncourt’s judgment on the pleadings and Fed. R. Civ. P.\n12(b)(6) dismissal of an action alleging that the previous and\ncurrent versions of California’s Low Carbon Fuel Standard\nviolate the Commerce Clause and the “federal structure of\nthe Constitution.”\n\n Plaintiffs challenged three iterations of California Air\nResources Board regulations aimed at accomplishing the\ngoal of reducing the rate of greenhouse gas emissions in\nCalifornia’s transportation sector: (1) the first Low Carbon\nFuel Standard, which went into effect in 2011; (2) the Low\nCarbon Fuel Standard, as amended in 2012; and (3) the 2015\nLow Carbon Fuel Standard. The 2011 Low Carbon Fuel\nStandard established a program for the regulation of\nCalifornian transportation fuels based on a fuels’ “carbon\nintensity.” The 2015 Low Carbon Fuel Standard repealed the\n2011 Low Carbon Fuel Standard and the 2012 amendments.\n\n The panel held that plaintiffs’ challenges to the 2011 and\n2012 versions of the Low Carbon Fuel Standard were made\nmoot by their repeal. The panel therefore vacated the district\ncourt’s judgment as to those challenges and remanded with\ninstructions to dismiss those claims.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f6 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n Affirming the district court’s decision as to the claims\nchallenging the 2015 Low Carbon Fuel Standard, the panel\nheld that the claims were largely precluded by this Court’s\nprior decision in Rocky Mountain Farmers Union v. Corey,\n730 F.3d 1070 (9th Cir. 2013). The panel held that,\npractically speaking, the controlling substance at the crux of\nthe case had not changed since 2011. The panel noted that\nthe 2015 Fuel Standard still uses a lifecycle analysis to\nassign credits and deficits, and although some details had\nchanged, plaintiffs did not and could not explain how their\nextraterritoriality claims under the Commerce Clause\nfunctioned differently against the new version of the\nregulation.\n\n The panel rejected plaintiffs’ assertion that their claims\nwere based on the “federal structure of the Constitution” and\ntherefore were not controlled by Rocky Mountain. The panel\nheld that plaintiffs had not identified which constitutional\nprovisions or doctrine outside the Commerce Clause\ngoverned their structural federalism claims. Moreover, the\npanel held that it was bound by recent Circuit precedent that\nsettled whether a program very similar to the Low Carbon\nFuel Standard was inconsistent with the structure of the\nConstitution. See Am. Fuel & Petrochemical Mfrs. v.\nO’Keeffe, 903 F.3d 903 (9th Cir. 2018). Finally, the panel\nrejected plaintiffs’ claim that the 2015 Low Carbon Fuel\nStandard facially discriminated against interstate commerce\nin its treatment of ethanol and crude oil or that it\npurposefully discriminated against out-of-state ethanol.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 7\n\n COUNSEL\n\nPaul J. Zidlicky (argued), Clayton G. Northouse, and Erika\nL. Maley, Sidney Austin LLP, Washington, D.C.; John C.\nO’Quinn, Kirkland & Ellis LLP, Washington, D.C.; John P.\nKinsey and Timothy Jones, Wagner Jones Helsley PC,\nFresno, California; for Plaintiffs-Appellants.\n\nM. Elaine Meckenstock (argued), Jonathan Wiener, and\nMyung J. Park, Deputy Attorneys General; Gavin G.\nMcCabe, Supervising Attorney General; Robert W. Byrne,\nSenior Assistant Attorney General; Xavier Becerra,\nAttorney General; Office of the Attorney General, Oakland,\nCalifornia; Sean H. Donahue, Donahue Goldberg & Weaver\nLLP, Washington, D.C.; Joanne Spalding, Sierra Club,\nOakland, California; David Pettit, Natural Resources\nDefense Council, Santa Monica, California; for Defendants-\nAppellees.\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n In 2013, we decided the first appeal in a long-running,\ncomplex challenge to California’s Low Carbon Fuel\nStandard (LCFS) under the Commerce Clause in Rocky\nMountain Farmers Union v. Corey, rejecting some of\nPlaintiffs’ claims and remanding for further proceedings on\nothers. Rocky Mountain Farmers Union v. Corey, 730 F.3d\n1070 (9th Cir. 2013) reh’g en banc denied, 704 F.3d 507 (9th\nCir. 2014), and cert. denied, 134 S. Ct. 2875 (2014)\n(hereinafter Rocky Mountain I). That challenge returns to us\ntoday. In the intervening years, the LCFS has been repealed\nand replaced, and Plaintiffs’ claims have changed form, but\n\f8 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nboth the regulations and the claims have the same core\nstructure now as they did then. We hold that Plaintiffs’\nchallenges to previous versions of the LCFS have been made\nmoot by their repeal, and we affirm the dismissal of their\nremaining claims against the present version of the LCFS as\nlargely precluded by our prior decision in Rocky Mountain I.\nTo the extent Plaintiffs raise new arguments on this appeal,\nwe conclude that they are without merit.\n\n I\n\n A\n\n Since 2006, the California Air Resources Board (CARB)\nhas acted under a mandate to reduce California’s rate of\ngreenhouse gas emissions in light of the California\nlegislature’s finding that “[g]lobal warming poses a serious\nthreat to the economic well-being, public health, natural\nresources, and the environment of California.” Cal. Health\n& Safety Code § 38501. The California legislature is rightly\nconcerned with the health and welfare of humans living in\nthe State of California. These persons may be subjected, for\nexample, to crumbling or swamped coastlines, rising water,\nor more intense forest fires caused by higher temperatures\nand related droughts, all of which many in the scientific\ncommunities believe are caused or intensified by the volume\nof greenhouse gas emissions. 1 The California legislators and\n\n\n 1\n See generally Intergovernmental Panel on Climate Change, Global\nWarming of 1.5 °C (2018), http://www.ipcc.ch/report/sr15/; see also\nCoral Davenport, Major Climate Report Describes a Strong Risk of\nCrisis as Early as 2040, N.Y. Times (Oct. 7, 2018),\nhttps://www.nytimes.com/2018/10/07/climate/ipcc-climate-report-\n2040.html; Seth Bornstein & Frank Jordans, ‘Weirdness Abounds’ as\nWorld Warms; Scientists Say Record Temps, Fires Made Worse by\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 9\n\nregulators who created the CARB regulation of greenhouse\ngas emissions were clearly concerned with such dreadful\nenvironmental impacts. 2 And, whatever else may be said of\nthe revolutionary colonists who framed our Constitution, it\ncannot be doubted that they respected the rights of individual\nstates to pass laws that protected human welfare, 3 see, e.g.,\nThe Federalist No. 45 at 289 (James Madison) (Clinton\nRossiter ed., 2003) (“The powers reserved to the several\nStates will extend to all the objects, which, in the ordinary\ncourse of affairs, concern the lives, liberties, and properties\nof the people; and the internal order, improvement, and\n\nHuman-Caused Climate Change, Chicago Tribune, Aug. 1, 2018, at\nC12.\n\n 2\n See S. Rules Comm., A. Floor Bill Analysis on A.B. 32, 2005–2006\nLeg., Reg. Sess. (Cal. 2006), http://leginfo.legislature.ca.gov/faces/bill\nAnalysisClient.xhtml?bill_id=200520060AB32; (discussing passage of\na bill to inter alia authorize CARB to regulate greenhouse gas emissions\nfrom transportation fuels, stating that “global climate change poses a\nserious threat to California’s economic well being, public health, and\nenvironment if aggressive actions to reduce GHG emissions are not\ntaken soon”), Cal. Envtl. Prot. Agency Air Res. Bd., Staff Report:\nInitial Statement of Reasons for Proposed Rulemaking – Proposed Re-\nAdoption of the Low Carbon Fuel Standard ES-1–2 (Dec. 2014),\nhttps://www.arb.ca.gov/regact/2015/lcfs2015/lcfs15isor.pdf (“The\nprimary goal of the LCFS regulation is to reduce the carbon intensity of\ntransportation fuels used in California . . . thereby reducing GHG\nemissions . . . .”).\n 3\n Blackstone referred to the traditional authority of the police power\nas the power to ensure “the due regulation and domestic order of the\nkingdom.” 4 William Blackstone, Commentaries 162. Bentham’s work\non constitutional codes similarly defined the police power as “a system\nof precaution, either for the prevention of crimes or of calamities.”\n3 Jeremy Bentham, The Works of Jeremy Bentham 169 (John Bowring\ned., 1843) (later cited by Tennessee v. Davis, 100 U.S. 257, 300 (1879)).\nWe cannot doubt that the calamities considered in this context are a\ncentral concern of the states as they wield this traditional power.\n\f10 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprosperity of the State.”), and recognized their broad police\npowers to accomplish this goal. See, e.g., Metro. Life Ins.\nCo. v. Massachusetts, 471 U.S. 724, 756 (1985) (“The States\ntraditionally have had great latitude under their police\npowers to legislate as ‘to the protection of the lives, limbs,\nhealth, comfort, and quiet of all persons.’” (quoting\nSlaughter-House Cases, 83 U.S. 36, 62 (1873))); Lewis v. BT\nInv. Managers, Inc., 447 U.S. 27, 36 (1980) (“[T]he States\nretain authority under their general police powers to regulate\nmatters of ‘legitimate local concern,’ even though interstate\ncommerce may be affected.”); Huron Portland Cement Co.\nv. City of Detroit, 362 U.S. 440, 442 (1960) (“Legislation\ndesigned to free [the air] from pollution . . . clearly falls\nwithin the exercise of even the most traditional concept of\n. . . the police power.”).\n\n We are presented with several versions of the challenged\nCARB regulations that regulate fuel sales in California. This\ncase concerns three iterations of CARB regulations aimed at\naccomplishing the goal of reducing the rate of greenhouse\ngas emissions in California’s transportation sector: (1) the\nfirst LCFS, which went into effect in 2011; (2) the LCFS as\namended in 2012; and (3) and the LCFS which replaced the\nfirst LCFS in 2015.\n\n The function of the 2011 and 2012 versions of the LCFS\nwas heavily discussed and analyzed in Rocky Mountain I and\nno current factual allegations have disturbed our summary of\nthem. See Rocky Mountain I, 730 F.3d at 1078–86 (9th Cir.\n2013). We reaffirm, finding Rocky Mountain I’s conclusions\nbinding here. Id. at 1106–07.\n\n In brief, the 2011 LCFS established a program for the\nregulation of Californian transportation fuels based on the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 11\n\nfuels’ “carbon intensity.” 4 See Rocky Mountain I, 730 F.3d\nat 1080–81. Parties who sell fuel in California are assessed\nfor the carbon intensity of those fuels, and parties who fall\nbelow the carbon intensity standard gain tradeable credits\nthat can be used by parties who are above the carbon\nintensity standard to meet their regulatory obligations.\nCARB assigns carbon intensity differently for different\nkinds of fuels, and the 2012 amendments to the LCFS, while\nretaining this basic structure, changed the precise procedure\nfor assigning carbon intensity values to crude oil.\n\n In 2013, after our decision in Rocky Mountain I, a\ndecision in California state court based on the state’s\nadministrative law required CARB to reconsider the LCFS.\nSee POET, LLC v. CARB, 218 Cal. App. 4th 681, 766–67\n(2013) (requiring CARB to “[s]et aside its approval of the\nLCFS”). This led to the currently-effective LCFS (the “2015\nLCFS”) that repealed the 2011 LCFS and, of course, the\n2012 amendments. The method and structure of the 2015\nLCFS is identical to the 2011 LCFS, and it still contains the\ncentral carbon intensity and lifecycle analysis elements. The\nchanges that are material for this appeal are limited to the\n\n\n\n\n 4\n A fuel’s carbon intensity rating reflects the greenhouse gas\nemissions associated with the fuel throughout its total “lifecycle.”\nRather than measuring carbon released during the fuel’s use, the\nlifecycle analysis examines the environmental impact of a product\nfrom “cradle to grave” by evaluating the resources consumed and wastes\ndischarged during the product’s production, distribution, use,\nmaintenance, and disposal. See generally U.S. Dept. of Energy, Ethanol:\nThe Complete Energy Lifecycle Picture (March 2007),\nhttps://www1.eere.energy.gov/vehiclesandfuels/pdfs/program/ethanol_\nbrochure_color.pdf (providing an overview of the lifecycle analysis\nmodel).\n\f12 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprocess for assigning carbon intensity values to non-crude\noil fuels.\n\n The 2011 LCFS gave two different pathways for\nregulated parties to have the carbon intensity of their fuels\nassessed. Under “Method 1,” CARB provided default values\nfor different fuels with different production procedures from\ndifferent parts of the country and the world. Rocky Mountain\nI, 730 F.3d at 1082. Regulated parties could also use\n“Method 2,” which provided different options aimed at\ngiving a more individualized assessment of a fuel’s carbon\nintensity. Id. The 2015 LCFS abandons the Method 1\nprocess and assigns an individualized carbon intensity to\neach fuel, streamlining the application process for some\nconventionally produced fuels that CARB had previous\nexperience in evaluating. This change means that no part of\nthe LCFS now refers to particular regions of origin, as the\n2011 LCFS had. See Rocky Mountain I, 730 F.3d at 1081–\n84.\n\n B\n\n The first version of this case began in 2009 and 2010,\nwhen Plaintiffs-Appellants Rocky Mountain Farmers’\nUnion et al. (“Rocky Mountain”) and American Fuels &\nPetrochemical Manufacturers Association et al. (“American\nFuels”) separately challenged the 2011 LCFS under the\nCommerce Clause and the Supremacy Clause, bringing Ex\nParte Young actions against CARB members, California’s\nGovernor, and California’s Attorney General seeking\ndeclaratory and injunctive relief. Rocky Mountain argued\nthat the 2011 LCFS was preempted by the Energy\nIndependence and Security Act of 2007 (EISA), regulated\ncommerce extraterritorially, unduly burdened interstate\ncommerce, and discriminated against out-of-state fuel\ninterests. American Fuels made the same claims and added\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 13\n\nclaims that the 2011 LCFS was preempted by the Energy\nPolicy Act of 2005 and the federal Renewable Fuels\nStandard (RFS).\n\n The district court granted summary judgment to the\nplaintiffs on Rocky Mountain and American Fuels’s\nCommerce Clause claims and granted Rocky Mountain’s\nmotion for a preliminary injunction. See Rocky Mountain\nFarmers Union v. Goldstene (“Rocky Mountain Ethanol”),\n843 F. Supp. 2d 1071, 1090, 1093 (E.D. Cal. 2011); Rocky\nMountain Farmers Union v. Goldstene (“Rocky Mountain\nPreemption”), 843 F. Supp. 2d 1042, 1070 (E.D. Cal. 2011);\nRocky Mountain Farmers Union v. Goldstene (“Rocky\nMountain Crude”), Nos. CV-F-09-2234 LJO DLB, CV-F-\n10-163 LJO DLB, 2011 WL 6936368, at 12–14 (E.D. Cal.\nDec. 29, 2011). The appeals of these orders were\nconsolidated and heard by the Ninth Circuit in Rocky\nMountain I. 730 F.3d at 1078.\n\n In Rocky Mountain I, we reversed the district court,\nholding that the 2011 LCFS did not facially discriminate\nagainst interstate commerce in ethanol or crude oil, did not\nregulate extraterritorially, and did not discriminate in\npurpose or effect against crude oil. Id. at 1100, 1103–04,\n1107. We also held that the LCFS permissibly regulated the\nin-state behavior of selling different mixtures of fuel, and\nthat the use of lifecycle analysis did not amount to\ndiscrimination against interstate commerce because it\ndisincentivized the purchase of a fuel only to the extent that\nthat fuel was relevantly different with respect to California’s\nlegitimate interest in curbing greenhouse gas emissions and\nclimate change. Id. at 1089–90. Plaintiffs’ petition for\nrehearing en banc was denied, 704 F.3d 507 (9th Cir. 2014),\nas were petitions for a writ of certiorari from both Plaintiffs\n\f14 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nand Defendants. See 134 S. Ct. 2875 (2014); Corey v. Rocky\nMountain Farmers Union, 134 S. Ct. 2884 (2014).\n\n Our panel remanded on the following issues: (1) whether\nthe 2011 LCFS ethanol provisions discriminate in purpose\nor in effect, (2) whether the 2011 LCFS ethanol provisions\nunduly burden interstate commerce under Pike v. Bruce\nChurch, Inc., 397 U.S. 137 (1970), (3) whether the 2011 and\n2012 LCFS crude oil provisions unduly burden interstate\ncommerce under Pike, (4) whether the LCFS is preempted\nby the federal RFS and (5) whether the LCFS is preempted\nby the federal EISA. Rocky Mountain I, 730 F.3d at 1107;\nsee also Rocky Mountain Farmers Union v. Goldstene, Nos.\n1:09-cv-2234-LJO-BAM, 1:10-cv-163-LJO-BAM, 2014\nWL 7004725, at 6 (E.D. Cal. Dec. 11, 2014) (hereinafter\nGoldstene) (summarizing the questions the district court\nreceived on remand).\n\n C\n\n On remand, Plaintiffs’ claims went through a series of\namendments and decisions to reach their current form. In\nDecember of 2014, the district court granted in part a motion\nto amend American Fuels’s complaint. This amendment\nresulted in a complaint that also challenged the 2012\namendments to the LCFS’s crude oil provisions, added a\n“horizontal federalism” aspect to its extraterritoriality claim,\nand eliminated American Fuels’s Pike and federal\npreemption claims. See Goldstene, 2014 WL 7004725, at\n18.\n\n The district court then further clarified its position by\ngranting summary judgment for Defendants on Plaintiffs’\nextraterritoriality claim against the original LCFS, granting\na motion to dismiss on Plaintiffs’ extraterritoriality claim\nagainst the 2012 version of the LCFS, granting summary\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 15\n\njudgment for Defendants on Plaintiffs’ facial discrimination\nclaims against the original LCFS with respect to ethanol,\ngranting summary judgment for Defendants on all of\nPlaintiffs’ discrimination claims against the original LCFS\nand the 2012 version with respect to crude oil, and denying\na motion to dismiss Plaintiffs’ claim that the original ethanol\nprovisions discriminate in purpose and effect. Am. Fuels &\nPetrochemical Mfrs. Ass’n v. Corey, Nos. 1:09-cv-2234-\nLJO-BAM, 1:10-cv-163-LJO-BAM, 2015 WL 5096279, at\n38–39 (Aug. 28, 2015).\n\n The complaints were amended again to reflect the 2015\nversion of the LCFS, and the district court heard motions to\ndismiss and motions for judgment on the pleadings. The\namended complaints alleged that all three versions of the\nLCFS are preempted by federal law, that all three versions\nare impermissible extraterritorial regulations, and that all\nthree versions violate the Commerce Clause facially, in\npurpose and effect, and under the Pike balancing test, which\nremained in issue under the claims of Rocky Mountain\ndespite prior dismissal in the American Fuels case. The\ndistrict court held that Plaintiffs’ claims against the repealed\nversions of the LCFS were not moot. Nevertheless, it\ngranted Federal Rule of Civil Procedure 12(c) motions for\njudgment on the claims precluded by Rocky Mountain I and\ngranted 12(b)(6) motions to dismiss on most of the other\nclaims. The court denied the motions to dismiss on\nPlaintiffs’ claims that the ethanol provisions of the 2011 and\n2015 versions of the LCFS discriminate in practical effect\nand that they violate Pike. Rather than contest these\nremaining claims, Plaintiffs voluntarily dismissed them, and\nthe district court entered a final judgment.\n\n Plaintiffs now appeal the district court’s decision on\nclaims challenging the 2015 version of the LCFS, as well as\n\f16 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nprevious orders deciding the prior motions to dismiss.\nAppellants claim that all three versions of the LCFS violate\nthe following constitutional protections:\n\n the Commerce Clause and “the federal structure of\n the Constitution” by regulating extraterritorially.\n\n the Commerce Clause by facially discriminating\n against interstate and foreign commerce in their\n treatment of crude oil and ethanol.\n\n the Commerce Clause by purposefully\n discriminating against interstate and foreign\n commerce in their treatment of crude oil and ethanol.\n\n II\n\n We review legal conclusions concerning mootness de\nnovo and factual findings concerning mootness for clear\nerror. In re Thorpe Insulation Co., 677 F.3d 869, 879 (9th\nCir. 2012). We review a district court’s dismissal of a\ncomplaint under Federal Rule of Civil Procedure 12(b)(6) de\nnovo. United States v. Corinthian Colleges, 655 F.3d 984,\n991 (9th Cir. 2011). We review a district court’s entry of\njudgment under Federal Rule of Civil Procedure 12(c) de\nnovo. Yakima Valley Mem’l Hosp. v. Washington State\nDept. of Health, 654 F.3d 919, 925 (9th Cir. 2011).\n\n III\n\n First we examine whether Plaintiffs’ claims against the\nrepealed 2011 and 2012 versions of the LCFS are moot. The\ndistrict court held that, in light of a discussion of mootness\nin a footnote in Rocky Mountain I, the repeal or amendment\nof older versions of the LCFS did not render Plaintiffs’\nclaims against those regulations moot. Whatever the status\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 17\n\nof Plaintiffs’ claims in 2013, we now hold that no effective\nrelief can be provided for these claims, and that they are now\nmoot. We vacate the district court’s judgment on them and\nremand with directions to dismiss them as moot.\n\n As noted in Rocky Mountain I, a case is moot “only when\nit is impossible for a court to grant any effectual relief.”\nRocky Mountain I, 730 F.3d at 1097 n.12 (quoting Decker v.\nNw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013)). However,\n“the Supreme Court and our court have repeatedly held that\na case is moot when the challenged statute is repealed,\nexpires, or is amended to remove the challenged language.”\nLog Cabin Republicans v. United States, 658 F.3d 1162,\n1166 (9th Cir. 2011). Where there is nothing left of a\nchallenged law to enjoin or declare illegal, further judicial\naction would necessarily be advisory and in violation of the\nlimitations of Article III. See, e.g., id. at 1165–66\n(describing this doctrine as arising out of the case or\ncontroversy requirements of Article III); Students for a\nConservative America v. Greenwood, 378 F.3d 1129, 1131\n(9th Cir. 2004) (“This case is moot . . . because the\nchallenged rules have been changed and will not apply in\nfuture elections.”); Native Vill. of Noatak v. Blatchford, 38\nF.3d 1505, 1514 (9th Cir. 1994) (“Declaratory relief is\nunavailable where [a] claim is otherwise moot . . . .”). To\ntest whether subsequent developments have mooted a suit,\nwe ask whether the claim could have been brought “in light\nof the . . . statute as it now stands.” Hall v. Beals, 396 U.S.\n45, 48 (1969).\n\n Plaintiffs’ claims arising from the 2011 and 2012\nversions of the LCFS fail this test. The laws challenged are\nno longer in effect, Plaintiffs’ obligations under them have\nbeen discharged, and it is not possible for the Court to grant\nany effectual relief, as the 2011 and 2012 versions of the\n\f18 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nLCFS have been repealed. As such, Plaintiffs are in the same\nboat as the plaintiffs in Log Cabin Republicans, in which we\nsaid that “[i]f Log Cabin filed suit today seeking a\ndeclaration that section 654 is unconstitutional or an\ninjunction against its application (or both), there would be\nno Article III controversy because there is no section 654.”\n658 F.3d at 1166.\n\n Rocky Mountain I did not hold otherwise when it briefly\nconsidered whether the 2012 amendments had made the\nPlaintiffs’ 2013 challenge to the crude oil provisions of the\n2011 LCFS moot. The court held that the amendments had\nnot mooted Plaintiffs’ claims, because “[c]redits awarded\nbased on [carbon intensity values calculated under the\nchallenged 2011 Provisions] will carry forward to\nsubsequent years and may be used by a regulated party” and\n“[t]he propriety of the scheme under which those credits\nwere distributed remains a live controversy.” Rocky\nMountain I, 730 F.3d at 1097 n.12. This statement reflected\nthe fact that, as we were deciding this issue, the 2011 LCFS,\nas partially amended in 2012, was good law and could have\nbeen subject to any number of declaratory or injunctive\nremedies. Although it is true that credits awarded under\nprior versions of the LCFS could have future effects, it is no\nlonger true that the scheme under which those credits were\ndistributed remains a live controversy and challenges to it\ncan no longer be brought, as the 2011 and 2012 versions\nhave been repealed. If the present LCFS inherited any\nconstitutional infirmities from its predecessor, these must be\npart of Plaintiffs’ challenge to the law as it currently stands.\n\n Plaintiffs argued to the district court that they could seek\n“the adjustment of the carry-forward credits calculated under\nthe prior version of the LCFS” as a remedy to save these\nchallenges from mootness. For good reason, Plaintiffs have\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 19\n\nsince abandoned this claim. As the district court correctly\nheld, any such remedy would be barred for Plaintiff\nassociations by a lack of associational standing, and barred\nfor all Plaintiffs by the Eleventh Amendment. In order to try\nto compensate parties for unconstitutionally low credits or\nunconstitutionally high deficits awarded under prior\nversions of the LCFS, the court would have to determine\nhow each party changed its behavior in response and how\nmuch those changes cost each party, determinations that\nwould be impossible without “the participation of individual\nmembers in the lawsuit.” United Food & Commercial\nWorkers Union Local 751 v. Brown Group, Inc., 517 U.S.\n544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert.\nCom’n, 432 U.S. 333, 343 (1977)). Moreover, any such\nrelief could only be compensation for a state’s past violation\nof law, which is barred by the Eleventh Amendment. See\nPennhurst State School & Hospital v. Halderman, 465 U.S.\n89, 105–06 (1984) (“[A]n award of retroactive relief\nnecessarily falls afoul of the Eleventh Amendment.”); see\nalso Porter v. Jones, 319 F.3d 483, 491 n.7 (9th Cir. 2003)\n(“[P]laintiff may not couch in terms of injunctive and\ndeclaratory relief a compensatory, backward-looking\nremedy.”). 5\n\n The district court’s judgment on all of Plaintiffs’\nchallenges to the 2011 and 2012 versions of the LCFS is\nVACATED with instructions to DISMISS those claims on\nremand. See Log Cabin Republicans, 658 F.3d at 1167\n(citing United States v. Munsingwear, Inc., 340 U.S. 36, 39\n\n 5\n Assuming for sake of argument that we are incorrect in our\nconclusion on mootness, and that the challenges by Plaintiffs to the 2011\nand 2012 versions of the LCFS are not moot, then we would affirm as\nagainst those challenges for the reasons stated by the majority in Rocky\nMountain I.\n\f20 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n(1950)) (describing this procedure as “the ‘established’\npractice”).\n\n IV\n\n Plaintiffs assert that the 2015 LCFS regulates\nextraterritorially, having amended their claims to include the\n2015 LCFS and an allegation that the LCFS violates the\nfederal structure of the Constitution in addition to the\nCommerce Clause. The district court granted Defendants’\nmotion to dismiss on the basis that this claim is precluded by\nRocky Mountain I. Plaintiffs contend that their appeals in\nthe current case include a claim based on the federal\nstructure of the Constitution that was not decided in Rocky\nMountain I. We hold that Plaintiffs’ extraterritoriality\nclaims against the 2015 LCFS are precluded by the law of\nthe case and by our recent circuit precedent in Am. Fuel &\nPetrochemical Mfrs. v. O’Keeffe, 903 F.3d 903 (9th Cir.\n2018) (hereinafter O’Keeffe). 6\n\n A\n\n The law of the case doctrine generally precludes\nreconsideration of “an issue that has already been decided by\nthe same court, or a higher court in the identical case.”\nUnited States v. Alexander, 106 F.3d 874, 876 (9th Cir.\n1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.\n1993)). In a circumstance like this, “a judgment of reversal\n\n 6\n On September 12, 2018, the Plaintiffs-Appellants filed a Motion\nto Dispense with Oral Argument, asserting that argument was not needed\nbecause to the extent the appeal raised issues not governed by the rulings\nin Rocky Mountain I, O’Keeffe resolved those issues. Plaintiffs said they\ndisagreed with that ruling, but that it was binding on the court in this\ncase. Our panel denied the motion on September 14, 2018, and we\naddress all pertinent issues in this opinion.\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 21\n\nby an appellate court is an adjudication only of matters\nexpressly discussed and decided, which become the law of\nthe case in further proceedings on remand and re-appeal.”\nHansen & Rowland v. C.F. Lytle Co., 167 F.2d 998, 999 (9th\nCir. 1948). To show that an issue is not controlled by the\nlaw of the case, parties must show that it was not “decided\nexplicitly or by necessary implication” by a prior decision.\nUnited States v. Garvia-Beltran, 443 F.3d 1126, 1129 (9th\nCir. 2006) (quoting Liberty Mut. Ins. Co. v. EEOC, 691 F.2d\n438, 441 (9th Cir. 1982)). As a prudential rather than\njurisdictional doctrine, the law of the case doctrine does not\napply “if the court is convinced that its prior decision is\nclearly erroneous and would work a manifest injustice.”\nPepper v. United States, 562 U.S. 476, 506–07 (2011)\n(internal quotation marks and brackets omitted) (quoting\nAgostini v. Felton, 521 U.S. 203, 236 (1997)).\n\n Rocky Mountain I expressly decided Plaintiffs’\nextraterritoriality claims against the 2011 and 2012 versions\nof the LCFS. Because these claims are now moot, the only\nextraterritoriality claims remaining are those against the\n2015 LCFS. Strictly speaking, Rocky Mountain I did not,\nfor obvious reasons, address any claims Plaintiffs may have\nhad against the 2015 LCFS. Practically speaking, however,\nthe controlling substance at the crux of the case has not\nchanged. The 2015 LCFS still uses lifecycle analysis to\nassign credits and deficits, and although some details have\nchanged, Plaintiffs do not and cannot explain how their\nextraterritoriality claims under the Commerce Clause\nfunction differently against the new version of the\nregulation. Moreover, by deciding that California’s use of\nlifecycle analysis “does not control the production or sale”\nof out-of-state fuel and that “California may regulate with\nreference to local harms, structuring its internal markets to\nset incentives for firms to produce less harmful products for\n\f22 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nsale in California,” Rocky Mountain I necessarily implied\nthat an extraterritoriality challenge to a functionally identical\nregulation would fail. Rocky Mountain I, 730 F.3d at 1104.\n\n We are not convinced that our decision in Rocky\nMountain I is “clearly erroneous” such that its application\n“would work a manifest injustice.” Pepper, 562 U.S. at 506–\n07. Rocky Mountain I examined the LCFS under the test\nprovided by Healy, which holds that a regulation is\nimpermissibly extraterritorial when “the practical effect of\nthe regulation is to control conduct beyond the boundary of\nthe state.” Rocky Mountain I, 730 F.3d at 1101 (citing Healy\nv. Beer Inst., 491 U.S. 324, 336 (1989)). By holding that\nCalifornia may “regulate with reference to local harms,\nstructuring its internal markets to set incentives for firms to\nproduce less harmful products for sale in California,” Rocky\nMountain I properly respected the separate sovereignty of\nthe several states. Id. at 1104.\n\n Rocky Mountain I followed a well-worn path of\nprecedent. States may seek to influence which products are\nsold in-state, distinguishing impermissible statutes that\n“regulate out-of-state parties directly” from those that\n“regulate[] contractual relationships in which at least one\nparty is located in [the regulating state].” Gravquick A/S v.\nTrimble Navigation Int’l Ltd., 323 F.3d 1219, 1224 (9th Cir.\n2003). This is true even where the characteristics of the\nproducts at market are not at issue. See Ass’n des Eleveurs\nde Canards et d'Oies du Quebec v. Harris, 729 F.3d 937,\n947–52 (9th Cir. 2013) (holding that a ban on selling foie\ngras created by force-feeding did not discriminate against or\nregulate out-of-state commerce); Pharm. Research & Mfrs.\nof Am. v. Walsh, 538 U.S. 644, 669 (2003) (holding that\nMaine may impose regulatory burdens on drug\nmanufacturers who do not have a rebate agreement with the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 23\n\nstate). The Commerce Clause also does not treat regulations\nthat have upstream effects on how sellers who sell to\nCalifornia buyers produce their goods as being necessarily\nextraterritorial. See Minnesota v. Clover Leaf Creamery Co.,\n449 U.S. 456, 472 (1981); Exxon Corp. v. Maryland,\n437 U.S. 117, 125–28 (1978). And as C&A Carbone, Inc. v.\nTown of Clarkstown emphasized, local governments are\nempowered to issue “uniform safety regulations” which\n“would ensure that competitors . . . do not underprice the\nmarket by cutting corners on environmental safety.”\n511 U.S. 383, 393 (1994). In other words, subjecting both\nin and out-of-jurisdiction entities to the same regulatory\nscheme to make sure that out-of-jurisdiction entities are\nsubject to consistent environmental standards is a traditional\nuse of the State’s police power; it is not an extension of\n“police power beyond its jurisdictional bounds.” Id. The\nLCFS helps California and its citizens by ensuring that out-\nof-state fuels do not benefit in Californian markets by\n“cutting corners” and not being subject to California’s\nregulations on the resulting greenhouse gases.\n\n Rocky Mountain I reflects the commonplace proposition\nthat states may regulate to minimize the in-state harm caused\nby products sold in-state, a central aspect of the state\nsovereignty protected by the Constitution. See Clover Leaf\nCreamery Co., 449 U.S. at 471–74; Sam Francis Found. v.\nChristies, Inc., 784 F.3d 1320, 1324 (9th Cir. 2015) (en\nbanc) (commenting that Rocky Mountain I “concerned state\nlaw[] that regulated in-state conduct with allegedly\nsignificant out-of-state practical effects”); Brannon P.\nDenning, Extraterritoriality and the Dormant Commerce\nClause: A Doctrinal Post-Mortem, 73 La. L. Rev. 979, 998–\n99 (2013) (noting that a contrary expansive view of the\nHealy doctrine “could have become a significant restriction\non state regulatory power” if the Court had adopted it). The\n\f24 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nLCFS does this without crossing into impermissible inter-\nstate regulation. See Edgar v. MITE Corp., 457 U.S. 624,\n642–43 (1982) (holding an state statute conflicted with the\nCommerce Clause because it regulated transactions in other\nstates); Nat’l Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d\n652, 653–54 (7th Cir. 1995) (holding a state statute violated\nthe Commerce Clause because it effectively required other\nstates to adopt similar regulations); Healy, 491 U.S. at 331–\n39 (holding that a state statute violated the Commerce\nClause because it had the practical effect of establishing\nscale of prices for use in other states); Brown-Forman\nDistillers Corp. v. New York State Liquor Authority,\n476 U.S. 573 (1986) (same); Baldwin v. G.A.F. Seelig, Inc.,\n294 U.S. 511, 521 (1935) (same).\n\n Finally, we squarely reject Plaintiff-Appellants’\narguments that California’s interest in the LCFS is merely a\nconcern for the environmental harms that are properly\nsubject to the police power of other states rather than of\nCalifornia. As we held in Rocky Mountain I, the LCFS was\nenacted pursuant to California’s view that “[g]lobal warming\nposes a serious threat to the economic well-being, public\nhealth, natural resources, and the environment of\nCalifornia.” Cal. Health & Safety Code § 38501(a).\nCalifornia did not enact the LCFS because it thinks that it is\nthe state that knows how best to protect Iowa’s farms,\nMaine’s fisheries, or Michigan’s lakes. California’s interest\nin the lifecycle of the fuels used by its consumers arises from\na concern for the effects of the production and use of these\nfuels on California’s own air quality, snowpack, and\ncoastline. Here, the regulated parties, the regulated\ntransactions, and the harms California intended to prevent\nare all within the state’s borders, making the LCFS a classic\nexercise of police power. We cannot say that California is\ndoing anything other than legislating “with reference to its\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 25\n\nown jurisdiction” in promulgating the LCFS. Bonaparte v.\nAppeal Tax Court of Balt., 104 U.S. 592, 594 (1881).\n\n B\n\n Having previously lost on their Commerce Clause\nargument in Rocky Mountain I, Plaintiffs now advance their\nnew constitutional argument, contending that their claims\nare based on the “federal structure of the Constitution” and\nare not controlled by Rocky Mountain I. Plaintiffs have not\nidentified which constitutional provisions or doctrine\noutside the Commerce Clause they believe govern their\nstructural federalism claims, if any do. However, our panel\nneed not linger on whether the Constitution could support\nsuch a claim, because we are bound by recent circuit\nprecedent that has settled whether a program very similar to\nthe LCFS is inconsistent with the structure of the\nConstitution. See O’Keeffe, 903 F.3d at 916–17. The\nO’Keeffe court held that “irrespective of its constitutional\nbasis, any such claim is necessarily contingent upon a\nfinding that the [regulating state’s] program regulates and\nattempts to control conduct that occurs in other states.” Id.\n(quoting Goldstene, 2014 WL 7004725, at *13–14). As\ndiscussed above, we settled this precise question for the\nLCFS in Rocky Mountain I, and O’Keeffe is not materially\ndistinguishable from our current case.\n\n There is simply no reason to search beyond the\nCommerce Clause for the Constitution’s limits on the ability\nof states to affect interstate commerce. While the Supreme\nCourt has frequently instructed us on the general principles\nthat “all States enjoy equal sovereignty,” Shelby County,\nAla. v. Holder, 570 U.S. 529, 534 (2013), and that states may\nnot “regulate and control activities wholly beyond [their]\nboundaries,” Watson v. Emp’rs Liab. Assurance Corp.,\n348 U.S. 66, 70 (1954), Commerce Clause jurisprudence is\n\f26 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nthe relevant application of those general principles to this\ncontext. The states, in forming the Union, “reserve[d] . . . a\nsubstantial portion of the Nation’s primary sovereignty,”\nand, because of this, constitutional restrictions on the police\npower of the states should not be lightly inferred. Alden v.\nMaine, 527 U.S. 706, 714 (1999). Our federalism doctrine\nalready has one “quagmire” of doctrine, independent of the\nconstitutional text, concerned with the effects of state\nregulation on interstate commerce. West Lynn Creamery v.\nHealy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring). We\nshould decline to create another.\n\n The district court’s decision as to Plaintiffs’\nextraterritoriality claims against the 2015 LCFS is\nAFFIRMED.\n\n V\n\n Plaintiffs contend for a second time that the LCFS\nfacially discriminates against interstate commerce in its\ntreatment of ethanol and crude oil, having amended their\nclaims to include the 2015 LCFS. The district court\nconcluded that Plaintiffs’ claims against the 2015 LCFS\nshould be dismissed based on Rocky Mountain I, and we\nagree.\n\n Rocky Mountain I rejected facial discrimination\nchallenges to the 2011 LCFS, holding that the “lifecycle\nanalysis used by CARB, including the specific factors to\nwhich Plaintiffs object, does not discriminate against out-of-\nstate commerce” and that CARB’s decision to distinguish\nbetween different fuels reflected its “expert regulatory\njudgment” in aiming to produce “accurate carbon intensity\nvalues.” 730 F.3d at 1093, 1096. These features remain in\nthe 2015 LCFS, and rather than contending that the new law\ndiscriminates in some different way, Plaintiffs concede that\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 27\n\ntheir facial discrimination challenges are based on the same\npremises. In fact, these claims have only been weakened by\nintervening regulatory developments. The original LCFS\nappealed to default pathways with regional characteristics,\nwhich were a major source of the facial discrimination\nclaims in Rocky Mountain I. See id. at 1096. The 2015\nLCFS eliminates the regional pathways and gives every\nalternative fuel an individualized assessment, making no\ndefault assumptions based on region of origin. 2015 LCFS\n§ 95488(b), (c). It is not surprising then that Plaintiffs\nconcede that their facial discrimination claims are controlled\nby Rocky Mountain I.\n\n Because ruling in favor of Plaintiffs on their facial\ndiscrimination claim would require rejecting Rocky\nMountain I on issues it expressly reached and decided, the\nlaw of the case prevents us from endorsing Plaintiffs’ claims\nagainst the 2015 LCFS unless we believe that “[our] prior\ndecision is clearly erroneous and would work a manifest\ninjustice.” Pepper, 562 U.S. at 506–07. As we do not, we\naffirm the district court’s dismissal.\n\n As Rocky Mountain I reflects, the Commerce Clause\nrespects both the concerns of the national marketplace and\nthe central value of local autonomy in our federal system.\nSee Rocky Mountain I, 730 F.3d at 1087. These principles\nrequire us to take into account the potential indirect effects\nof a state’s regulation of in-state activities insofar as they\nmay affect out-of-state commerce. However, the lens\nthrough which we view this analysis must reflect the fact that\na state’s ability to control its internal markets and combat\nlocal harms is squarely within its traditional police power.\nOur Commerce Clause jurisprudence reflects the fact that\n“the Framers’ distrust of economic Balkanization was\nlimited by their federalism favoring a degree of local\n\f28 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\nautonomy.” Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328,\n338 (2008) (examining the history and rationale for the\nCommerce Clause). Rocky Mountain I was correct to hold\nthat the LCFS was permissible local regulation under this\nbalance of considerations.\n\n State autonomy in the regulation of economic and social\naffairs is central to our system because of the recognized role\nstates have as laboratories, trying “novel social and\neconomic experiments without risk to the rest of the\ncountry.” Rocky Mountain I, 730 F.3d at 1087 (citing New\nState Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)\n(Brandeis, J., dissenting)); see also Reeves, Inc. v. Stake,\n447 U.S. 429, 441 (1980) (arguing that in light of State\nexperimentation in policy “[a] healthy regard for federalism\nand good government renders us reluctant” to strike down a\nstate program under the dormant Commerce Clause).\nBecause any meaningful regulation of in-state commerce\nmay have indirect but significant interstate impacts, we\nshould be reluctant to subject states to unwarranted scrutiny\nunder the Commerce Clause for fear that we will frustrate\n“the theory and utility of our federalism” by restricting the\nability of the states to “perform their role as laboratories for\nexperimentation . . . where the best solution is far from\nclear.” United States v. Lopez, 514 U.S. 549, 581 (1995)\n(Kennedy, J., concurring).\n\n California has attempted to address a vitally important\nenvironmental issue with vast potential consequences.\nO’Keeffe, 903 F.3d at 913 (citing Massachusetts v. EPA,\n549 U.S. 497, 522–23 (2007)) (recognizing that “[i]t is well\nsettled that states have a legitimate interest in combating the\nadverse effects of climate change on their residents.”). It\nseems clear beyond dispute that potential climate change\nposes one of the most difficult challenges facing all\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 29\n\ncivilizations worldwide for the twenty-first century. By\nrecognizing emissions that occur throughout the lifecycle of\ndifferent fuels, California has offered a potential solution to\nthe perverse incentives that would otherwise undermine any\nattempt to assess and regulate the carbon impact of different\nfuels. See Rocky Mountain I, 730 F.3d 1081. This\nexperiment cannot succeed without the ability to\ndifferentiate the different production processes and power\ngeneration that are used to produce those fuels. Moreover,\nthe value of California’s experimentation is reinforced by the\nfact that other states can and will follow suit by using any\nlawful procedure that proves effective as a model. That is\nwhat happened in the Oregon Clean Fuels Program. Id. at\n907–10.\n\n The Constitution does not require California to shut its\neyes to the fact that some ethanol is produced with coal and\nother ethanol is produced with natural gas because these\nkinds of energy production are not evenly dispersed across\nthe country or because other states have not chosen to\nregulate the production of greenhouse gases. If the states are\nto remain a source of “innovative and far-reaching statutes”\nthat “supplemen[t] national standards,” they must be\npermitted to submit the goods and services sold within their\nborders to certain environmental standards without having\nthereby discriminated against interstate commerce from\nstates with lower local standards. FERC v. Mississippi, 456\nU.S. 742, 789 (1982) (O’Connor, J., concurring in part and\ndissenting in part).\n\n The district court’s decision as to Plaintiffs’ facial\ndiscrimination claims against the 2015 LCFS is\nAFFIRMED.\n\f30 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n VI\n\n We previously remanded to the district court in Rocky\nMountain I on the Plaintiffs’ claim that the LCFS\npurposefully discriminates against out-of-state ethanol. The\ndistrict court dismissed this claim, finding that “Plaintiffs\nma[de] no meaningful effort to differentiate the factual and\nlegal bases of their claims concerning the Original LCFS’s\nethanol provisions . . . and the bases of their pending claim\nthat the 2015 LCFS’s ethanol provisions have a\ndiscriminatory purpose.” We agree and affirm.\n\n In Rocky Mountain I, we left open the possibility that\nPlaintiffs might have been able to show that the LCFS’s\ntreatment of carbon intensity, although it reflected facially\npermissible differences between different kinds of fuels, was\nactually enacted to prop up local fuel interests. Rather than\ntake advantage of the opportunity to develop this claim on\nremand, however, Plaintiffs rely on the same basic set of\nfacts and alleged statements of bias that we heard in Rocky\nMountain I. As the district court found, “Plaintiffs have not\npointed to any portion of the LCFS’s legislative history that\nthe Ninth Circuit did not consider.”\n\n Although we declined to foreclose Plaintiffs’ purposeful\ndiscrimination claim, the district court is correct that “the\nlogic and record underlying all of Plaintiffs’ claims against\nthe ethanol provisions . . . has not changed.” The only new\nmaterial is a 2009 CARB press release that the district court\ncorrectly held was a permissible “economic defense of a\n[regulation] genuinely proposed for environmental reasons.”\nRocky Mountain I, 730 F.3d at 1100 n.13 (citing Minnesota\nv. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981)\n(“We will not invalidate a state statute under the Equal\nProtection Clause merely because some legislators sought to\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 31\n\nobtain votes for the measure on the basis of its beneficial side\neffects on state industry.”)).\n\n As we noted in Rocky Mountain I, “[t]he party\nchallenging a regulation bears the burden of establishing that\na challenged regulation has a discriminatory purpose or\neffect under the Commerce Clause.” 730 F.3d at 1097 (citing\nHughes v. Oklahoma, 441 U.S. 322, 336 (1979)). This\nburden is all that much higher to meet in the face of our\nholding that the structure of the LCFS does not show\nevidence of discrimination. Under the LCFS, the relative\nfate of in-state and out-of-state entities depends entirely on\nthe environmental properties of different fuel production and\ntransport processes. If the Midwest were to undergo a green\nrevolution in its energy production, the LCFS would act as a\ncompetitive drag on California energy producers. In fact,\nRocky Mountain I recognized that it had already done so with\nrespect to portions of the market. See, e.g., Rocky Mountain\nI, 730 F.3d at 1084 (“The individualized pathway with the\nlowest carbon intensity was achieved by a Midwest producer\n. . .[and] [t]he default pathway with the lowest carbon\nintensity is . . . for Brazilian sugarcane ethanol . . . .”).\n\n In light of these facts about the LCFS’s design, Plaintiffs\ndo not meet their burden of showing a discriminatory\npurpose. Plaintiffs do not advance any evidence concerning\nthe purpose of the new regulation, the only law now subject\nto challenge. Plaintiffs’ arguments rely primarily on\nCalifornia’s motivations for passing the different versions of\nthe LCFS that were applicable in 2009 and 2010. This is\nfatal to their case. In both its design and its legislative\njustifications, the LCFS is a regulation aimed at salient\nenvironmental differences between different types of fuels,\ndifferences which genuinely reflect legitimate state interests.\nWe reject the bald suggestion that the California LCFS is\n\f32 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\ndisguised economic protectionism. Instead, we reaffirm the\nconclusions that were set forth in part VI of Rocky Mountain\nI because those conclusions remain pertinent to the claims\nnow presented:\n\n The California legislature has determined\n that the state faces tremendous risks from\n climate change. With its long coastlines\n vulnerable to rising waters, large population\n that needs food and water, sizable deserts that\n can expand with sustained increased heat,\n and vast forests that may become tinderboxes\n with too little rain, California is uniquely\n vulnerable to the perils of global warming.\n The California legislature determined that\n GHG emissions from the production and\n distribution of transportation fuels contribute\n to this risk, and that those emissions are\n caused by the in-state consumption of fuels.\n Whether or not one agrees with the science\n underlying those views, those determinations\n are permissible ones for the legislature to\n make, and the Supreme Court has recognized\n that these risks constitute local threats. See\n Massachusetts, 549 U.S. at 522.\n\n To combat these risks, the California\n legislature and its regulatory arm CARB\n chose to institute a market-based solution that\n recognizes the costs of harmful carbon\n emissions. For any such system to work, two\n conditions must be met. First, the market\n must have full and accurate information\n about the real extent of GHG emissions.\n Second, the compliance costs of entering the\n\f ROCKY MOUNTAIN FARMERS UNION V. COREY 33\n\n market must not be so great as to prevent\n participation. Plaintiffs attack the lifecycle\n analysis and default pathways that fulfill\n these conditions, relying on archaic\n formalism to prevent action against a new\n type of harm. It has been sagely observed by\n Justice Jackson that the constitutional Bill of\n Rights is not a “suicide pact.” See\n Terminiello v. City of Chicago, 337 U.S. 1,\n 37 (1949) (Jackson, J., dissenting). Nor is the\n dormant Commerce Clause a blindfold. It\n does not invalidate by strict scrutiny state\n laws or regulations that incorporate state\n boundaries for good and non-discriminatory\n reason. It does not require that reality be\n ignored in lawmaking.\n\n California should be encouraged to\n continue and to expand its efforts to find\n a workable solution to lower carbon\n emissions, or to slow their rise. If no such\n solution is found, California residents\n and people worldwide will suffer great\n harm. We will not at the outset block\n California from developing this innovative,\n nondiscriminatory regulation to impede\n global warming. If the Fuel Standard works,\n encouraging the development of alternative\n fuels by those who would like to reach the\n California market, it will help ease\n California's climate risks and inform other\n states as they attempt to confront similar\n challenges.\n\n730 F.3d at 1106–07.\n\f34 ROCKY MOUNTAIN FARMERS UNION V. COREY\n\n These potential risks to the people living in California\nhave only intensified in the past several years. Consider that\nin the past year California saw its forest fires threat increase\nin scope, intensity, duration, and damages, caused in part by\nthe extensive droughts throughout the state. See, e.g.,\nMadison Park, California Fire Explodes in Size, Is\nNow Largest in State History, CNN.com (Aug. 7,\n2018), https://www.cnn.com/2018/08/06/us/california-fires/\nindex.html. California also saw more powerful storms\nhitting its coastlines. See, e.g., Rong-Gong Lin II, Hurricane\nRosa Poses Risk of Flash Floods to Eastern California,\nLas Vegas, Arizona, LATimes.com (Sep. 29, 2018),\nhttp://www.latimes.com/local/lanow/la-me-ln-rain-20180929-\nstory.html.\n\n The district court’s decision as to Plaintiffs’ purpose and\neffect discrimination claims against the 2015 LCFS is\nAFFIRMED.\n\n VII\n\n The district court’s decision as to the Plaintiffs’\nchallenges to the 2015 LCFS is AFFIRMED. We\nVACATE its judgment as to the challenges to the 2011 and\n2012 versions of the LCFS and REMAND with instructions\nto dismiss them as moot.\n\n Costs are awarded to the Defendants.\n[END_CASE]", "role": "user" } ]
4,583,431		Stillaguamish Tribe of Indians v. State of Washington	2019-01-22	17-35722	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Susan R. Bolton, * District Judge.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n STILLAGUAMISH TRIBE OF INDIANS, a No. 17-35722\n federally-recognized Indian tribe,\n Plaintiff-Appellee, D.C. No.\n 3:16-cv-05566-\n v. RJB\n\n STATE OF WASHINGTON; ROBERT W.\n FERGUSON, in his official capacity as OPINION\n Attorney General of Washington,\n Defendants-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Robert J. Bryan, Senior District Judge, Presiding\n\n Argued and Submitted November 8, 2018\n Seattle, Washington\n\n Filed January 22, 2019\n\nBefore: M. Margaret McKeown and Michelle T. Friedland,\n Circuit Judges, and Susan R. Bolton, * District Judge.\n\n Opinion by Judge McKeown\n\n \n The Honorable Susan R. Bolton, United States District Judge for\nthe District of Arizona, sitting by designation.\n\f2 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n SUMMARY \n\n\n Subject Matter Jurisdiction\n\n The panel vacated the district court’s summary judgment\nin favor of an Indian tribe that sought a declaration that its\nsovereign immunity barred any lawsuit arising from a\nparticular contract with the State of Washington.\n\n The panel held that the district court lacked subject\nmatter jurisdiction because the tribe’s anticipatory defense\nto a state court lawsuit did not amount to a cause of action\nbased on federal law and thus did not form a basis for federal\nquestion jurisdiction. The panel vacated the district court’s\njudgment and remanded with instructions to dismiss for lack\nof subject matter jurisdiction.\n\n\n COUNSEL\n\nAlan D. Copsey (argued), Deputy Solicitor General; Rene D.\nTomisser, Senior Counsel; Robert W. Ferguson, Attorney\nGeneral; Attorney General's Office, Olympia, Washington;\nfor Defendants-Appellants.\n\nRob Roy (argued), Kilpatrick Townsend & Stockton LLP,\nSeattle, Washington; Scott Mannakee, Stillaguamish Tribe\nof Indians, Arlington, Washington; for Plaintiff-Appellee.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f STILLAGUAMISH TRIBE V. STATE OF WASHINGTON 3\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n In an effort to engineer federal jurisdiction, the\nStillaguamish Tribe of Indians (“the Tribe”) sued the State\nof Washington in federal court, seeking a declaration that the\nTribe’s sovereign immunity barred any lawsuit arising from\na particular contract with Washington. The trouble with this\napproach is that the Tribe’s anticipatory defense to a state\ncourt lawsuit does not net federal jurisdiction.\n\n In 2005, the Tribe’s Environmental Manager signed an\nagreement with Washington concerning construction of a\nrevetment to protect salmon populations in the Stillaguamish\nRiver. The details of the agreement are unimportant here,\nexcept for an indemnification provision, which obligated the\nTribe to “indemnify, defend and hold harmless\n[Washington] from and against all claims . . . arising out of\nor incident to the [Tribe’s] . . . performance.” After a tragic\nlandslide near the Stillaguamish River, Washington became\nembroiled in litigation. Victims of the slide alleged the\nrevetment had contributed to their injuries. Washington\nindicated repeatedly that it would seek indemnification from\nthe Tribe, both while the litigation was ongoing and after the\nresulting settlement.\n\n In response, the Tribe sued Washington 1 in federal\ndistrict court, seeking to establish that the Tribe’s sovereign\nimmunity would bar a suit for indemnification. The district\ncourt granted summary judgment in favor of the Tribe.\n\n 1\n Washington’s attorney general was also named as a defendant.\nBecause he was sued in his official capacity, we refer to the defendants\ncollectively as “Washington.”\n\f4 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n We do not reach the merits of the Tribe’s sovereign\nimmunity defense because we conclude, on de novo review,\nthat the district court lacked subject matter jurisdiction.\nKingman Reef Atoll Invs., LLC v. United States, 541 F.3d\n1189, 1195 (9th Cir. 2008) (holding that whether subject\nmatter jurisdiction exists is reviewed de novo).\n\n The Tribe invokes federal question jurisdiction under\n28 U.S.C. § 1331, which provides for jurisdiction over “all\ncivil actions arising under the Constitution, laws, or treaties\nof the United States.” Under the well-pleaded complaint\nrule, federal question jurisdiction exists only if the plaintiff’s\ncause of action is based on federal law. See Metro. Life Ins.\nCo. v. Taylor, 481 U.S. 58, 63 (1987). Neither a defense\nbased on federal law nor a plaintiff’s anticipation of such a\ndefense is a basis for federal jurisdiction. See Aetna Health\nInc. v. Davila, 542 U.S. 200, 207 (2004); Bodi v. Shingle\nSprings Band of Miwok Indians, 832 F.3d 1011, 1023 n.16\n(9th Cir. 2016) (“A tribal immunity defense does not provide\nan independent basis for federal jurisdiction.”).\n\n Parties cannot circumvent the well-pleaded complaint\nrule by filing a declaratory judgment action to head off a\nthreatened lawsuit. See Atay v. Cty. of Maui, 842 F.3d 688,\n697–98 (9th Cir. 2016). When a declaratory judgment action\n“seeks in essence to assert a defense to an impending or\nthreatened state court action,” courts apply the well-pleaded\ncomplaint rule to the impending or threatened action, rather\nthan the complaint seeking declaratory relief. Id. In other\nwords, “the character of the threatened action, and not of the\ndefense” determines whether there is federal-question\njurisdiction. Id. at 698; accord Medtronic, Inc. v. Mirowski\nFamily Ventures, LLC, 571 U.S. 191, 197 (2014).\n\n The Tribe points out that tribal sovereign immunity is a\nquestion of federal common law. True enough. Kiowa Tribe\n\f STILLAGUAMISH TRIBE V. STATE OF WASHINGTON 5\n\nof Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). But\ntribal immunity is a federal defense. Okla. Tax Comm’n v.\nGraham, 489 U.S. 838, 841 (1989) (per curiam). As such,\n“[t]he possible existence of a tribal immunity defense . . . did\nnot convert [Washington contract claims] into federal\nquestions, and there was no independent basis for original\nfederal jurisdiction.” Id. It makes no difference that the\nTribe asserted its defense in a declaratory judgment action\nrather than in a lawsuit brought by the state.\n\n We are not persuaded by the Tribe’s reliance on Shaw v.\nDelta Air Lines, Inc., 463 U.S. 85 (1983). In Shaw, the\nSupreme Court reiterated that “[a] plaintiff who seeks\ninjunctive relief from state regulation, on the ground that\nsuch regulation is pre-empted by a federal statute . . .\npresents a federal question.” Id. at 96 n.14. The Tribe is\nasserting a defense to a threatened lawsuit, not contending\nthat federal law preempts state law. The rule from Shaw is\ninapplicable. Holding otherwise would permit any potential\ndefendant faced with a state common law action brought by\na state official to evade the well-pleaded complaint rule by\nseeking a declaratory judgment based on a federal defense.\nSee Atay, 842 F.3d at 697–98.\n\n The other cases cited by the Tribe are similarly\ndistinguishable, because they involved either claims based\non federal law or challenges to ongoing state action. See,\ne.g., Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151–\n53 (9th Cir. 2017) (tribe sought a declaration that ongoing\nstate law actions violated federal law on tribal authority to\nexercise jurisdiction over non-Indians); Sac & Fox Nation v.\nHanson, 47 F.3d 1061, 1062 (10th Cir. 1995) (tribe sought\nto enjoin state court action which was itself brought under\nfederal law).\n\f6 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n Because there was no federal question jurisdiction, we\nVACATE the judgment of the district court and REMAND\nwith instructions to dismiss for lack of subject matter\njurisdiction.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360684/", "author_raw": "McKEOWN, Circuit Judge:"}]}	M MARGARET MCKEOWN	MICHELLE T FRIEDLAND	SUSAN R BOLTON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583431/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Stillaguamish Tribe of Indians v. State of Washington\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n STILLAGUAMISH TRIBE OF INDIANS, a No. 17-35722\n federally-recognized Indian tribe,\n Plaintiff-Appellee, D.C. No.\n 3:16-cv-05566-\n v. RJB\n\n STATE OF WASHINGTON; ROBERT W.\n FERGUSON, in his official capacity as OPINION\n Attorney General of Washington,\n Defendants-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Robert J. Bryan, Senior District Judge, Presiding\n\n Argued and Submitted November 8, 2018\n Seattle, Washington\n\n Filed January 22, 2019\n\nBefore: M. Margaret McKeown and Michelle T. Friedland,\n Circuit Judges, and Susan R. Bolton, * District Judge.\n\n Opinion by Judge McKeown\n\n \n The Honorable Susan R. Bolton, United States District Judge for\nthe District of Arizona, sitting by designation.\n\f2 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n SUMMARY \n\n\n Subject Matter Jurisdiction\n\n The panel vacated the district court’s summary judgment\nin favor of an Indian tribe that sought a declaration that its\nsovereign immunity barred any lawsuit arising from a\nparticular contract with the State of Washington.\n\n The panel held that the district court lacked subject\nmatter jurisdiction because the tribe’s anticipatory defense\nto a state court lawsuit did not amount to a cause of action\nbased on federal law and thus did not form a basis for federal\nquestion jurisdiction. The panel vacated the district court’s\njudgment and remanded with instructions to dismiss for lack\nof subject matter jurisdiction.\n\n\n COUNSEL\n\nAlan D. Copsey (argued), Deputy Solicitor General; Rene D.\nTomisser, Senior Counsel; Robert W. Ferguson, Attorney\nGeneral; Attorney General's Office, Olympia, Washington;\nfor Defendants-Appellants.\n\nRob Roy (argued), Kilpatrick Townsend & Stockton LLP,\nSeattle, Washington; Scott Mannakee, Stillaguamish Tribe\nof Indians, Arlington, Washington; for Plaintiff-Appellee.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f STILLAGUAMISH TRIBE V. STATE OF WASHINGTON 3\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n In an effort to engineer federal jurisdiction, the\nStillaguamish Tribe of Indians (“the Tribe”) sued the State\nof Washington in federal court, seeking a declaration that the\nTribe’s sovereign immunity barred any lawsuit arising from\na particular contract with Washington. The trouble with this\napproach is that the Tribe’s anticipatory defense to a state\ncourt lawsuit does not net federal jurisdiction.\n\n In 2005, the Tribe’s Environmental Manager signed an\nagreement with Washington concerning construction of a\nrevetment to protect salmon populations in the Stillaguamish\nRiver. The details of the agreement are unimportant here,\nexcept for an indemnification provision, which obligated the\nTribe to “indemnify, defend and hold harmless\n[Washington] from and against all claims . . . arising out of\nor incident to the [Tribe’s] . . . performance.” After a tragic\nlandslide near the Stillaguamish River, Washington became\nembroiled in litigation. Victims of the slide alleged the\nrevetment had contributed to their injuries. Washington\nindicated repeatedly that it would seek indemnification from\nthe Tribe, both while the litigation was ongoing and after the\nresulting settlement.\n\n In response, the Tribe sued Washington 1 in federal\ndistrict court, seeking to establish that the Tribe’s sovereign\nimmunity would bar a suit for indemnification. The district\ncourt granted summary judgment in favor of the Tribe.\n\n 1\n Washington’s attorney general was also named as a defendant.\nBecause he was sued in his official capacity, we refer to the defendants\ncollectively as “Washington.”\n\f4 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n We do not reach the merits of the Tribe’s sovereign\nimmunity defense because we conclude, on de novo review,\nthat the district court lacked subject matter jurisdiction.\nKingman Reef Atoll Invs., LLC v. United States, 541 F.3d\n1189, 1195 (9th Cir. 2008) (holding that whether subject\nmatter jurisdiction exists is reviewed de novo).\n\n The Tribe invokes federal question jurisdiction under\n28 U.S.C. § 1331, which provides for jurisdiction over “all\ncivil actions arising under the Constitution, laws, or treaties\nof the United States.” Under the well-pleaded complaint\nrule, federal question jurisdiction exists only if the plaintiff’s\ncause of action is based on federal law. See Metro. Life Ins.\nCo. v. Taylor, 481 U.S. 58, 63 (1987). Neither a defense\nbased on federal law nor a plaintiff’s anticipation of such a\ndefense is a basis for federal jurisdiction. See Aetna Health\nInc. v. Davila, 542 U.S. 200, 207 (2004); Bodi v. Shingle\nSprings Band of Miwok Indians, 832 F.3d 1011, 1023 n.16\n(9th Cir. 2016) (“A tribal immunity defense does not provide\nan independent basis for federal jurisdiction.”).\n\n Parties cannot circumvent the well-pleaded complaint\nrule by filing a declaratory judgment action to head off a\nthreatened lawsuit. See Atay v. Cty. of Maui, 842 F.3d 688,\n697–98 (9th Cir. 2016). When a declaratory judgment action\n“seeks in essence to assert a defense to an impending or\nthreatened state court action,” courts apply the well-pleaded\ncomplaint rule to the impending or threatened action, rather\nthan the complaint seeking declaratory relief. Id. In other\nwords, “the character of the threatened action, and not of the\ndefense” determines whether there is federal-question\njurisdiction. Id. at 698; accord Medtronic, Inc. v. Mirowski\nFamily Ventures, LLC, 571 U.S. 191, 197 (2014).\n\n The Tribe points out that tribal sovereign immunity is a\nquestion of federal common law. True enough. Kiowa Tribe\n\f STILLAGUAMISH TRIBE V. STATE OF WASHINGTON 5\n\nof Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). But\ntribal immunity is a federal defense. Okla. Tax Comm’n v.\nGraham, 489 U.S. 838, 841 (1989) (per curiam). As such,\n“[t]he possible existence of a tribal immunity defense . . . did\nnot convert [Washington contract claims] into federal\nquestions, and there was no independent basis for original\nfederal jurisdiction.” Id. It makes no difference that the\nTribe asserted its defense in a declaratory judgment action\nrather than in a lawsuit brought by the state.\n\n We are not persuaded by the Tribe’s reliance on Shaw v.\nDelta Air Lines, Inc., 463 U.S. 85 (1983). In Shaw, the\nSupreme Court reiterated that “[a] plaintiff who seeks\ninjunctive relief from state regulation, on the ground that\nsuch regulation is pre-empted by a federal statute . . .\npresents a federal question.” Id. at 96 n.14. The Tribe is\nasserting a defense to a threatened lawsuit, not contending\nthat federal law preempts state law. The rule from Shaw is\ninapplicable. Holding otherwise would permit any potential\ndefendant faced with a state common law action brought by\na state official to evade the well-pleaded complaint rule by\nseeking a declaratory judgment based on a federal defense.\nSee Atay, 842 F.3d at 697–98.\n\n The other cases cited by the Tribe are similarly\ndistinguishable, because they involved either claims based\non federal law or challenges to ongoing state action. See,\ne.g., Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151–\n53 (9th Cir. 2017) (tribe sought a declaration that ongoing\nstate law actions violated federal law on tribal authority to\nexercise jurisdiction over non-Indians); Sac & Fox Nation v.\nHanson, 47 F.3d 1061, 1062 (10th Cir. 1995) (tribe sought\nto enjoin state court action which was itself brought under\nfederal law).\n\f6 STILLAGUAMISH TRIBE V. STATE OF WASHINGTON\n\n Because there was no federal question jurisdiction, we\nVACATE the judgment of the district court and REMAND\nwith instructions to dismiss for lack of subject matter\njurisdiction.\n[END_CASE]", "role": "user" } ]
4,583,432		Bishop, Heenan & Davies v. Volkswagen Group of America	2019-01-22	17-16020	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16020\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nBISHOP, HEENAN & DAVIES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3\n\n\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16065\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF MALONEY &\nCAMPOLO, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5\n\n\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16067\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\n\f6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nJAMES BEN FEINMAN; RONALD\nCLARK FLESHMAN, JR.,\n Objectors-Appellants,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16068\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLEMBERG LAW, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16082\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nNAGEL RICE, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16083\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nSTRONG LAW OFFICES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16089\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHYDE & SWIGART,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16092\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nTHE DRISCOLL FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16099\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nVILES AND BECKMAN, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16123\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHOLTON LAW FIRM, PLLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16124\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nMAKAREM & ASSOCIATES, APLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16130\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF SAMUEL W.\nBEARMAN, LLC; SELLERS SKIEVASKI\nKUDER LLP; ARTICE MCGRAW, PA,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16132\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHARRELL & NOWAK, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16156\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\n EGOLF FERLIC HARWOOD, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16158\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nRYDER LAW FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16172\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nPAUL S. ROTHSTEIN,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16180\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W. OPINION\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHAWKS QUINDEL, S.C.; HABUSH\nHABUSH & ROTTIER, S.C.,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35\n\n\n VOLKSWAGEN GROUP OF AMERICA,\n INC.; VOLKSWAGEN, AG; AUDI, AG;\n AUDI OF AMERICA, LLC; PORSCHE\n CARS NORTH AMERICA, INC.;\n ROBERT BOSCH GMBH; ROBERT\n BOSCH, LLC,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Charles R. Breyer, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 22, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n SUMMARY \n\n\n Attorneys’ Fees / Class Action\n\n The panel affirmed the district court’s order denying the\n244 motions for attorneys’ fees filed by non-class counsel,\narising from an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel, in a multi-district\nlitigation concerning claims predicated on Volkswagen’s\nuse of defeat devices in certain VW and Audi diesel vehicles.\n\n The panel held that appellants, who were law firms and\nlawyers that appealed in their own names (with the exception\nof appellant Roald Clark Fleishman, Jr. who joined his\nattorney’s appeal), had standing to challenge the fee order.\nThe panel concluded, as a matter of first impression, that\nappellants had standing because they suffered an injury\n(deprivation of attorneys’ fees) that was caused by the\nconduct complained of (the fee order) and would be\nredressed by judicial relief.\n\n Federal Rule of Civil Procedure 23 permits an award of\nfees when authorized by law or the parties’ agreement, and\ncourts have an independent obligation to ensure that the\naward, like the settlement itself, is reasonable. Because the\nunderlying class action did not feature a traditional common\nfund from which attorneys’ fees were procured, appellants\ncould only have collected fees if they provided a substantial\nbenefit to the class. The panel concluded that the district\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37\n\ncourt did not abuse its discretion when it determined that the\nefforts of non-class counsel for which they sought fees did\nnot benefit the class such that they would be entitled to\ncompensation.\n\n The panel rejected three additional arguments advanced\nby Nagel Rice LLP and others (the Nagel Appellants). The\npanel held that the district court’s order supplied the\nnecessary level of explanation for its decision. The panel\nalso held that there was no agreement between the parties,\neither explicit or implicit, that Volkswagen would\ncompensate the Nagel Appellants for their efforts. Finally,\nthe panel held that the Nagel Appellants improperly invoked\nquantum meruit where non-class counsel did not\nsubstantially benefit the class; and no unjust enrichment\noccurred.\n\n Appellant James Ben Feinman’s separate brief\nchallenged the district court’s injunction enjoining efforts to\nassert attorney fee lien claims under State law. The panel\nheld that because the district court vacated the lien order and\nits injunction, all of the issues contained in Feinman’s brief\nwere rendered moot, and the panel need not consider them.\n\n\n COUNSEL\n\nBruce H. Nagel (argued) and Diane E. Sammons, Nagel\nRice, LLP, Roseland, New Jersey; James B. Feinman\n(argued), James B. Feinman & Associates, Lynchburg,\nCalifornia; Sara Khosroabadi and Joshua B. Swigart, Hyde\n& Swigart, San Diego, California; for Objectors-Appellants.\n\nSamuel Issacharoff (argued), New York, New York; Kevin\nR. Budner, David S. Stellings, and Elizabeth J. Cabraser,\n\f38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLieff Cabraser Heimann & Bernstein LLP, San Francisco,\nCalifornia; Robin L. Greenwald, Weitz & Luxenberg P.C.,\nNew York, New York; Christopher A. Seeger, Seeger Weiss\nLLP, New York, New York; Paul J. Geller, Robbins Geller\nRudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln\nSarko, Keller Rohrback L.L.P., Seattle, Washington;\nMichael D. Hausfeld, Hausfeld LLP, Washington, D.C.;\nJayne Conroy, Simmons Hanly Conroy LLC, New York,\nNew York; Roxanne Barton Conlin, Roxanne Conlin &\nAssociates P.C., Des Moines, Iowa; Joseph F. Rice, Motley\nRice LLC, Mount Pleasant, South Carolina; Michael Everett\nHeygood, Heygood Orr & Pearson, Irving, Texas; Adam J.\nLevitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank\nMario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame,\nCalifornia; James E. Cecchi and Carella, Byrne, Cecchi\nOlstein Brody & Agnello P.C., Roseland, New Jersey; David\nBoies, Boies Schiller & Flexner LLP, Armonk, New York;\nW. Daniel “Dee” Miles III, Beasley Allen Law Firm,\nMontgomery, Alabama; Benjamin L. Bailey, Bailey Glasser\nLLP, Charleston, West Virginia; Steve W. Berman, Hagens\nBerman, Seattle, Washington; Rosemary M. Rivas, Levi &\nKorsinsky LLP, San Francisco, California; David Seabold\nCasey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield\nLLP, San Diego, California; J. Gerard Stranch IV,\nBranstetter Stranch & Jennings, PLLC, Nashville,\nTennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP,\nOakland, California; Roland K. Tellis, Baron & Budd P.C.,\nEncino, California; for Plaintiffs-Appellees.\n\nSharon Nelles (argued), Andrew J. Finn, William B.\nMonahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell\nLLP, New York, New York, for Defendants-Appellees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Appellants are lawyers and law firms that represented\nclass members in an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel. Non-class counsel\nfiled 244 motions for attorneys’ fees. In a single order, the\ndistrict court denied all of the motions, determining that the\nlawyers neither performed common benefit work nor\nfollowed the proper procedures for compensation. We\naffirm. 1\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n On September 18, 2015, the Environmental Protection\nAgency (EPA) issued a Notice of Violation (NOV) in which\nit alleged that Defendants-Appellees Volkswagen Group of\nAmerica, Inc., Volkswagen, AG, and Audi, AG\n(collectively, Volkswagen) used “defeat devices” in 500,000\n\n\n\n 1\n Various appellants filed eighteen separate notices of appeal from\nthe district court’s order, seventeen of which are consolidated here. (The\neighteenth appeal—Autoport, LLC v. Volkswagen Group of America,\nInc., No. 17-16066—was later severed from the consolidation and is\naddressed in a concurrently filed memorandum disposition.) The law\nfirms represented in fifteen of the seventeen consolidated appeals signed\non to the brief prepared by Appellants Nagel Rice, LLP and Hyde &\nSwigart, while Appellants James Ben Feinman and Ronald Clark\nFleshman, Jr. submitted their own, separate brief. Appellant Bishop,\nHeenan & Davies LLC did not sign either of these briefs, and did not\nsubmit its own.\n\f40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nVolkswagen- and Audi-branded TDI “clean diesel” vehicles.\nAs the district court later explained,\n\n [T]he defeat device produces regulation-\n compliant results when it senses the vehicle\n is undergoing testing, but operates a less\n effective emissions control system when the\n vehicle is driven under normal\n circumstances. It was only by using the\n defeat device that Volkswagen was able to\n obtain Certificates of Conformity from EPA\n and Executive Orders from [the California\n Air Resources Board] for its TDI diesel\n engine vehicles. In reality, these vehicles\n emit nitrogen oxides (“NOx”) at a factor of\n up to 40 times over the permitted limit.\n\nTwo months later, the EPA issued a second NOV to\nVolkswagen and Defendant-Appellee Porsche Cars of North\nAmerica, Inc., which implicated the companies’ 3.0-liter\ndiesel engine vehicles.\n\nII. Procedural Background\n\n A. Commencement of Lawsuits\n\n Soon after the issuance of the NOVs, consumers\nnationwide commenced hundreds of lawsuits. One such\naction was spearheaded by Appellant Nagel Rice, LLP\n(Nagel Rice), an illustrative law firm that represented forty-\nthree Volkswagen owners from various states. Nagel Rice\nfiled a complaint in New Jersey federal court on September\n21, 2015—three days after the issuance of the first NOV and\ntwo months before the eventual consolidation of all related\ncases. During this early representation, Nagel Rice asserts\nthat it performed various activities related to the litigation,\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41\n\nincluding conducting research, fielding calls from\nprospective clients and the media, and communicating with\nGerman legal counsel regarding potential jurisdictional and\nevidentiary issues.\n\n Eventually, on December 8, 2015, the Judicial Panel on\nMultidistrict Litigation consolidated the various lawsuits\nand transferred them to the U.S. District Court for the\nNorthern District of California. Ultimately, the district court\nreceived more than one thousand Volkswagen cases as part\nof this multidistrict litigation (MDL), titled In re Volkswagen\n“Clean Diesel” Marketing, Sales Practices, & Product\nLiability Litigation, MDL 2672.\n\n B. Pretrial Orders\n\n On December 9, 2015—the day after the consolidation\nand transfer—the district court issued its first pretrial order\n(PTO), in which it announced its intent “to appoint a\nPlaintiffs’ Steering Committee(s) to conduct and coordinate\nthe pretrial stage of this litigation with the defendants’\nrepresentatives or committee.” Nagel Rice was one of the\nfirms that submitted papers to be selected either as Lead\nCounsel or as a member of the Plaintiffs’ Steering\nCommittee (PSC).\n\n The district court selected a twenty-one-member PSC\nfollowing the application process, and appointed it and Lead\nCounsel (together, Class Counsel) in its seventh PTO (PTO\nNo. 7). This PTO asserted that “as to all matters common to\nthe coordinated cases, and to the fullest extent consistent\nwith the independent fiduciary obligations owed by any and\nall plaintiffs’ counsel to their clients and any putative class,\n[] pretrial proceedings shall [be] conducted by and through\nthe PSC.”\n\f42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n In its eleventh PTO (PTO No. 11), filed on February 25,\n2016, the district court outlined its protocol for common\nbenefit work and expenses. The court explained that “[t]he\nrecovery of common benefit attorneys’ fees and cost\nreimbursements will be limited to ‘Participating Counsel,’”\nwhich it defined as\n\n Lead Counsel and members of the Plaintiffs’\n Steering Committee (along with members\n and staff of their respective firms), any other\n counsel authorized by Lead Counsel to\n perform work that may be considered for\n common benefit compensation, and/or\n counsel who have been specifically approved\n by this Court as Participating Counsel prior\n to incurring any such cost or expense.\n\nIt further elaborated that “Participating Counsel shall be\neligible to receive common benefit attorneys’ fees and\nreimbursement of costs and expenses only if the time\nexpended, costs incurred, and activity in question were (a)\nfor the common benefit of Plaintiffs; (b) timely submitted;\nand (c) reasonable.” As to the first requirement—“for the\ncommon benefit of Plaintiffs”—the district court explained\nthat\n\n [o]nly Court-appointed Counsel and those\n attorneys working on assignments therefrom\n that require them to review, analyze, or\n summarize those filings or Orders in\n connection with their assignments are doing\n so for the common benefit. All other counsel\n are reviewing those filings and Orders for\n their own benefit and that of their respective\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43\n\n clients and such review will not be\n considered Common Benefit Work.\n\n(emphasis added). Class Counsel later reported that “Lead\nCounsel took advantage of the authority granted in PTO 7 to\nenlist and authorize nearly 100 additional firms to perform\nthe necessary common benefit work, which was then tracked\npursuant to the protocol set forth in PTO 11.” 2\n\n The PTOs’ guidance notwithstanding, Nagel Rice claims\nthat, although it was not selected to be Lead Counsel or a\nmember of the PSC, it “appeared telephonically in almost\nevery court appearance relative to the case and provided\ncontinual updates to clients via email,” and “fielded scores\nof telephone calls from clients and other class members\nseeking information relative to the settlement and the\nprocess for submitting objections and claims.” Similarly,\nanother lawyer, Appellant James Ben Feinman, extensively\nlitigated on behalf of 403 individual clients in Virginia state\nand federal courts, in addition to monitoring the MDL.\nThere is no indication in the record that Nagel Rice,\nFeinman, or any other Appellants fully complied with the\nPTOs in performing these efforts.\n\n C. Settlement Process\n\n Class Counsel, along with ninety-seven additional\nplaintiffs’ firms that Lead Counsel enlisted pursuant to PTO\n\n 2\n For example, PSC chair Elizabeth Cabraser attested that “prior to\nthe filing of the Consolidated Consumer Class Action Complaint, [she]\nrequested all firms who had submitted leadership applications and other\ninterested firms to submit information on plaintiffs interested in serving\nas proposed class representatives. Information on [] nearly 600 plaintiffs\nwas submitted by dozens of firms. All of these firms were asked to\nsubmit their time for this effort under PTO 11.” (citation omitted).\n\f44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nNo. 11, embarked on an aggressive settlement process that,\nin the words of Settlement Master Robert S. Mueller III,\n“involved at least 40 meetings and in-person conferences at\nvarious locations, including San Francisco, New York City,\nand Washington, DC, over a five-month period. A number\nof these sessions lasted many hours, both early and late, and\nweekends were not excluded.” The efforts undertaken by\nthis group included drafting a 719-page consolidated class\naction complaint, selecting class representatives, requesting\nand reviewing more than 12 million pages of Volkswagen\ndocuments, and conducting settlement negotiations.\n\n The district court preliminarily approved the resulting\nConsolidated Consumer Class Action Settlement (the\nSettlement) on July 29, 2016. In their motion for preliminary\napproval, the class action’s plaintiffs (Plaintiffs) asserted\nthat “[n]one of the settlement benefits for Class Members\nwill be reduced to pay attorneys’ fees or to reimburse\nexpenses of Class Counsel. Volkswagen will pay attorneys’\nfees and costs separately and in addition to the Settlement\nbenefits to Class Members.”\n\n The court filed its final approval of the Settlement on\nOctober 25, 2016. As of November 2017—one year before\nthe end of the claims period—the claims of more than\n300,000 class members had been submitted and finalized,\nresulting in payments of nearly $7 billion.\n\n D. Recovery of Attorneys’ Fees\n\n Notably, for purposes of these appeals, section 11.1 of\nthe Settlement read in part as follows:\n\n Volkswagen agrees to pay reasonable\n attorneys’ fees and costs for work performed\n by Class Counsel in connection with the\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45\n\n Action as well as the work performed by\n other attorneys designated by Class Counsel\n to perform work in connection with the\n Action in an amount to be negotiated by the\n Parties and that must be approved by the\n Court. . . . If the Parties reach an agreement\n about the amount of attorneys’ fees and costs,\n Class Counsel will submit the negotiated\n amount to the Court for approval. . . . The\n Parties shall have the right to appeal the\n Court’s determination as to the amount of\n attorneys’ fees and costs.\n\nVolkswagen and Class Counsel eventually agreed to an\naward of $175 million in attorneys’ fees and costs, which the\ndistrict court granted on March 17, 2017.\n\n In November 2016, Volkswagen informed the district\ncourt that it had begun receiving “notices of representation\nfrom [attorneys] purporting to assert attorneys’ fee liens on\npayments made to certain class members under” the\nSettlement. The district court also began to receive motions\nfor attorneys’ fees and costs. In response, the court issued\nan order regarding attorneys’ liens (the Lien Order) on\nNovember 22, 2016. It noted that a purpose of the\nSettlement was to “ensure[] Class Members who participate\nin a Buyback have sufficient cash to purchase a comparable\nreplacement vehicle and thus facilitate[] removal of the\npolluting vehicles from the road.” The court continued,\n\n An attorneys’ lien on a Class Member’s\n recovery frustrates this goal. By diverting a\n portion of Class Members’ compensation to\n private counsel, a lien reduces Class\n Members’ compensation and places them in\n\f46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n a position where they must purchase another\n vehicle but lack the funds to do so. Put\n another way, attorneys—notably, attorneys\n who did not have a hand in negotiating the\n Settlement—stand to profit while their clients\n are left with inadequate compensation.\n\nAccordingly, pursuant to its power under the All Writs Act,\nthe district court “enjoin[ed] any state court proceeding\nrelating to an attorneys’ lien on any Class Member’s\nrecovery under the Settlement.”\n\n However, acknowledging that “some attorneys may have\nprovided Class Members with compensable services,” the\ncourt also established a procedure for recovery of attorneys’\nfees, requiring “a separate application for each Class\nMember” that would include “the amount sought; the\nspecific legal service(s) provided, including time records;\nand the terms of the fee agreement that require such an\naward.” The court ultimately received 244 applications,\nincluding one from Nagel Rice.\n\n Feinman, the Virginia lawyer who continued his\nlitigation activities even after consolidation and appointment\nof Class Counsel, filed an objection to the Lien Order\ninjunction and requested more time to comply with the\nprocedure for fee applications. In his objection, he explained\nthe propriety of his attorney’s lien in Virginia, and called\ninto question the district court’s federal question jurisdiction\nover the claims of his clients. He concluded that “this\nHonorable Court has no right, authority or power to annul or\nrepeal Virginia law in regard to statutorily-created liens for\nattorneys’ fees. To do so violates the property rights of Mr.\nFeinman without due process of law, and violates the Full\nFaith and Credit Clause of the United States.”\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47\n\n After reviewing the 244 fee applications, the district\ncourt issued an order (the Fee Order) in which it determined\nthat “Volkswagen did not agree to pay these fees and costs\nas part of the Settlement, and [] Non-Class Counsel have not\noffered evidence that their services benefited the class, as\nopposed to their individual clients,” and consequently\ndenied the motions. The court concluded that “Non-Class\nCounsel’s filing of individual and class complaints prior to\nthe MDL did not benefit the class” because, due to the short\ntime between the first NOV and consolidation of the MDL,\nlittle pretrial activity occurred that might have driven\nsettlement negotiations. It also noted that although “Non-\nClass Counsel offer[ed] evidence that . . . they fielded\nhundreds of phone calls from prospective and actual clients,”\nthese efforts “at most benefited individual class members,\nnot the class as a whole.” As for work undertaken after\nappointment of Class Counsel, the court determined that, due\nto its PTOs, “Non-Class Counsel [] were on notice that they\nwould not receive common benefit compensation for these\nefforts,” and had also been informed of the required\ncompensation procedure outlined in PTO No. 11. Finally,\nthe district court concluded that “the time Non-Class\nCounsel spent advising class members on the terms of the\nSettlement” was “duplicative of that undertaken by Class\ncounsel, and therefore did not ‘confer[] a benefit beyond that\nconferred by lead counsel.’” (alteration in original) (quoting\nIn re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir.\n2005)). Consequently, the court denied the 244 fee\napplications.\n\n In denying the applications, the district court also\nrecognized that “[w]hile Non-Class Counsel are not entitled\nto fees from Volkswagen as part of this class action, Non-\nClass Counsel may be entitled to payment of certain fees and\ncosts pursuant to attorney-client fee agreements.”\n\f48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nAccordingly, the court vacated the Lien Order and its\naccompanying injunction on state court actions to facilitate\nsuch recovery.\n\n These appeals followed.\n\n STANDARD OF REVIEW AND JURISDICTION\n\n An order denying attorneys’ fees is reviewed for abuse\nof discretion. Lane v. Residential Funding Corp., 323 F.3d\n739, 742 (9th Cir. 2003). “Findings of fact are reviewed for\nclear error; conclusions of law are reviewed de novo.”\nStetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We\nhave jurisdiction pursuant to 28 U.S.C. § 1291.\n\n ANALYSIS\n\n Nagel Rice and the other Appellants that signed its brief\n(collectively, Nagel Appellants) suggest that “[t]his appeal\npresents an issue of first impression in the Ninth Circuit:\nwhether Independent Counsel who performed services and\nincurred costs in a multi-district litigation prior to the\nappointment of Lead Counsel are entitled to an award of fees\nand costs, or are only the firms appointed to leadership roles\nentitled to a fee award for services performed prior to their\nappointment.” In truth, however, the central issue before us\nis narrower: whether the district court abused its discretion\nwhen it denied Appellants’ motions for attorneys’ fees.\nAppellants’ challenges to the Fee Order raise various legal\nissues, which we will address in turn.\n\nI. Standing\n\n As a threshold matter, Volkswagen argues that\nAppellants lack standing to appeal. It premises this\ncontention on our previous determination that “the right to\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49\n\nseek attorney’s fees [is vested] in the prevailing party, not\nher attorney, and [] attorneys therefore lack standing to\npursue them.” Pony v. County of Los Angeles, 433 F.3d\n1138, 1142 (9th Cir. 2006). Because Appellants are law\nfirms and lawyers that appeal in their own names (with the\nexception of Appellant Ronald Clark Fleshman, Jr., who is\none of Feinman’s clients and joins his attorney’s appeal),\nVolkswagen contends that Appellants lack standing to\nvindicate a right that is properly vested with their clients, the\nunderlying class members.\n\n We disagree. Nagel Appellants correctly observe that\nthe cases on which Volkswagen relies, Pony included,\nconcerned statutory attorneys’ fees provisions. See Pony,\n433 F.3d at 1142 (discussing fees authorized pursuant to\n42 U.S.C. § 1988). Here, by contrast, Appellants did not\nseek fees pursuant to statute, and so we cannot base our\nconclusion on Pony or other similar cases.\n\n Instead, we conclude that, as a matter of first principles,\nAppellants have the most compelling case for standing\nbecause they suffered an injury (deprivation of attorneys’\nfees) that was caused by the conduct complained of (the Fee\nOrder) and would be redressed by judicial relief. See Lujan\nv. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser\nv. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir.\n2011) (concluding that class plaintiffs in a non-common\nfund case lacked standing to appeal an attorneys’ fee award\nto class counsel because it did not affect class plaintiffs’\nrecovery and so they were not “‘aggrieved’ by the fee\naward” (quoting In re First Capital Holdings Corp. Fin.\nProds. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here,\nAppellants were aggrieved by the district court’s denial of\ntheir motions for attorneys’ fees. Therefore, we conclude\n\f50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat Appellants properly have standing to challenge the Fee\nOrder. 3\n\nII. The Fee Order\n\n Federal Rule of Civil Procedure 23 permits a court to\n“award reasonable attorney’s fees and nontaxable costs that\nare authorized by law or by the parties’ agreement.” Fed. R.\nCiv. P. 23(h). Various courts, including our own, have\ndetermined that even non-class counsel can be entitled to\nattorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th\nCir. 2016) (indicating that an objector can be entitled to\nattorneys’ fees in a class action); In re Cendant, 404 F.3d at\n195 (concluding that an attorney who “creates a substantial\n\n 3\n We note that Nagel Appellants premise their standing argument on\ncases involving common settlement funds, from which both the Supreme\nCourt and this court have acknowledged that litigants and lawyers have\na right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472,\n478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir.\n1977). However, as the district court correctly noted, “[t]he Settlement’s\nFunding Pool is not a traditional common fund from which settlement\nproceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees\nand costs in addition to the payments to the Class rather than from the\nfund created for payments to the Class.” Cf. 5 William B. Rubenstein,\nNewberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund\ncases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he\ncommon fund doctrine allows a court to distribute attorney’s fees from\nthe common fund that is created for the satisfaction of class members’\nclaims . . .” (emphasis added)). Although Nagel Appellants invoked the\ncommon fund doctrine in their brief, their counsel at oral argument\nclearly stated that they sought fees not from the $10 billion-plus class\nsettlement, but instead from the separate $175 million fee recovery that\nVolkswagen paid Class Counsel. Absent a traditional common fund\nfrom which both class members and Class Counsel drew money, this is\nnot a traditional common fund case, and so Nagel Appellants cannot rely\non common fund precedent as controlling when different considerations\napply to standing in non-common fund cases.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51\n\nbenefit for the class” can be “entitled to compensation\nwhether or not chosen as lead counsel”).\n\n Although Rule 23 permits an award of fees when\nauthorized by law or the parties’ agreement, courts\n\n have an independent obligation to ensure that\n the award, like the settlement itself, is\n reasonable, even if the parties have already\n agreed to an amount. The reasonableness of\n any fee award must be considered against the\n backdrop of the “American Rule,” which\n provides that courts generally are without\n discretion to award attorneys’ fees to a\n prevailing plaintiff unless (1) fee-shifting is\n expressly authorized by the governing\n statute; (2) the opponents acted in bad faith or\n willfully violated a court order; or (3) “the\n successful litigants have created a common\n fund for recovery or extended a substantial\n benefit to a class.”\n\nIn re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,\n941 (9th Cir. 2011) (emphasis added) (citations omitted)\n(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,\n421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here,\nthere is no dispute that neither the first nor the second\nscenario is applicable. Therefore, Appellants would be\nentitled to attorneys’ fees only if they contributed to the\ncreation of a common fund or otherwise benefited the class.\nBecause the underlying class action did not feature a\ntraditional common fund from which attorneys’ fees were\nprocured, 4 Appellants could only have collected fees if they\n\n 4\n See supra note 3.\n\f52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nprovided a substantial benefit to the class, as the district\ncourt correctly recognized. See Vizcaino v. Microsoft Corp.,\n290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors\ndid not . . . substantially benefit the class members, they\nwere not entitled to fees.” (citing Bowles v. Wash. Dep’t of\nRet. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).\n\n This is the central issue across the consolidated appeals:\nwhether Appellants’ efforts meaningfully benefited the\nclass, and whether the district court abused its discretion\nwhen it concluded that they did not and denied their fee\nmotions on that basis.\n\n A. Common Benefit Work\n\n We ultimately conclude that the district court did not\nabuse its discretion when it determined that the efforts of\nnon-Class Counsel for which they sought fees did not benefit\nthe class such that they would be entitled to compensation.\n\n In their reply brief, Nagel Appellants summarize the\nefforts for which they sought reimbursement:\n\n Commencing hundreds of lawsuits nationwide after\n public disclosure of the first NOV and before the\n advent of the MDL;\n\n Filing motions, including “at least four motions to\n preserve evidence” and “at least three motions for\n interim lead counsel positions”;\n\n Conducting early settlement efforts prior to\n consolidation;\n\n Conducting preliminary discovery;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53\n\n Presenting “at least eight conferences for attorneys\n across the country to analyze, discuss, and refine\n approaches to bringing the cases”;\n\n Securing the appointment of two mediators in several\n New Jersey actions prior to consolidation;\n\n Researching potential causes of action;\n\n “Fielding and vetting [] hundreds of phone calls from\n prospective clients,” as well as press inquiries;\n\n Communicating and coordinating with other\n attorneys;\n\n “Communicating with prospective German legal\n counsel regarding potential jurisdiction issues and\n possible efforts to secure key evidence from a foreign\n country”;\n\n “[A]ppearing in New Orleans with a group of other\n local law firms to argue in support of the transfer and\n consolidation of all the cases to the State of New\n Jersey, where [Volkswagen] is incorporated and\n where it maintains key management offices”;\n\n Appearing telephonically in court appearances and\n providing updates to clients after the appointment of\n Class Counsel.\n\nOur analysis will first consider those efforts undertaken prior\nto the appointment of Class Counsel, before addressing work\nperformed subsequently.\n\n i. Work Before Appointment of Class Counsel\n\f54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n As Plaintiffs correctly note, “[E]ven assuming these\nactivities are all attributable to the Appellants, [they] fail to\nestablish how, precisely, these activities benefitted the Class.\nThis shortcoming is fatal to Appellants’ appeals.” In In re\nCendant, a case on which Nagel Appellants frequently rely,\nthe court distinguished between work that benefits a class\nand other, non-compensable work:\n\n [W]e do not think that attorneys can simply\n manufacture fees for themselves by filing a\n complaint in a securities class action. On the\n other hand, attorneys who alone discover\n grounds for a suit, based on their own\n investigation rather than on public reports,\n legitimately create a benefit for the class, and\n comport with the purposes of the securities\n laws. Such attorneys should generally be\n compensated out of the class’s recovery, even\n if the lead plaintiff does not choose them to\n represent the class. More generally,\n attorneys whose complaints contain factual\n research or legal theories that lead counsel\n did not discover, and upon which lead\n counsel later rely, will have a claim on a share\n of the class’s recovery.\n\n404 F.3d at 196–97 (footnote omitted). Undoubtedly,\nAppellants undertook various pre-consolidation efforts on\nbehalf of their individual clients, but there is no indication,\neither in the voluminous record they provided or in the\nbriefs, that this work contributed to the negotiation or\ncrafting of the Settlement or otherwise benefited the class in\nany meaningful way. Appellants may have filed complaints\nand conducted preliminary discovery and settlement work\non behalf of their clients before consolidation of the MDL\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55\n\nand appointment of Class Counsel, but they do not appear to\nhave discovered grounds for suit outside of the information\ncontained in the widely publicized NOVs, or otherwise\nprovided guidance or insights that were later used in\nsecuring the Settlement. In short, Appellants have not\ndemonstrated that, in Plaintiffs’ words, “they engaged in\nserious settlement efforts, much less that any such efforts\ncontributed to the class settlement framework that was\nultimately reached, approved, and successfully\nimplemented.” Therefore, the district court did not abuse its\ndiscretion when it concluded that there “was little to any\npretrial activity in the cases filed by Non-Class Counsel, and\nthe filings alone did not materially drive settlement\nnegotiations with Volkswagen.” 5\n\n ii. Work After Appointment of Class Counsel\n\n Nagel Appellants indicate that most of their post-\nappointment efforts consisted of fielding inquiries from\nprospective clients, explaining the process and mechanics of\nthe Settlement, and “remain[ing] updated on the case.” Such\nwork was specifically mandated by PTO No. 11, which also\nemphasized that “[o]nly Court-appointed Counsel and those\nattorneys working on assignments therefrom that require\nthem to review, analyze, or summarize those filings or\nOrders in connection with their assignments are doing so for\n\n 5\n Although Nagel Appellants claim that Class Counsel’s work\n“consisted of combining/duplicating the work of others to file an\namended complaint followed by their negotiation of the terms of the\nsettlement and the preparation of settlement documents,” and thus “was\nipso facto the ongoing work by all counsel in the early months following\nthe September 2015 public disclosure of the cheat devices,” this assertion\nis countered by Class Counsel’s motion for attorneys’ fees, which\nrecounted their extensive, non-duplicative efforts on behalf of the\nSettlement.\n\f56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthe common benefit. All other counsel are reviewing those\nfilings and Orders for their own benefit and that of their\nrespective clients and such review will not be considered\nCommon Benefit Work.” (emphasis added). The district\ncourt applied similar restrictions to attendance at status\nconferences (“Individual attorneys are free to attend any\nstatus conference . . . but except for Lead Counsel and\nmembers of the Plaintiffs’ Steering Committee or their\ndesignees, attending and listening to such conferences is not\ncompensable Common Benefit Work”), pleading and brief\npreparation (the court specified that “factual and legal\nresearch and preparation of consolidated class action\ncomplaints and related briefing” would be compensable),\nand attendance at seminars (“Except as approved by Lead\nCounsel, attendance at seminars . . . shall not qualify as\nCommon Benefit Work”). (emphasis added). Therefore,\nunder the PTOs issued pursuant to the managerial authority\npossessed by the district court, Appellants’ post-\nappointment work did not benefit the class and hence was\nnot compensable.\n\n No Appellant challenges the PTOs or the district court’s\nauthority to issue them. Indeed, the Federal Judicial Center\nhas noted that a court will often “need to institute procedures\nunder which one or more attorneys are selected and\nauthorized to act on behalf of other counsel and their clients\nwith respect to specified aspects of the litigation,” and\nfurther encouraged that “[e]arly in [complex] litigation, the\ncourt should define designated counsel’s functions,\ndetermine the method of compensation, specify the records\nto be kept, and establish the arrangements for their\ncompensation, including setting up a fund to which\ndesignated parties should contribute in specified\nproportions.” Manual for Complex Litigation §§ 10.22,\n14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57\n\nMfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well\nestablished that ‘[d]istrict courts have inherent power to\ncontrol their docket.’” (alteration in original) (quoting\nAtchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc.,\n146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co.\nv. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986)\n(permitting district court’s pretrial order to govern recovery\nof attorneys’ fees). Accordingly, given the district court’s\ninherent power to manage the MDL, as well as its discretion\nin granting attorneys’ fees, there is no dispute that\nAppellants were required to abide by the PTOs, including\nPTO No. 11. We are told that nearly 100 other law firms\nfollowed the PTOs, and received compensation accordingly.\nBut there is no indication in the record before us that\nAppellants fully adhered to the PTOs’ guidance and\nprocedures.\n\n iii. Summation\n\n Ultimately, we agree with Plaintiffs’ summary of the\nwork undertaken by Appellants and attested to by the\nvoluminous documentation provided to the district court:\n\n Appellants chose to represent individual\n clients who were Class Members in a\n consolidated class action prosecuted by a\n leadership team appointed by the District\n Court. In so choosing, these attorneys\n knowingly undertook work that the District\n Court had correctly concluded would inure\n only to the benefit of their individual clients,\n and not to the Class as a whole. In other\n words, these lawyers knew that, although\n their work might establish a right to recovery\n under their respective attorney-client\n agreements and subject to the ethical\n\f58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n constraints on lawyers, it would not be\n compensable through any petition in the\n MDL.\n\nAppellants point to nothing in the 13,000-page record that\nindicates that the work they performed on behalf of their\nindividual clients, either before or after appointment of Class\nCounsel, informed the Settlement or otherwise benefited the\nclass. 6 Furthermore, the district court explicitly precluded\ncompensation for many of these efforts in its PTOs. 7\n\n As the Third Circuit concluded in In re Cendant, “The\nmere fact that a non-designated counsel worked diligently\nand competently with the goal of benefiting the class is not\nsufficient to merit compensation. Instead, only attorneys\n‘whose efforts create, discover, increase, or preserve’ the\nclass’s ultimate recovery will merit compensation from that\nrecovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp.\nPick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,\n820 n.39 (3d Cir. 1995)). Here, the record clearly indicates\nthat Appellants worked diligently and presumably\n\n 6\n In their reply brief, Nagel Appellants suggest that one firm,\nAppellant Ryder Law Firm, P.C. (Ryder), benefited the class by\n“provid[ing] the Court with comments in relation to the proposed\nsettlement.” However, the excerpts of the record to which Nagel\nAppellants point do not demonstrate that Ryder actually did this, let\nalone that its contributions were utilized in any way by Class Counsel,\nVolkswagen, or the district court.\n\n 7\n Additionally, the district court expressly set forth a process through\nwhich non-Class Counsel could receive reimbursement for any work that\nwas “for the common benefit of Plaintiffs,” was “timely submitted,” and\nwas “reasonable.” However, no Appellant argues that it was authorized\nby Lead Counsel to perform work, of common benefit or otherwise, and\nthen submitted time records as required by the district court’s protocol.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59\n\ncompetently for their clients. But because there is no\nindication that any of these efforts actually benefited the\nclass and complied with the PTOs, the district court did not\nabuse its discretion, by either applying the wrong law or\nrelying on erroneous factual determinations, when it denied\nAppellants’ motions for attorneys’ fees.\n\n B. Additional Arguments\n\n Nagel Appellants advance three additional arguments as\nto how the district court abused its discretion when it issued\nthe Fee Order. 8 We will consider each in turn.\n\n i. Explanation of Denial\n\n Nagel Appellants assert that “[t]he District Court should\nhave, but did not, support its denial with a clear explanation\nbased upon an evaluation of the underlying fee petitions.\nThis was legal error.” We disagree. The district court was\nrequired only to “articulate with sufficient clarity the manner\nin which it ma[de] its determination.” Carter v. Caleb Brett\n\n 8\n In the “Issues Presented” section of their opening brief, Nagel\nAppellants identify a fourth additional issue: “whether the District Court\nerred in the selection of the lead firms by requesting that the firms\nindicate the support of other firms applying for the appointment and\nconsidering this ‘popularity’ factor.” However, they provide no\nsubstantive argument to accompany this issue, either in that introductory\nsection or anywhere else in the brief, and the issue is not raised in the\nopposition briefs or in Nagel Appellants’ reply. We will therefore treat\nthe issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d\n1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of\n[an] issue.”). Incidentally, a district court’s selection of class counsel is\nreviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr.,\n889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the\ndistrict court’s consideration of this or any other factor when it selected\nClass Counsel constituted such an abuse.\n\f60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v.\nThomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also\nMcGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th\nCir. 1994) (determining that “when ruling on the appropriate\namount of fees, no rote recitation [of factors] is necessary”\nwhere the court’s “decision gives [] no basis for doubting\nthat [it] was familiar with controlling law” and there is no\n“factor which the judge failed to consider”). Here, the\ndistrict court sufficiently explained its decision. It first set\nforth the guidance provided by Rule 23 and relevant\nappellate decisions, and then accurately described the\nvarious work Appellants performed both before and after the\nappointment of Class Counsel—none of which constituted\n“evidence that their services benefited the class as a whole.”\nThis is all that we require: a description of the applicable\nstandard and an engagement with the facts as illustrated by\nthe fee motions. It would be unreasonable to expect the court\nto undertake an extensive analysis of each individual\nmotion 9 when all that is needed is engagement with the\ncontrolling law and explanation of the court’s reasoning. As\nVolkswagen notes, “The fact that Appellants’ fee motions\nwere all found deficient for similar reasons does not make\nthe District Court’s ruling insufficiently reasoned.” Because\nthe district court’s order supplied the necessary level of\nexplanation for its decision, it did not abuse its discretion in\nthis regard.\n\n ii. Parties’ Agreement\n\n Noting that Rule 23 permits recovery of fees “that are\nauthorized . . . by the parties’ agreement,” Fed. R. Civ. P.\n23(h), Nagel Appellants contend that the district court\n\n 9\n In the aggregate, these 244 motions included more than 13,000\npages of supporting documentation.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61\n\nincorrectly concluded that Volkswagen did not agree to pay\nthe fees at issue here as part of the Settlement. But the\nSettlement clearly provided only that “Volkswagen agrees to\npay reasonable attorneys’ fees and costs for work performed\nby Class Counsel in connection with the Action as well as\nthe work performed by other attorneys designated by Class\nCounsel to perform work in connection with the Action.”\n(emphases added). No other document filed as part of the\nSettlement indicates any additional commitment on\nVolkswagen’s part. Although Nagel Appellants suggest that\nclass members were “led to believe—via the Settlement\nAgreement—that their attorneys would be reasonably\ncompensated by Defendants,” 10 this proposition is belied by\nthe Settlement’s Long Form Notice, which read,\n\n Class Counsel will represent you at no charge\n to you, and any fees Class Counsel are paid\n will not affect your compensation under this\n Class Action Settlement. If you want to be\n represented by your own lawyer, you may\n hire one at your own expense. It is possible\n that you will receive less money overall if\n you choose to hire your own lawyer to litigate\n against Volkswagen rather than receive\n compensation from this Class Action\n Settlement.\n\n\n\n\n 10\n This assertion is apparently based on language in the Long Form\nNotice that indicated that “Volkswagen will pay attorneys’ fees and costs\nin addition to the benefits it is providing to the class members in this\nSettlement.” However, on the previous page, the Notice specified that\nonly Class Counsel would receive those fees.\n\f62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n(emphasis added). 11 Accordingly, there was no agreement\nbetween the parties, either explicit or implicit, that\nVolkswagen would compensate Appellants for their efforts.\n\n iii. Quantum Meruit and Unjust Enrichment\n\n Lastly, Nagel Appellants suggest that the district court\nerred when it failed to consider the equitable principles of\nquantum meruit and unjust enrichment. However, although\na court’s power to award attorneys’ fees might be derived\nfrom equity, the existence of this power alone does not\nvitiate the long-recognized requirement that the work of a\nlawyer in a case like this must benefit the class. If, as the\ndistrict court concluded, Appellants did not provide a\nsubstantial benefit, then neither the class members nor Class\nCounsel would have been unjustly enriched at Appellants’\nexpense. Nagel Appellants’ invocation of quantum meruit\ntherefore only begs the original question of whether non-\nClass Counsel’s efforts benefited the class. As they did not,\nno unjust enrichment occurred.\n\nIII. The Lien Order\n\n Feinman, in his separate brief, ostensibly appeals, like\nthe other Appellants, from the Fee Order. He indicates that\n“[t]his is an appeal from the United States District Court for\nthe Northern District of California in which the trial court\n\n 11\n Nagel Appellants note that this language appeared under the\nheading “Do I need to hire my own attorney . . . ?” and therefore,\n“[g]iven that Independent Counsel had already been retained prior to the\nNotice, Class Members would assume the provision, expressed in a\nfuture tense, did not apply.” But however misleading the Long Form\nNotice might have been on this point, this ambiguity certainly did not\nconstitute an agreement that Volkswagen would pay non-Class\nCounsel’s fees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63\n\ndetermined Volkswagen is not required to pay Non-Class\nCounsel attorney fees and costs.” However, the main focus\nof his appeal, as evidenced by his preliminary statement, is\nthe “injunction issued by the District Court for the Northern\nDistrict of California in the Volkswagen Clean Diesel\nlitigation enjoining efforts to assert attorney fee lien claims\nunder State law”—the Lien Order. It is that injunction, and\nnot the Fee Order, that is the basis of Feinman’s various\narguments: that the injunction violated the Anti-Injunction\nAct; that the district court did not have subject matter\njurisdiction to issue the injunction as to his Virginia lien; that\nthe injunction had the effect of imposing the cost of\nremoving polluting vehicles from the roadway on him; that\nthe injunction was premised on an unfounded legal premise;\nthat the injunction violated his due process rights; and that\nthe injunction violated the Fifth Amendment. Indeed,\nFeinman’s conclusion and request for relief references only\nthe Lien Order and not the Fee Order.\n\n The district court already vacated the Lien Order and its\ninjunction, and so they are no longer in effect. Therefore, all\nof the issues contained in Feinman’s brief were rendered\nmoot, and we need not consider them. See Berkeley Cmty.\nHealth Project v. City of Berkeley, 119 F.3d 794, 795 (9th\nCir. 1997) (“Because the district court has vacated its\npreliminary injunction, this appeal is dismissed as moot.”).\nBoth Feinman’s opening brief and his reply brief\ndemonstrate that he is, in effect, asking us for an advisory\nopinion: “What Feinman wants from this appeal is a ruling\nthat nothing the Northern District of California Court ruled\ncan prohibit Feinman from seeking to enforce his attorney\nfee lien rights against Defendant Volkswagen. . . . Feinman\nhas no interest in violating a Federal Court injunction and\nmerely seeks to assert his claim in Virginia State Courts free\nfrom jeopardy.” He even concedes that “[i]f the concession\n\f64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nof Volkswagen and the Plaintiff-Appellees that the issue is\nmoot makes it so Feinman can have the relief requested,\nthere is no need to go further.” There is no doubt that the\nissues he raised are indeed moot. Whether he “can have the\nrelief requested”—which is to say, a lien against\nVolkswagen pursuant to Virginia law—is not an issue\nproperly before us. 12\n\n CONCLUSION\n\n We are sympathetic to Appellants, and have no doubt\nthat many of them dutifully and conscientiously represented\ntheir clients. This is not necessarily a case where latecomers\nattempt to divide spoils that they did not procure. 13 But\nAppellants’ efforts do not entitle them to compensation from\nthe MDL, when the record indicates that they did not\nperform work that benefited the class, and that they\n\n 12\n We might infer from Feinman’s opening brief that his\njurisdictional challenge applies to the Fee Order as well as the vacated\ninjunction. Such an argument would have no merit. We have held that\n“[a] transferee judge exercises all the powers of a district judge in the\ntransferee district under the Federal Rules of Civil Procedure,” which\nincludes “authority to decide all pretrial motions, including dispositive\nmotions such as motions to dismiss, motions for summary judgment,\nmotions for involuntary dismissal under Rule 41(b), motions to strike an\naffirmative defense, and motions for judgment pursuant to a settlement.”\nIn re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,\n1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C.\nv. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that\na federal court properly may exercise ancillary jurisdiction ‘over attorney\nfee disputes collateral to the underlying litigation.’” (quoting Fed. Sav.\n& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).\nTherefore, the district court had jurisdiction over the attorneys’ fees\nmotions.\n 13\n See generally Florence White Williams, The Little Red Hen\n(1918).\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65\n\nneglected to follow the protocol mandated by the district\ncourt. We commend the district court’s efforts to\nsuccessfully manage a massive and potentially ungainly\nMDL, and conclude that the court did not abuse its discretion\nwhen it determined that Appellants were not entitled to\ncompensation.\n\n Accordingly, we AFFIRM the district court’s denial of\nAppellants’ motions for attorneys’ fees.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360685/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583432/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Bishop, Heenan & Davies v. Volkswagen Group of America\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16020\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nBISHOP, HEENAN & DAVIES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3\n\n\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16065\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF MALONEY &\nCAMPOLO, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5\n\n\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16067\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\n\f6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nJAMES BEN FEINMAN; RONALD\nCLARK FLESHMAN, JR.,\n Objectors-Appellants,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16068\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLEMBERG LAW, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16082\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nNAGEL RICE, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16083\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nSTRONG LAW OFFICES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16089\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHYDE & SWIGART,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16092\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nTHE DRISCOLL FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16099\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nVILES AND BECKMAN, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16123\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHOLTON LAW FIRM, PLLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16124\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nMAKAREM & ASSOCIATES, APLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16130\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF SAMUEL W.\nBEARMAN, LLC; SELLERS SKIEVASKI\nKUDER LLP; ARTICE MCGRAW, PA,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16132\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHARRELL & NOWAK, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16156\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\n EGOLF FERLIC HARWOOD, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16158\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nRYDER LAW FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16172\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nPAUL S. ROTHSTEIN,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16180\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W. OPINION\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHAWKS QUINDEL, S.C.; HABUSH\nHABUSH & ROTTIER, S.C.,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35\n\n\n VOLKSWAGEN GROUP OF AMERICA,\n INC.; VOLKSWAGEN, AG; AUDI, AG;\n AUDI OF AMERICA, LLC; PORSCHE\n CARS NORTH AMERICA, INC.;\n ROBERT BOSCH GMBH; ROBERT\n BOSCH, LLC,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Charles R. Breyer, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 22, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n SUMMARY \n\n\n Attorneys’ Fees / Class Action\n\n The panel affirmed the district court’s order denying the\n244 motions for attorneys’ fees filed by non-class counsel,\narising from an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel, in a multi-district\nlitigation concerning claims predicated on Volkswagen’s\nuse of defeat devices in certain VW and Audi diesel vehicles.\n\n The panel held that appellants, who were law firms and\nlawyers that appealed in their own names (with the exception\nof appellant Roald Clark Fleishman, Jr. who joined his\nattorney’s appeal), had standing to challenge the fee order.\nThe panel concluded, as a matter of first impression, that\nappellants had standing because they suffered an injury\n(deprivation of attorneys’ fees) that was caused by the\nconduct complained of (the fee order) and would be\nredressed by judicial relief.\n\n Federal Rule of Civil Procedure 23 permits an award of\nfees when authorized by law or the parties’ agreement, and\ncourts have an independent obligation to ensure that the\naward, like the settlement itself, is reasonable. Because the\nunderlying class action did not feature a traditional common\nfund from which attorneys’ fees were procured, appellants\ncould only have collected fees if they provided a substantial\nbenefit to the class. The panel concluded that the district\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37\n\ncourt did not abuse its discretion when it determined that the\nefforts of non-class counsel for which they sought fees did\nnot benefit the class such that they would be entitled to\ncompensation.\n\n The panel rejected three additional arguments advanced\nby Nagel Rice LLP and others (the Nagel Appellants). The\npanel held that the district court’s order supplied the\nnecessary level of explanation for its decision. The panel\nalso held that there was no agreement between the parties,\neither explicit or implicit, that Volkswagen would\ncompensate the Nagel Appellants for their efforts. Finally,\nthe panel held that the Nagel Appellants improperly invoked\nquantum meruit where non-class counsel did not\nsubstantially benefit the class; and no unjust enrichment\noccurred.\n\n Appellant James Ben Feinman’s separate brief\nchallenged the district court’s injunction enjoining efforts to\nassert attorney fee lien claims under State law. The panel\nheld that because the district court vacated the lien order and\nits injunction, all of the issues contained in Feinman’s brief\nwere rendered moot, and the panel need not consider them.\n\n\n COUNSEL\n\nBruce H. Nagel (argued) and Diane E. Sammons, Nagel\nRice, LLP, Roseland, New Jersey; James B. Feinman\n(argued), James B. Feinman & Associates, Lynchburg,\nCalifornia; Sara Khosroabadi and Joshua B. Swigart, Hyde\n& Swigart, San Diego, California; for Objectors-Appellants.\n\nSamuel Issacharoff (argued), New York, New York; Kevin\nR. Budner, David S. Stellings, and Elizabeth J. Cabraser,\n\f38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLieff Cabraser Heimann & Bernstein LLP, San Francisco,\nCalifornia; Robin L. Greenwald, Weitz & Luxenberg P.C.,\nNew York, New York; Christopher A. Seeger, Seeger Weiss\nLLP, New York, New York; Paul J. Geller, Robbins Geller\nRudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln\nSarko, Keller Rohrback L.L.P., Seattle, Washington;\nMichael D. Hausfeld, Hausfeld LLP, Washington, D.C.;\nJayne Conroy, Simmons Hanly Conroy LLC, New York,\nNew York; Roxanne Barton Conlin, Roxanne Conlin &\nAssociates P.C., Des Moines, Iowa; Joseph F. Rice, Motley\nRice LLC, Mount Pleasant, South Carolina; Michael Everett\nHeygood, Heygood Orr & Pearson, Irving, Texas; Adam J.\nLevitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank\nMario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame,\nCalifornia; James E. Cecchi and Carella, Byrne, Cecchi\nOlstein Brody & Agnello P.C., Roseland, New Jersey; David\nBoies, Boies Schiller & Flexner LLP, Armonk, New York;\nW. Daniel “Dee” Miles III, Beasley Allen Law Firm,\nMontgomery, Alabama; Benjamin L. Bailey, Bailey Glasser\nLLP, Charleston, West Virginia; Steve W. Berman, Hagens\nBerman, Seattle, Washington; Rosemary M. Rivas, Levi &\nKorsinsky LLP, San Francisco, California; David Seabold\nCasey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield\nLLP, San Diego, California; J. Gerard Stranch IV,\nBranstetter Stranch & Jennings, PLLC, Nashville,\nTennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP,\nOakland, California; Roland K. Tellis, Baron & Budd P.C.,\nEncino, California; for Plaintiffs-Appellees.\n\nSharon Nelles (argued), Andrew J. Finn, William B.\nMonahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell\nLLP, New York, New York, for Defendants-Appellees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Appellants are lawyers and law firms that represented\nclass members in an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel. Non-class counsel\nfiled 244 motions for attorneys’ fees. In a single order, the\ndistrict court denied all of the motions, determining that the\nlawyers neither performed common benefit work nor\nfollowed the proper procedures for compensation. We\naffirm. 1\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n On September 18, 2015, the Environmental Protection\nAgency (EPA) issued a Notice of Violation (NOV) in which\nit alleged that Defendants-Appellees Volkswagen Group of\nAmerica, Inc., Volkswagen, AG, and Audi, AG\n(collectively, Volkswagen) used “defeat devices” in 500,000\n\n\n\n 1\n Various appellants filed eighteen separate notices of appeal from\nthe district court’s order, seventeen of which are consolidated here. (The\neighteenth appeal—Autoport, LLC v. Volkswagen Group of America,\nInc., No. 17-16066—was later severed from the consolidation and is\naddressed in a concurrently filed memorandum disposition.) The law\nfirms represented in fifteen of the seventeen consolidated appeals signed\non to the brief prepared by Appellants Nagel Rice, LLP and Hyde &\nSwigart, while Appellants James Ben Feinman and Ronald Clark\nFleshman, Jr. submitted their own, separate brief. Appellant Bishop,\nHeenan & Davies LLC did not sign either of these briefs, and did not\nsubmit its own.\n\f40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nVolkswagen- and Audi-branded TDI “clean diesel” vehicles.\nAs the district court later explained,\n\n [T]he defeat device produces regulation-\n compliant results when it senses the vehicle\n is undergoing testing, but operates a less\n effective emissions control system when the\n vehicle is driven under normal\n circumstances. It was only by using the\n defeat device that Volkswagen was able to\n obtain Certificates of Conformity from EPA\n and Executive Orders from [the California\n Air Resources Board] for its TDI diesel\n engine vehicles. In reality, these vehicles\n emit nitrogen oxides (“NOx”) at a factor of\n up to 40 times over the permitted limit.\n\nTwo months later, the EPA issued a second NOV to\nVolkswagen and Defendant-Appellee Porsche Cars of North\nAmerica, Inc., which implicated the companies’ 3.0-liter\ndiesel engine vehicles.\n\nII. Procedural Background\n\n A. Commencement of Lawsuits\n\n Soon after the issuance of the NOVs, consumers\nnationwide commenced hundreds of lawsuits. One such\naction was spearheaded by Appellant Nagel Rice, LLP\n(Nagel Rice), an illustrative law firm that represented forty-\nthree Volkswagen owners from various states. Nagel Rice\nfiled a complaint in New Jersey federal court on September\n21, 2015—three days after the issuance of the first NOV and\ntwo months before the eventual consolidation of all related\ncases. During this early representation, Nagel Rice asserts\nthat it performed various activities related to the litigation,\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41\n\nincluding conducting research, fielding calls from\nprospective clients and the media, and communicating with\nGerman legal counsel regarding potential jurisdictional and\nevidentiary issues.\n\n Eventually, on December 8, 2015, the Judicial Panel on\nMultidistrict Litigation consolidated the various lawsuits\nand transferred them to the U.S. District Court for the\nNorthern District of California. Ultimately, the district court\nreceived more than one thousand Volkswagen cases as part\nof this multidistrict litigation (MDL), titled In re Volkswagen\n“Clean Diesel” Marketing, Sales Practices, & Product\nLiability Litigation, MDL 2672.\n\n B. Pretrial Orders\n\n On December 9, 2015—the day after the consolidation\nand transfer—the district court issued its first pretrial order\n(PTO), in which it announced its intent “to appoint a\nPlaintiffs’ Steering Committee(s) to conduct and coordinate\nthe pretrial stage of this litigation with the defendants’\nrepresentatives or committee.” Nagel Rice was one of the\nfirms that submitted papers to be selected either as Lead\nCounsel or as a member of the Plaintiffs’ Steering\nCommittee (PSC).\n\n The district court selected a twenty-one-member PSC\nfollowing the application process, and appointed it and Lead\nCounsel (together, Class Counsel) in its seventh PTO (PTO\nNo. 7). This PTO asserted that “as to all matters common to\nthe coordinated cases, and to the fullest extent consistent\nwith the independent fiduciary obligations owed by any and\nall plaintiffs’ counsel to their clients and any putative class,\n[] pretrial proceedings shall [be] conducted by and through\nthe PSC.”\n\f42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n In its eleventh PTO (PTO No. 11), filed on February 25,\n2016, the district court outlined its protocol for common\nbenefit work and expenses. The court explained that “[t]he\nrecovery of common benefit attorneys’ fees and cost\nreimbursements will be limited to ‘Participating Counsel,’”\nwhich it defined as\n\n Lead Counsel and members of the Plaintiffs’\n Steering Committee (along with members\n and staff of their respective firms), any other\n counsel authorized by Lead Counsel to\n perform work that may be considered for\n common benefit compensation, and/or\n counsel who have been specifically approved\n by this Court as Participating Counsel prior\n to incurring any such cost or expense.\n\nIt further elaborated that “Participating Counsel shall be\neligible to receive common benefit attorneys’ fees and\nreimbursement of costs and expenses only if the time\nexpended, costs incurred, and activity in question were (a)\nfor the common benefit of Plaintiffs; (b) timely submitted;\nand (c) reasonable.” As to the first requirement—“for the\ncommon benefit of Plaintiffs”—the district court explained\nthat\n\n [o]nly Court-appointed Counsel and those\n attorneys working on assignments therefrom\n that require them to review, analyze, or\n summarize those filings or Orders in\n connection with their assignments are doing\n so for the common benefit. All other counsel\n are reviewing those filings and Orders for\n their own benefit and that of their respective\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43\n\n clients and such review will not be\n considered Common Benefit Work.\n\n(emphasis added). Class Counsel later reported that “Lead\nCounsel took advantage of the authority granted in PTO 7 to\nenlist and authorize nearly 100 additional firms to perform\nthe necessary common benefit work, which was then tracked\npursuant to the protocol set forth in PTO 11.” 2\n\n The PTOs’ guidance notwithstanding, Nagel Rice claims\nthat, although it was not selected to be Lead Counsel or a\nmember of the PSC, it “appeared telephonically in almost\nevery court appearance relative to the case and provided\ncontinual updates to clients via email,” and “fielded scores\nof telephone calls from clients and other class members\nseeking information relative to the settlement and the\nprocess for submitting objections and claims.” Similarly,\nanother lawyer, Appellant James Ben Feinman, extensively\nlitigated on behalf of 403 individual clients in Virginia state\nand federal courts, in addition to monitoring the MDL.\nThere is no indication in the record that Nagel Rice,\nFeinman, or any other Appellants fully complied with the\nPTOs in performing these efforts.\n\n C. Settlement Process\n\n Class Counsel, along with ninety-seven additional\nplaintiffs’ firms that Lead Counsel enlisted pursuant to PTO\n\n 2\n For example, PSC chair Elizabeth Cabraser attested that “prior to\nthe filing of the Consolidated Consumer Class Action Complaint, [she]\nrequested all firms who had submitted leadership applications and other\ninterested firms to submit information on plaintiffs interested in serving\nas proposed class representatives. Information on [] nearly 600 plaintiffs\nwas submitted by dozens of firms. All of these firms were asked to\nsubmit their time for this effort under PTO 11.” (citation omitted).\n\f44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nNo. 11, embarked on an aggressive settlement process that,\nin the words of Settlement Master Robert S. Mueller III,\n“involved at least 40 meetings and in-person conferences at\nvarious locations, including San Francisco, New York City,\nand Washington, DC, over a five-month period. A number\nof these sessions lasted many hours, both early and late, and\nweekends were not excluded.” The efforts undertaken by\nthis group included drafting a 719-page consolidated class\naction complaint, selecting class representatives, requesting\nand reviewing more than 12 million pages of Volkswagen\ndocuments, and conducting settlement negotiations.\n\n The district court preliminarily approved the resulting\nConsolidated Consumer Class Action Settlement (the\nSettlement) on July 29, 2016. In their motion for preliminary\napproval, the class action’s plaintiffs (Plaintiffs) asserted\nthat “[n]one of the settlement benefits for Class Members\nwill be reduced to pay attorneys’ fees or to reimburse\nexpenses of Class Counsel. Volkswagen will pay attorneys’\nfees and costs separately and in addition to the Settlement\nbenefits to Class Members.”\n\n The court filed its final approval of the Settlement on\nOctober 25, 2016. As of November 2017—one year before\nthe end of the claims period—the claims of more than\n300,000 class members had been submitted and finalized,\nresulting in payments of nearly $7 billion.\n\n D. Recovery of Attorneys’ Fees\n\n Notably, for purposes of these appeals, section 11.1 of\nthe Settlement read in part as follows:\n\n Volkswagen agrees to pay reasonable\n attorneys’ fees and costs for work performed\n by Class Counsel in connection with the\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45\n\n Action as well as the work performed by\n other attorneys designated by Class Counsel\n to perform work in connection with the\n Action in an amount to be negotiated by the\n Parties and that must be approved by the\n Court. . . . If the Parties reach an agreement\n about the amount of attorneys’ fees and costs,\n Class Counsel will submit the negotiated\n amount to the Court for approval. . . . The\n Parties shall have the right to appeal the\n Court’s determination as to the amount of\n attorneys’ fees and costs.\n\nVolkswagen and Class Counsel eventually agreed to an\naward of $175 million in attorneys’ fees and costs, which the\ndistrict court granted on March 17, 2017.\n\n In November 2016, Volkswagen informed the district\ncourt that it had begun receiving “notices of representation\nfrom [attorneys] purporting to assert attorneys’ fee liens on\npayments made to certain class members under” the\nSettlement. The district court also began to receive motions\nfor attorneys’ fees and costs. In response, the court issued\nan order regarding attorneys’ liens (the Lien Order) on\nNovember 22, 2016. It noted that a purpose of the\nSettlement was to “ensure[] Class Members who participate\nin a Buyback have sufficient cash to purchase a comparable\nreplacement vehicle and thus facilitate[] removal of the\npolluting vehicles from the road.” The court continued,\n\n An attorneys’ lien on a Class Member’s\n recovery frustrates this goal. By diverting a\n portion of Class Members’ compensation to\n private counsel, a lien reduces Class\n Members’ compensation and places them in\n\f46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n a position where they must purchase another\n vehicle but lack the funds to do so. Put\n another way, attorneys—notably, attorneys\n who did not have a hand in negotiating the\n Settlement—stand to profit while their clients\n are left with inadequate compensation.\n\nAccordingly, pursuant to its power under the All Writs Act,\nthe district court “enjoin[ed] any state court proceeding\nrelating to an attorneys’ lien on any Class Member’s\nrecovery under the Settlement.”\n\n However, acknowledging that “some attorneys may have\nprovided Class Members with compensable services,” the\ncourt also established a procedure for recovery of attorneys’\nfees, requiring “a separate application for each Class\nMember” that would include “the amount sought; the\nspecific legal service(s) provided, including time records;\nand the terms of the fee agreement that require such an\naward.” The court ultimately received 244 applications,\nincluding one from Nagel Rice.\n\n Feinman, the Virginia lawyer who continued his\nlitigation activities even after consolidation and appointment\nof Class Counsel, filed an objection to the Lien Order\ninjunction and requested more time to comply with the\nprocedure for fee applications. In his objection, he explained\nthe propriety of his attorney’s lien in Virginia, and called\ninto question the district court’s federal question jurisdiction\nover the claims of his clients. He concluded that “this\nHonorable Court has no right, authority or power to annul or\nrepeal Virginia law in regard to statutorily-created liens for\nattorneys’ fees. To do so violates the property rights of Mr.\nFeinman without due process of law, and violates the Full\nFaith and Credit Clause of the United States.”\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47\n\n After reviewing the 244 fee applications, the district\ncourt issued an order (the Fee Order) in which it determined\nthat “Volkswagen did not agree to pay these fees and costs\nas part of the Settlement, and [] Non-Class Counsel have not\noffered evidence that their services benefited the class, as\nopposed to their individual clients,” and consequently\ndenied the motions. The court concluded that “Non-Class\nCounsel’s filing of individual and class complaints prior to\nthe MDL did not benefit the class” because, due to the short\ntime between the first NOV and consolidation of the MDL,\nlittle pretrial activity occurred that might have driven\nsettlement negotiations. It also noted that although “Non-\nClass Counsel offer[ed] evidence that . . . they fielded\nhundreds of phone calls from prospective and actual clients,”\nthese efforts “at most benefited individual class members,\nnot the class as a whole.” As for work undertaken after\nappointment of Class Counsel, the court determined that, due\nto its PTOs, “Non-Class Counsel [] were on notice that they\nwould not receive common benefit compensation for these\nefforts,” and had also been informed of the required\ncompensation procedure outlined in PTO No. 11. Finally,\nthe district court concluded that “the time Non-Class\nCounsel spent advising class members on the terms of the\nSettlement” was “duplicative of that undertaken by Class\ncounsel, and therefore did not ‘confer[] a benefit beyond that\nconferred by lead counsel.’” (alteration in original) (quoting\nIn re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir.\n2005)). Consequently, the court denied the 244 fee\napplications.\n\n In denying the applications, the district court also\nrecognized that “[w]hile Non-Class Counsel are not entitled\nto fees from Volkswagen as part of this class action, Non-\nClass Counsel may be entitled to payment of certain fees and\ncosts pursuant to attorney-client fee agreements.”\n\f48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nAccordingly, the court vacated the Lien Order and its\naccompanying injunction on state court actions to facilitate\nsuch recovery.\n\n These appeals followed.\n\n STANDARD OF REVIEW AND JURISDICTION\n\n An order denying attorneys’ fees is reviewed for abuse\nof discretion. Lane v. Residential Funding Corp., 323 F.3d\n739, 742 (9th Cir. 2003). “Findings of fact are reviewed for\nclear error; conclusions of law are reviewed de novo.”\nStetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We\nhave jurisdiction pursuant to 28 U.S.C. § 1291.\n\n ANALYSIS\n\n Nagel Rice and the other Appellants that signed its brief\n(collectively, Nagel Appellants) suggest that “[t]his appeal\npresents an issue of first impression in the Ninth Circuit:\nwhether Independent Counsel who performed services and\nincurred costs in a multi-district litigation prior to the\nappointment of Lead Counsel are entitled to an award of fees\nand costs, or are only the firms appointed to leadership roles\nentitled to a fee award for services performed prior to their\nappointment.” In truth, however, the central issue before us\nis narrower: whether the district court abused its discretion\nwhen it denied Appellants’ motions for attorneys’ fees.\nAppellants’ challenges to the Fee Order raise various legal\nissues, which we will address in turn.\n\nI. Standing\n\n As a threshold matter, Volkswagen argues that\nAppellants lack standing to appeal. It premises this\ncontention on our previous determination that “the right to\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49\n\nseek attorney’s fees [is vested] in the prevailing party, not\nher attorney, and [] attorneys therefore lack standing to\npursue them.” Pony v. County of Los Angeles, 433 F.3d\n1138, 1142 (9th Cir. 2006). Because Appellants are law\nfirms and lawyers that appeal in their own names (with the\nexception of Appellant Ronald Clark Fleshman, Jr., who is\none of Feinman’s clients and joins his attorney’s appeal),\nVolkswagen contends that Appellants lack standing to\nvindicate a right that is properly vested with their clients, the\nunderlying class members.\n\n We disagree. Nagel Appellants correctly observe that\nthe cases on which Volkswagen relies, Pony included,\nconcerned statutory attorneys’ fees provisions. See Pony,\n433 F.3d at 1142 (discussing fees authorized pursuant to\n42 U.S.C. § 1988). Here, by contrast, Appellants did not\nseek fees pursuant to statute, and so we cannot base our\nconclusion on Pony or other similar cases.\n\n Instead, we conclude that, as a matter of first principles,\nAppellants have the most compelling case for standing\nbecause they suffered an injury (deprivation of attorneys’\nfees) that was caused by the conduct complained of (the Fee\nOrder) and would be redressed by judicial relief. See Lujan\nv. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser\nv. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir.\n2011) (concluding that class plaintiffs in a non-common\nfund case lacked standing to appeal an attorneys’ fee award\nto class counsel because it did not affect class plaintiffs’\nrecovery and so they were not “‘aggrieved’ by the fee\naward” (quoting In re First Capital Holdings Corp. Fin.\nProds. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here,\nAppellants were aggrieved by the district court’s denial of\ntheir motions for attorneys’ fees. Therefore, we conclude\n\f50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat Appellants properly have standing to challenge the Fee\nOrder. 3\n\nII. The Fee Order\n\n Federal Rule of Civil Procedure 23 permits a court to\n“award reasonable attorney’s fees and nontaxable costs that\nare authorized by law or by the parties’ agreement.” Fed. R.\nCiv. P. 23(h). Various courts, including our own, have\ndetermined that even non-class counsel can be entitled to\nattorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th\nCir. 2016) (indicating that an objector can be entitled to\nattorneys’ fees in a class action); In re Cendant, 404 F.3d at\n195 (concluding that an attorney who “creates a substantial\n\n 3\n We note that Nagel Appellants premise their standing argument on\ncases involving common settlement funds, from which both the Supreme\nCourt and this court have acknowledged that litigants and lawyers have\na right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472,\n478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir.\n1977). However, as the district court correctly noted, “[t]he Settlement’s\nFunding Pool is not a traditional common fund from which settlement\nproceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees\nand costs in addition to the payments to the Class rather than from the\nfund created for payments to the Class.” Cf. 5 William B. Rubenstein,\nNewberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund\ncases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he\ncommon fund doctrine allows a court to distribute attorney’s fees from\nthe common fund that is created for the satisfaction of class members’\nclaims . . .” (emphasis added)). Although Nagel Appellants invoked the\ncommon fund doctrine in their brief, their counsel at oral argument\nclearly stated that they sought fees not from the $10 billion-plus class\nsettlement, but instead from the separate $175 million fee recovery that\nVolkswagen paid Class Counsel. Absent a traditional common fund\nfrom which both class members and Class Counsel drew money, this is\nnot a traditional common fund case, and so Nagel Appellants cannot rely\non common fund precedent as controlling when different considerations\napply to standing in non-common fund cases.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51\n\nbenefit for the class” can be “entitled to compensation\nwhether or not chosen as lead counsel”).\n\n Although Rule 23 permits an award of fees when\nauthorized by law or the parties’ agreement, courts\n\n have an independent obligation to ensure that\n the award, like the settlement itself, is\n reasonable, even if the parties have already\n agreed to an amount. The reasonableness of\n any fee award must be considered against the\n backdrop of the “American Rule,” which\n provides that courts generally are without\n discretion to award attorneys’ fees to a\n prevailing plaintiff unless (1) fee-shifting is\n expressly authorized by the governing\n statute; (2) the opponents acted in bad faith or\n willfully violated a court order; or (3) “the\n successful litigants have created a common\n fund for recovery or extended a substantial\n benefit to a class.”\n\nIn re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,\n941 (9th Cir. 2011) (emphasis added) (citations omitted)\n(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,\n421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here,\nthere is no dispute that neither the first nor the second\nscenario is applicable. Therefore, Appellants would be\nentitled to attorneys’ fees only if they contributed to the\ncreation of a common fund or otherwise benefited the class.\nBecause the underlying class action did not feature a\ntraditional common fund from which attorneys’ fees were\nprocured, 4 Appellants could only have collected fees if they\n\n 4\n See supra note 3.\n\f52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nprovided a substantial benefit to the class, as the district\ncourt correctly recognized. See Vizcaino v. Microsoft Corp.,\n290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors\ndid not . . . substantially benefit the class members, they\nwere not entitled to fees.” (citing Bowles v. Wash. Dep’t of\nRet. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).\n\n This is the central issue across the consolidated appeals:\nwhether Appellants’ efforts meaningfully benefited the\nclass, and whether the district court abused its discretion\nwhen it concluded that they did not and denied their fee\nmotions on that basis.\n\n A. Common Benefit Work\n\n We ultimately conclude that the district court did not\nabuse its discretion when it determined that the efforts of\nnon-Class Counsel for which they sought fees did not benefit\nthe class such that they would be entitled to compensation.\n\n In their reply brief, Nagel Appellants summarize the\nefforts for which they sought reimbursement:\n\n Commencing hundreds of lawsuits nationwide after\n public disclosure of the first NOV and before the\n advent of the MDL;\n\n Filing motions, including “at least four motions to\n preserve evidence” and “at least three motions for\n interim lead counsel positions”;\n\n Conducting early settlement efforts prior to\n consolidation;\n\n Conducting preliminary discovery;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53\n\n Presenting “at least eight conferences for attorneys\n across the country to analyze, discuss, and refine\n approaches to bringing the cases”;\n\n Securing the appointment of two mediators in several\n New Jersey actions prior to consolidation;\n\n Researching potential causes of action;\n\n “Fielding and vetting [] hundreds of phone calls from\n prospective clients,” as well as press inquiries;\n\n Communicating and coordinating with other\n attorneys;\n\n “Communicating with prospective German legal\n counsel regarding potential jurisdiction issues and\n possible efforts to secure key evidence from a foreign\n country”;\n\n “[A]ppearing in New Orleans with a group of other\n local law firms to argue in support of the transfer and\n consolidation of all the cases to the State of New\n Jersey, where [Volkswagen] is incorporated and\n where it maintains key management offices”;\n\n Appearing telephonically in court appearances and\n providing updates to clients after the appointment of\n Class Counsel.\n\nOur analysis will first consider those efforts undertaken prior\nto the appointment of Class Counsel, before addressing work\nperformed subsequently.\n\n i. Work Before Appointment of Class Counsel\n\f54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n As Plaintiffs correctly note, “[E]ven assuming these\nactivities are all attributable to the Appellants, [they] fail to\nestablish how, precisely, these activities benefitted the Class.\nThis shortcoming is fatal to Appellants’ appeals.” In In re\nCendant, a case on which Nagel Appellants frequently rely,\nthe court distinguished between work that benefits a class\nand other, non-compensable work:\n\n [W]e do not think that attorneys can simply\n manufacture fees for themselves by filing a\n complaint in a securities class action. On the\n other hand, attorneys who alone discover\n grounds for a suit, based on their own\n investigation rather than on public reports,\n legitimately create a benefit for the class, and\n comport with the purposes of the securities\n laws. Such attorneys should generally be\n compensated out of the class’s recovery, even\n if the lead plaintiff does not choose them to\n represent the class. More generally,\n attorneys whose complaints contain factual\n research or legal theories that lead counsel\n did not discover, and upon which lead\n counsel later rely, will have a claim on a share\n of the class’s recovery.\n\n404 F.3d at 196–97 (footnote omitted). Undoubtedly,\nAppellants undertook various pre-consolidation efforts on\nbehalf of their individual clients, but there is no indication,\neither in the voluminous record they provided or in the\nbriefs, that this work contributed to the negotiation or\ncrafting of the Settlement or otherwise benefited the class in\nany meaningful way. Appellants may have filed complaints\nand conducted preliminary discovery and settlement work\non behalf of their clients before consolidation of the MDL\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55\n\nand appointment of Class Counsel, but they do not appear to\nhave discovered grounds for suit outside of the information\ncontained in the widely publicized NOVs, or otherwise\nprovided guidance or insights that were later used in\nsecuring the Settlement. In short, Appellants have not\ndemonstrated that, in Plaintiffs’ words, “they engaged in\nserious settlement efforts, much less that any such efforts\ncontributed to the class settlement framework that was\nultimately reached, approved, and successfully\nimplemented.” Therefore, the district court did not abuse its\ndiscretion when it concluded that there “was little to any\npretrial activity in the cases filed by Non-Class Counsel, and\nthe filings alone did not materially drive settlement\nnegotiations with Volkswagen.” 5\n\n ii. Work After Appointment of Class Counsel\n\n Nagel Appellants indicate that most of their post-\nappointment efforts consisted of fielding inquiries from\nprospective clients, explaining the process and mechanics of\nthe Settlement, and “remain[ing] updated on the case.” Such\nwork was specifically mandated by PTO No. 11, which also\nemphasized that “[o]nly Court-appointed Counsel and those\nattorneys working on assignments therefrom that require\nthem to review, analyze, or summarize those filings or\nOrders in connection with their assignments are doing so for\n\n 5\n Although Nagel Appellants claim that Class Counsel’s work\n“consisted of combining/duplicating the work of others to file an\namended complaint followed by their negotiation of the terms of the\nsettlement and the preparation of settlement documents,” and thus “was\nipso facto the ongoing work by all counsel in the early months following\nthe September 2015 public disclosure of the cheat devices,” this assertion\nis countered by Class Counsel’s motion for attorneys’ fees, which\nrecounted their extensive, non-duplicative efforts on behalf of the\nSettlement.\n\f56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthe common benefit. All other counsel are reviewing those\nfilings and Orders for their own benefit and that of their\nrespective clients and such review will not be considered\nCommon Benefit Work.” (emphasis added). The district\ncourt applied similar restrictions to attendance at status\nconferences (“Individual attorneys are free to attend any\nstatus conference . . . but except for Lead Counsel and\nmembers of the Plaintiffs’ Steering Committee or their\ndesignees, attending and listening to such conferences is not\ncompensable Common Benefit Work”), pleading and brief\npreparation (the court specified that “factual and legal\nresearch and preparation of consolidated class action\ncomplaints and related briefing” would be compensable),\nand attendance at seminars (“Except as approved by Lead\nCounsel, attendance at seminars . . . shall not qualify as\nCommon Benefit Work”). (emphasis added). Therefore,\nunder the PTOs issued pursuant to the managerial authority\npossessed by the district court, Appellants’ post-\nappointment work did not benefit the class and hence was\nnot compensable.\n\n No Appellant challenges the PTOs or the district court’s\nauthority to issue them. Indeed, the Federal Judicial Center\nhas noted that a court will often “need to institute procedures\nunder which one or more attorneys are selected and\nauthorized to act on behalf of other counsel and their clients\nwith respect to specified aspects of the litigation,” and\nfurther encouraged that “[e]arly in [complex] litigation, the\ncourt should define designated counsel’s functions,\ndetermine the method of compensation, specify the records\nto be kept, and establish the arrangements for their\ncompensation, including setting up a fund to which\ndesignated parties should contribute in specified\nproportions.” Manual for Complex Litigation §§ 10.22,\n14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57\n\nMfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well\nestablished that ‘[d]istrict courts have inherent power to\ncontrol their docket.’” (alteration in original) (quoting\nAtchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc.,\n146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co.\nv. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986)\n(permitting district court’s pretrial order to govern recovery\nof attorneys’ fees). Accordingly, given the district court’s\ninherent power to manage the MDL, as well as its discretion\nin granting attorneys’ fees, there is no dispute that\nAppellants were required to abide by the PTOs, including\nPTO No. 11. We are told that nearly 100 other law firms\nfollowed the PTOs, and received compensation accordingly.\nBut there is no indication in the record before us that\nAppellants fully adhered to the PTOs’ guidance and\nprocedures.\n\n iii. Summation\n\n Ultimately, we agree with Plaintiffs’ summary of the\nwork undertaken by Appellants and attested to by the\nvoluminous documentation provided to the district court:\n\n Appellants chose to represent individual\n clients who were Class Members in a\n consolidated class action prosecuted by a\n leadership team appointed by the District\n Court. In so choosing, these attorneys\n knowingly undertook work that the District\n Court had correctly concluded would inure\n only to the benefit of their individual clients,\n and not to the Class as a whole. In other\n words, these lawyers knew that, although\n their work might establish a right to recovery\n under their respective attorney-client\n agreements and subject to the ethical\n\f58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n constraints on lawyers, it would not be\n compensable through any petition in the\n MDL.\n\nAppellants point to nothing in the 13,000-page record that\nindicates that the work they performed on behalf of their\nindividual clients, either before or after appointment of Class\nCounsel, informed the Settlement or otherwise benefited the\nclass. 6 Furthermore, the district court explicitly precluded\ncompensation for many of these efforts in its PTOs. 7\n\n As the Third Circuit concluded in In re Cendant, “The\nmere fact that a non-designated counsel worked diligently\nand competently with the goal of benefiting the class is not\nsufficient to merit compensation. Instead, only attorneys\n‘whose efforts create, discover, increase, or preserve’ the\nclass’s ultimate recovery will merit compensation from that\nrecovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp.\nPick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,\n820 n.39 (3d Cir. 1995)). Here, the record clearly indicates\nthat Appellants worked diligently and presumably\n\n 6\n In their reply brief, Nagel Appellants suggest that one firm,\nAppellant Ryder Law Firm, P.C. (Ryder), benefited the class by\n“provid[ing] the Court with comments in relation to the proposed\nsettlement.” However, the excerpts of the record to which Nagel\nAppellants point do not demonstrate that Ryder actually did this, let\nalone that its contributions were utilized in any way by Class Counsel,\nVolkswagen, or the district court.\n\n 7\n Additionally, the district court expressly set forth a process through\nwhich non-Class Counsel could receive reimbursement for any work that\nwas “for the common benefit of Plaintiffs,” was “timely submitted,” and\nwas “reasonable.” However, no Appellant argues that it was authorized\nby Lead Counsel to perform work, of common benefit or otherwise, and\nthen submitted time records as required by the district court’s protocol.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59\n\ncompetently for their clients. But because there is no\nindication that any of these efforts actually benefited the\nclass and complied with the PTOs, the district court did not\nabuse its discretion, by either applying the wrong law or\nrelying on erroneous factual determinations, when it denied\nAppellants’ motions for attorneys’ fees.\n\n B. Additional Arguments\n\n Nagel Appellants advance three additional arguments as\nto how the district court abused its discretion when it issued\nthe Fee Order. 8 We will consider each in turn.\n\n i. Explanation of Denial\n\n Nagel Appellants assert that “[t]he District Court should\nhave, but did not, support its denial with a clear explanation\nbased upon an evaluation of the underlying fee petitions.\nThis was legal error.” We disagree. The district court was\nrequired only to “articulate with sufficient clarity the manner\nin which it ma[de] its determination.” Carter v. Caleb Brett\n\n 8\n In the “Issues Presented” section of their opening brief, Nagel\nAppellants identify a fourth additional issue: “whether the District Court\nerred in the selection of the lead firms by requesting that the firms\nindicate the support of other firms applying for the appointment and\nconsidering this ‘popularity’ factor.” However, they provide no\nsubstantive argument to accompany this issue, either in that introductory\nsection or anywhere else in the brief, and the issue is not raised in the\nopposition briefs or in Nagel Appellants’ reply. We will therefore treat\nthe issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d\n1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of\n[an] issue.”). Incidentally, a district court’s selection of class counsel is\nreviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr.,\n889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the\ndistrict court’s consideration of this or any other factor when it selected\nClass Counsel constituted such an abuse.\n\f60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v.\nThomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also\nMcGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th\nCir. 1994) (determining that “when ruling on the appropriate\namount of fees, no rote recitation [of factors] is necessary”\nwhere the court’s “decision gives [] no basis for doubting\nthat [it] was familiar with controlling law” and there is no\n“factor which the judge failed to consider”). Here, the\ndistrict court sufficiently explained its decision. It first set\nforth the guidance provided by Rule 23 and relevant\nappellate decisions, and then accurately described the\nvarious work Appellants performed both before and after the\nappointment of Class Counsel—none of which constituted\n“evidence that their services benefited the class as a whole.”\nThis is all that we require: a description of the applicable\nstandard and an engagement with the facts as illustrated by\nthe fee motions. It would be unreasonable to expect the court\nto undertake an extensive analysis of each individual\nmotion 9 when all that is needed is engagement with the\ncontrolling law and explanation of the court’s reasoning. As\nVolkswagen notes, “The fact that Appellants’ fee motions\nwere all found deficient for similar reasons does not make\nthe District Court’s ruling insufficiently reasoned.” Because\nthe district court’s order supplied the necessary level of\nexplanation for its decision, it did not abuse its discretion in\nthis regard.\n\n ii. Parties’ Agreement\n\n Noting that Rule 23 permits recovery of fees “that are\nauthorized . . . by the parties’ agreement,” Fed. R. Civ. P.\n23(h), Nagel Appellants contend that the district court\n\n 9\n In the aggregate, these 244 motions included more than 13,000\npages of supporting documentation.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61\n\nincorrectly concluded that Volkswagen did not agree to pay\nthe fees at issue here as part of the Settlement. But the\nSettlement clearly provided only that “Volkswagen agrees to\npay reasonable attorneys’ fees and costs for work performed\nby Class Counsel in connection with the Action as well as\nthe work performed by other attorneys designated by Class\nCounsel to perform work in connection with the Action.”\n(emphases added). No other document filed as part of the\nSettlement indicates any additional commitment on\nVolkswagen’s part. Although Nagel Appellants suggest that\nclass members were “led to believe—via the Settlement\nAgreement—that their attorneys would be reasonably\ncompensated by Defendants,” 10 this proposition is belied by\nthe Settlement’s Long Form Notice, which read,\n\n Class Counsel will represent you at no charge\n to you, and any fees Class Counsel are paid\n will not affect your compensation under this\n Class Action Settlement. If you want to be\n represented by your own lawyer, you may\n hire one at your own expense. It is possible\n that you will receive less money overall if\n you choose to hire your own lawyer to litigate\n against Volkswagen rather than receive\n compensation from this Class Action\n Settlement.\n\n\n\n\n 10\n This assertion is apparently based on language in the Long Form\nNotice that indicated that “Volkswagen will pay attorneys’ fees and costs\nin addition to the benefits it is providing to the class members in this\nSettlement.” However, on the previous page, the Notice specified that\nonly Class Counsel would receive those fees.\n\f62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n(emphasis added). 11 Accordingly, there was no agreement\nbetween the parties, either explicit or implicit, that\nVolkswagen would compensate Appellants for their efforts.\n\n iii. Quantum Meruit and Unjust Enrichment\n\n Lastly, Nagel Appellants suggest that the district court\nerred when it failed to consider the equitable principles of\nquantum meruit and unjust enrichment. However, although\na court’s power to award attorneys’ fees might be derived\nfrom equity, the existence of this power alone does not\nvitiate the long-recognized requirement that the work of a\nlawyer in a case like this must benefit the class. If, as the\ndistrict court concluded, Appellants did not provide a\nsubstantial benefit, then neither the class members nor Class\nCounsel would have been unjustly enriched at Appellants’\nexpense. Nagel Appellants’ invocation of quantum meruit\ntherefore only begs the original question of whether non-\nClass Counsel’s efforts benefited the class. As they did not,\nno unjust enrichment occurred.\n\nIII. The Lien Order\n\n Feinman, in his separate brief, ostensibly appeals, like\nthe other Appellants, from the Fee Order. He indicates that\n“[t]his is an appeal from the United States District Court for\nthe Northern District of California in which the trial court\n\n 11\n Nagel Appellants note that this language appeared under the\nheading “Do I need to hire my own attorney . . . ?” and therefore,\n“[g]iven that Independent Counsel had already been retained prior to the\nNotice, Class Members would assume the provision, expressed in a\nfuture tense, did not apply.” But however misleading the Long Form\nNotice might have been on this point, this ambiguity certainly did not\nconstitute an agreement that Volkswagen would pay non-Class\nCounsel’s fees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63\n\ndetermined Volkswagen is not required to pay Non-Class\nCounsel attorney fees and costs.” However, the main focus\nof his appeal, as evidenced by his preliminary statement, is\nthe “injunction issued by the District Court for the Northern\nDistrict of California in the Volkswagen Clean Diesel\nlitigation enjoining efforts to assert attorney fee lien claims\nunder State law”—the Lien Order. It is that injunction, and\nnot the Fee Order, that is the basis of Feinman’s various\narguments: that the injunction violated the Anti-Injunction\nAct; that the district court did not have subject matter\njurisdiction to issue the injunction as to his Virginia lien; that\nthe injunction had the effect of imposing the cost of\nremoving polluting vehicles from the roadway on him; that\nthe injunction was premised on an unfounded legal premise;\nthat the injunction violated his due process rights; and that\nthe injunction violated the Fifth Amendment. Indeed,\nFeinman’s conclusion and request for relief references only\nthe Lien Order and not the Fee Order.\n\n The district court already vacated the Lien Order and its\ninjunction, and so they are no longer in effect. Therefore, all\nof the issues contained in Feinman’s brief were rendered\nmoot, and we need not consider them. See Berkeley Cmty.\nHealth Project v. City of Berkeley, 119 F.3d 794, 795 (9th\nCir. 1997) (“Because the district court has vacated its\npreliminary injunction, this appeal is dismissed as moot.”).\nBoth Feinman’s opening brief and his reply brief\ndemonstrate that he is, in effect, asking us for an advisory\nopinion: “What Feinman wants from this appeal is a ruling\nthat nothing the Northern District of California Court ruled\ncan prohibit Feinman from seeking to enforce his attorney\nfee lien rights against Defendant Volkswagen. . . . Feinman\nhas no interest in violating a Federal Court injunction and\nmerely seeks to assert his claim in Virginia State Courts free\nfrom jeopardy.” He even concedes that “[i]f the concession\n\f64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nof Volkswagen and the Plaintiff-Appellees that the issue is\nmoot makes it so Feinman can have the relief requested,\nthere is no need to go further.” There is no doubt that the\nissues he raised are indeed moot. Whether he “can have the\nrelief requested”—which is to say, a lien against\nVolkswagen pursuant to Virginia law—is not an issue\nproperly before us. 12\n\n CONCLUSION\n\n We are sympathetic to Appellants, and have no doubt\nthat many of them dutifully and conscientiously represented\ntheir clients. This is not necessarily a case where latecomers\nattempt to divide spoils that they did not procure. 13 But\nAppellants’ efforts do not entitle them to compensation from\nthe MDL, when the record indicates that they did not\nperform work that benefited the class, and that they\n\n 12\n We might infer from Feinman’s opening brief that his\njurisdictional challenge applies to the Fee Order as well as the vacated\ninjunction. Such an argument would have no merit. We have held that\n“[a] transferee judge exercises all the powers of a district judge in the\ntransferee district under the Federal Rules of Civil Procedure,” which\nincludes “authority to decide all pretrial motions, including dispositive\nmotions such as motions to dismiss, motions for summary judgment,\nmotions for involuntary dismissal under Rule 41(b), motions to strike an\naffirmative defense, and motions for judgment pursuant to a settlement.”\nIn re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,\n1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C.\nv. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that\na federal court properly may exercise ancillary jurisdiction ‘over attorney\nfee disputes collateral to the underlying litigation.’” (quoting Fed. Sav.\n& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).\nTherefore, the district court had jurisdiction over the attorneys’ fees\nmotions.\n 13\n See generally Florence White Williams, The Little Red Hen\n(1918).\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65\n\nneglected to follow the protocol mandated by the district\ncourt. We commend the district court’s efforts to\nsuccessfully manage a massive and potentially ungainly\nMDL, and conclude that the court did not abuse its discretion\nwhen it determined that Appellants were not entitled to\ncompensation.\n\n Accordingly, we AFFIRM the district court’s denial of\nAppellants’ motions for attorneys’ fees.\n[END_CASE]", "role": "user" } ]
4,583,856		Bishop, Heenan & Davies v. Volkswagen Group of America	2019-01-22	17-16020	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16020\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nBISHOP, HEENAN & DAVIES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3\n\n\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16065\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF MALONEY &\nCAMPOLO, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5\n\n\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16067\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\n\f6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nJAMES BEN FEINMAN; RONALD\nCLARK FLESHMAN, JR.,\n Objectors-Appellants,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16068\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLEMBERG LAW, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16082\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nNAGEL RICE, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16083\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nSTRONG LAW OFFICES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16089\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHYDE & SWIGART,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16092\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nTHE DRISCOLL FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16099\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nVILES AND BECKMAN, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16123\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHOLTON LAW FIRM, PLLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16124\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nMAKAREM & ASSOCIATES, APLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16130\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF SAMUEL W.\nBEARMAN, LLC; SELLERS SKIEVASKI\nKUDER LLP; ARTICE MCGRAW, PA,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16132\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHARRELL & NOWAK, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16156\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\n EGOLF FERLIC HARWOOD, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16158\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nRYDER LAW FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16172\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nPAUL S. ROTHSTEIN,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16180\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W. OPINION\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHAWKS QUINDEL, S.C.; HABUSH\nHABUSH & ROTTIER, S.C.,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35\n\n\n VOLKSWAGEN GROUP OF AMERICA,\n INC.; VOLKSWAGEN, AG; AUDI, AG;\n AUDI OF AMERICA, LLC; PORSCHE\n CARS NORTH AMERICA, INC.;\n ROBERT BOSCH GMBH; ROBERT\n BOSCH, LLC,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Charles R. Breyer, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 22, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n SUMMARY \n\n\n Attorneys’ Fees / Class Action\n\n The panel affirmed the district court’s order denying the\n244 motions for attorneys’ fees filed by non-class counsel,\narising from an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel, in a multi-district\nlitigation concerning claims predicated on Volkswagen’s\nuse of defeat devices in certain VW and Audi diesel vehicles.\n\n The panel held that appellants, who were law firms and\nlawyers that appealed in their own names (with the exception\nof appellant Ronald Clark Fleshman, Jr. who joined his\nattorney’s appeal), had standing to challenge the fee order.\nThe panel concluded, as a matter of first impression, that\nappellants had standing because they suffered an injury\n(deprivation of attorneys’ fees) that was caused by the\nconduct complained of (the fee order) and would be\nredressed by judicial relief.\n\n Federal Rule of Civil Procedure 23 permits an award of\nfees when authorized by law or the parties’ agreement, and\ncourts have an independent obligation to ensure that the\naward, like the settlement itself, is reasonable. Because the\nunderlying class action did not feature a traditional common\nfund from which attorneys’ fees were procured, appellants\ncould only have collected fees if they provided a substantial\nbenefit to the class. The panel concluded that the district\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37\n\ncourt did not abuse its discretion when it determined that the\nefforts of non-class counsel for which they sought fees did\nnot benefit the class such that they would be entitled to\ncompensation.\n\n The panel rejected three additional arguments advanced\nby Nagel Rice LLP and others (the Nagel Appellants). The\npanel held that the district court’s order supplied the\nnecessary level of explanation for its decision. The panel\nalso held that there was no agreement between the parties,\neither explicit or implicit, that Volkswagen would\ncompensate the Nagel Appellants for their efforts. Finally,\nthe panel held that the Nagel Appellants improperly invoked\nquantum meruit where non-class counsel did not\nsubstantially benefit the class; and no unjust enrichment\noccurred.\n\n Appellant James Ben Feinman’s separate brief\nchallenged the district court’s injunction enjoining efforts to\nassert attorney fee lien claims under State law. The panel\nheld that because the district court vacated the lien order and\nits injunction, all of the issues contained in Feinman’s brief\nwere rendered moot, and the panel need not consider them.\n\n\n COUNSEL\n\nBruce H. Nagel (argued) and Diane E. Sammons, Nagel\nRice, LLP, Roseland, New Jersey; James B. Feinman\n(argued), James B. Feinman & Associates, Lynchburg,\nCalifornia; Sara Khosroabadi and Joshua B. Swigart, Hyde\n& Swigart, San Diego, California; for Objectors-Appellants.\n\nSamuel Issacharoff (argued), New York, New York; Kevin\nR. Budner, David S. Stellings, and Elizabeth J. Cabraser,\n\f38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLieff Cabraser Heimann & Bernstein LLP, San Francisco,\nCalifornia; Robin L. Greenwald, Weitz & Luxenberg P.C.,\nNew York, New York; Christopher A. Seeger, Seeger Weiss\nLLP, New York, New York; Paul J. Geller, Robbins Geller\nRudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln\nSarko, Keller Rohrback L.L.P., Seattle, Washington;\nMichael D. Hausfeld, Hausfeld LLP, Washington, D.C.;\nJayne Conroy, Simmons Hanly Conroy LLC, New York,\nNew York; Roxanne Barton Conlin, Roxanne Conlin &\nAssociates P.C., Des Moines, Iowa; Joseph F. Rice, Motley\nRice LLC, Mount Pleasant, South Carolina; Michael Everett\nHeygood, Heygood Orr & Pearson, Irving, Texas; Adam J.\nLevitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank\nMario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame,\nCalifornia; James E. Cecchi and Carella, Byrne, Cecchi\nOlstein Brody & Agnello P.C., Roseland, New Jersey; David\nBoies, Boies Schiller & Flexner LLP, Armonk, New York;\nW. Daniel “Dee” Miles III, Beasley Allen Law Firm,\nMontgomery, Alabama; Benjamin L. Bailey, Bailey Glasser\nLLP, Charleston, West Virginia; Steve W. Berman, Hagens\nBerman, Seattle, Washington; Rosemary M. Rivas, Levi &\nKorsinsky LLP, San Francisco, California; David Seabold\nCasey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield\nLLP, San Diego, California; J. Gerard Stranch IV,\nBranstetter Stranch & Jennings, PLLC, Nashville,\nTennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP,\nOakland, California; Roland K. Tellis, Baron & Budd P.C.,\nEncino, California; for Plaintiffs-Appellees.\n\nSharon Nelles (argued), Andrew J. Finn, William B.\nMonahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell\nLLP, New York, New York, for Defendants-Appellees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Appellants are lawyers and law firms that represented\nclass members in an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel. Non-class counsel\nfiled 244 motions for attorneys’ fees. In a single order, the\ndistrict court denied all of the motions, determining that the\nlawyers neither performed common benefit work nor\nfollowed the proper procedures for compensation. We\naffirm. 1\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n On September 18, 2015, the Environmental Protection\nAgency (EPA) issued a Notice of Violation (NOV) in which\nit alleged that Defendants-Appellees Volkswagen Group of\nAmerica, Inc., Volkswagen, AG, and Audi, AG\n(collectively, Volkswagen) used “defeat devices” in 500,000\n\n\n\n 1\n Various appellants filed eighteen separate notices of appeal from\nthe district court’s order, seventeen of which are consolidated here. (The\neighteenth appeal—Autoport, LLC v. Volkswagen Group of America,\nInc., No. 17-16066—was later severed from the consolidation and is\naddressed in a concurrently filed memorandum disposition.) The law\nfirms represented in fifteen of the seventeen consolidated appeals signed\non to the brief prepared by Appellants Nagel Rice, LLP and Hyde &\nSwigart, while Appellants James Ben Feinman and Ronald Clark\nFleshman, Jr. submitted their own, separate brief. Appellant Bishop,\nHeenan & Davies LLC did not sign either of these briefs, and did not\nsubmit its own.\n\f40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nVolkswagen- and Audi-branded TDI “clean diesel” vehicles.\nAs the district court later explained,\n\n [T]he defeat device produces regulation-\n compliant results when it senses the vehicle\n is undergoing testing, but operates a less\n effective emissions control system when the\n vehicle is driven under normal\n circumstances. It was only by using the\n defeat device that Volkswagen was able to\n obtain Certificates of Conformity from EPA\n and Executive Orders from [the California\n Air Resources Board] for its TDI diesel\n engine vehicles. In reality, these vehicles\n emit nitrogen oxides (“NOx”) at a factor of\n up to 40 times over the permitted limit.\n\nTwo months later, the EPA issued a second NOV to\nVolkswagen and Defendant-Appellee Porsche Cars of North\nAmerica, Inc., which implicated the companies’ 3.0-liter\ndiesel engine vehicles.\n\nII. Procedural Background\n\n A. Commencement of Lawsuits\n\n Soon after the issuance of the NOVs, consumers\nnationwide commenced hundreds of lawsuits. One such\naction was spearheaded by Appellant Nagel Rice, LLP\n(Nagel Rice), an illustrative law firm that represented forty-\nthree Volkswagen owners from various states. Nagel Rice\nfiled a complaint in New Jersey federal court on September\n21, 2015—three days after the issuance of the first NOV and\ntwo months before the eventual consolidation of all related\ncases. During this early representation, Nagel Rice asserts\nthat it performed various activities related to the litigation,\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41\n\nincluding conducting research, fielding calls from\nprospective clients and the media, and communicating with\nGerman legal counsel regarding potential jurisdictional and\nevidentiary issues.\n\n Eventually, on December 8, 2015, the Judicial Panel on\nMultidistrict Litigation consolidated the various lawsuits\nand transferred them to the U.S. District Court for the\nNorthern District of California. Ultimately, the district court\nreceived more than one thousand Volkswagen cases as part\nof this multidistrict litigation (MDL), titled In re Volkswagen\n“Clean Diesel” Marketing, Sales Practices, & Products\nLiability Litigation, MDL 2672.\n\n B. Pretrial Orders\n\n On December 9, 2015—the day after the consolidation\nand transfer—the district court issued its first pretrial order\n(PTO), in which it announced its intent “to appoint a\nPlaintiffs’ Steering Committee(s) to conduct and coordinate\nthe pretrial stage of this litigation with the defendants’\nrepresentatives or committee.” Nagel Rice was one of the\nfirms that submitted papers to be selected either as Lead\nCounsel or as a member of the Plaintiffs’ Steering\nCommittee (PSC).\n\n The district court selected a twenty-one-member PSC\nfollowing the application process, and appointed it and Lead\nCounsel (together, Class Counsel) in its seventh PTO (PTO\nNo. 7). This PTO asserted that “as to all matters common to\nthe coordinated cases, and to the fullest extent consistent\nwith the independent fiduciary obligations owed by any and\nall plaintiffs’ counsel to their clients and any putative class,\n[] pretrial proceedings shall [be] conducted by and through\nthe PSC.”\n\f42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n In its eleventh PTO (PTO No. 11), filed on February 25,\n2016, the district court outlined its protocol for common\nbenefit work and expenses. The court explained that “[t]he\nrecovery of common benefit attorneys’ fees and cost\nreimbursements will be limited to ‘Participating Counsel,’”\nwhich it defined as\n\n Lead Counsel and members of the Plaintiffs’\n Steering Committee (along with members\n and staff of their respective firms), any other\n counsel authorized by Lead Counsel to\n perform work that may be considered for\n common benefit compensation, and/or\n counsel who have been specifically approved\n by this Court as Participating Counsel prior\n to incurring any such cost or expense.\n\nIt further elaborated that “Participating Counsel shall be\neligible to receive common benefit attorneys’ fees and\nreimbursement of costs and expenses only if the time\nexpended, costs incurred, and activity in question were (a)\nfor the common benefit of Plaintiffs; (b) timely submitted;\nand (c) reasonable.” As to the first requirement—“for the\ncommon benefit of Plaintiffs”—the district court explained\nthat\n\n [o]nly Court-appointed Counsel and those\n attorneys working on assignments therefrom\n that require them to review, analyze, or\n summarize those filings or Orders in\n connection with their assignments are doing\n so for the common benefit. All other counsel\n are reviewing those filings and Orders for\n their own benefit and that of their respective\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43\n\n clients and such review will not be\n considered Common Benefit Work.\n\n(emphasis added). Class Counsel later reported that “Lead\nCounsel took advantage of the authority granted in PTO 7 to\nenlist and authorize nearly 100 additional firms to perform\nthe necessary common benefit work, which was then tracked\npursuant to the protocol set forth in PTO 11.” 2\n\n The PTOs’ guidance notwithstanding, Nagel Rice claims\nthat, although it was not selected to be Lead Counsel or a\nmember of the PSC, it “appeared telephonically in almost\nevery court appearance relative to the case and provided\ncontinual updates to clients via email,” and “fielded scores\nof telephone calls from clients and other class members\nseeking information relative to the settlement and the\nprocess for submitting objections and claims.” Similarly,\nanother lawyer, Appellant James Ben Feinman, extensively\nlitigated on behalf of 403 individual clients in Virginia state\nand federal courts, in addition to monitoring the MDL.\nThere is no indication in the record that Nagel Rice,\nFeinman, or any other Appellants fully complied with the\nPTOs in performing these efforts.\n\n C. Settlement Process\n\n Class Counsel, along with ninety-seven additional\nplaintiffs’ firms that Lead Counsel enlisted pursuant to PTO\n\n 2\n For example, PSC chair Elizabeth Cabraser attested that “prior to\nthe filing of the Consolidated Consumer Class Action Complaint, [she]\nrequested all firms who had submitted leadership applications and other\ninterested firms to submit information on plaintiffs interested in serving\nas proposed class representatives. Information on [] nearly 600 plaintiffs\nwas submitted by dozens of firms. All of these firms were asked to\nsubmit their time for this effort under PTO 11.” (citation omitted).\n\f44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nNo. 11, embarked on an aggressive settlement process that,\nin the words of Settlement Master Robert S. Mueller III,\n“involved at least 40 meetings and in-person conferences at\nvarious locations, including San Francisco, New York City,\nand Washington, DC, over a five-month period. A number\nof these sessions lasted many hours, both early and late, and\nweekends were not excluded.” The efforts undertaken by\nthis group included drafting a 719-page consolidated class\naction complaint, selecting class representatives, requesting\nand reviewing more than 12 million pages of Volkswagen\ndocuments, and conducting settlement negotiations.\n\n The district court preliminarily approved the resulting\nConsolidated Consumer Class Action Settlement (the\nSettlement) on July 29, 2016. In their motion for preliminary\napproval, the class action’s plaintiffs (Plaintiffs) asserted\nthat “[n]one of the settlement benefits for Class Members\nwill be reduced to pay attorneys’ fees or to reimburse\nexpenses of Class Counsel. Volkswagen will pay attorneys’\nfees and costs separately and in addition to the Settlement\nbenefits to Class Members.”\n\n The court filed its final approval of the Settlement on\nOctober 25, 2016. As of November 2017—one year before\nthe end of the claims period—the claims of more than\n300,000 class members had been submitted and finalized,\nresulting in payments of nearly $7 billion.\n\n D. Recovery of Attorneys’ Fees\n\n Notably, for purposes of these appeals, section 11.1 of\nthe Settlement read in part as follows:\n\n Volkswagen agrees to pay reasonable\n attorneys’ fees and costs for work performed\n by Class Counsel in connection with the\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45\n\n Action as well as the work performed by\n other attorneys designated by Class Counsel\n to perform work in connection with the\n Action in an amount to be negotiated by the\n Parties and that must be approved by the\n Court. . . . If the Parties reach an agreement\n about the amount of attorneys’ fees and costs,\n Class Counsel will submit the negotiated\n amount to the Court for approval. . . . The\n Parties shall have the right to appeal the\n Court’s determination as to the amount of\n attorneys’ fees and costs.\n\nVolkswagen and Class Counsel eventually agreed to an\naward of $175 million in attorneys’ fees and costs, which the\ndistrict court granted on March 17, 2017.\n\n In November 2016, Volkswagen informed the district\ncourt that it had begun receiving “notices of representation\nfrom [attorneys] purporting to assert attorneys’ fee liens on\npayments made to certain class members under” the\nSettlement. The district court also began to receive motions\nfor attorneys’ fees and costs. In response, the court issued\nan order regarding attorneys’ liens (the Lien Order) on\nNovember 22, 2016. It noted that a purpose of the\nSettlement was to “ensure[] Class Members who participate\nin a Buyback have sufficient cash to purchase a comparable\nreplacement vehicle and thus facilitate[] removal of the\npolluting vehicles from the road.” The court continued,\n\n An attorneys’ lien on a Class Member’s\n recovery frustrates this goal. By diverting a\n portion of Class Members’ compensation to\n private counsel, a lien reduces Class\n Members’ compensation and places them in\n\f46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n a position where they must purchase another\n vehicle but lack the funds to do so. Put\n another way, attorneys—notably, attorneys\n who did not have a hand in negotiating the\n Settlement—stand to profit while their clients\n are left with inadequate compensation.\n\nAccordingly, pursuant to its power under the All Writs Act,\nthe district court “enjoin[ed] any state court proceeding\nrelating to an attorneys’ lien on any Class Member’s\nrecovery under the Settlement.”\n\n However, acknowledging that “some attorneys may have\nprovided Class Members with compensable services,” the\ncourt also established a procedure for recovery of attorneys’\nfees, requiring “a separate application for each Class\nMember” that would include “the amount sought; the\nspecific legal service(s) provided, including time records;\nand the terms of the fee agreement that require such an\naward.” The court ultimately received 244 applications,\nincluding one from Nagel Rice.\n\n Feinman, the Virginia lawyer who continued his\nlitigation activities even after consolidation and appointment\nof Class Counsel, filed an objection to the Lien Order\ninjunction and requested more time to comply with the\nprocedure for fee applications. In his objection, he explained\nthe propriety of his attorney’s lien in Virginia, and called\ninto question the district court’s federal question jurisdiction\nover the claims of his clients. He concluded that “this\nHonorable Court has no right, authority or power to annul or\nrepeal Virginia law in regard to statutorily-created liens for\nattorneys’ fees. To do so violates the property rights of Mr.\nFeinman without due process of law, and violates the Full\nFaith and Credit Clause of the United States.”\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47\n\n After reviewing the 244 fee applications, the district\ncourt issued an order (the Fee Order) in which it determined\nthat “Volkswagen did not agree to pay these fees and costs\nas part of the Settlement, and [] Non-Class Counsel have not\noffered evidence that their services benefited the class, as\nopposed to their individual clients,” and consequently\ndenied the motions. The court concluded that “Non-Class\nCounsel’s filing of individual and class complaints prior to\nthe MDL did not benefit the class” because, due to the short\ntime between the first NOV and consolidation of the MDL,\nlittle pretrial activity occurred that might have driven\nsettlement negotiations. It also noted that although “Non-\nClass Counsel offer[ed] evidence that . . . they fielded\nhundreds of phone calls from prospective and actual clients,”\nthese efforts “at most benefited individual class members,\nnot the class as a whole.” As for work undertaken after\nappointment of Class Counsel, the court determined that, due\nto its PTOs, “Non-Class Counsel [] were on notice that they\nwould not receive common benefit compensation for these\nefforts,” and had also been informed of the required\ncompensation procedure outlined in PTO No. 11. Finally,\nthe district court concluded that “the time Non-Class\nCounsel spent advising class members on the terms of the\nSettlement” was “duplicative of that undertaken by Class\ncounsel, and therefore did not ‘confer[] a benefit beyond that\nconferred by lead counsel.’” (alteration in original) (quoting\nIn re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir.\n2005)). Consequently, the court denied the 244 fee\napplications.\n\n In denying the applications, the district court also\nrecognized that “[w]hile Non-Class Counsel are not entitled\nto fees from Volkswagen as part of this class action, Non-\nClass Counsel may be entitled to payment of certain fees and\ncosts pursuant to attorney-client fee agreements.”\n\f48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nAccordingly, the court vacated the Lien Order and its\naccompanying injunction on state court actions to facilitate\nsuch recovery.\n\n These appeals followed.\n\n STANDARD OF REVIEW AND JURISDICTION\n\n An order denying attorneys’ fees is reviewed for abuse\nof discretion. Lane v. Residential Funding Corp., 323 F.3d\n739, 742 (9th Cir. 2003). “Findings of fact are reviewed for\nclear error; conclusions of law are reviewed de novo.”\nStetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We\nhave jurisdiction pursuant to 28 U.S.C. § 1291.\n\n ANALYSIS\n\n Nagel Rice and the other Appellants that signed its brief\n(collectively, Nagel Appellants) suggest that “[t]his appeal\npresents an issue of first impression in the Ninth Circuit:\nwhether Independent Counsel who performed services and\nincurred costs in a multi-district litigation prior to the\nappointment of Lead Counsel are entitled to an award of fees\nand costs, or are only the firms appointed to leadership roles\nentitled to a fee award for services performed prior to their\nappointment.” In truth, however, the central issue before us\nis narrower: whether the district court abused its discretion\nwhen it denied Appellants’ motions for attorneys’ fees.\nAppellants’ challenges to the Fee Order raise various legal\nissues, which we will address in turn.\n\nI. Standing\n\n As a threshold matter, Volkswagen argues that\nAppellants lack standing to appeal. It premises this\ncontention on our previous determination that “the right to\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49\n\nseek attorney’s fees [is vested] in the prevailing party, not\nher attorney, and [] attorneys therefore lack standing to\npursue them.” Pony v. County of Los Angeles, 433 F.3d\n1138, 1142 (9th Cir. 2006). Because Appellants are law\nfirms and lawyers that appeal in their own names (with the\nexception of Appellant Ronald Clark Fleshman, Jr., who is\none of Feinman’s clients and joins his attorney’s appeal),\nVolkswagen contends that Appellants lack standing to\nvindicate a right that is properly vested with their clients, the\nunderlying class members.\n\n We disagree. Nagel Appellants correctly observe that\nthe cases on which Volkswagen relies, Pony included,\nconcerned statutory attorneys’ fees provisions. See Pony,\n433 F.3d at 1142 (discussing fees authorized pursuant to\n42 U.S.C. § 1988). Here, by contrast, Appellants did not\nseek fees pursuant to statute, and so we cannot base our\nconclusion on Pony or other similar cases.\n\n Instead, we conclude that, as a matter of first principles,\nAppellants have the most compelling case for standing\nbecause they suffered an injury (deprivation of attorneys’\nfees) that was caused by the conduct complained of (the Fee\nOrder) and would be redressed by judicial relief. See Lujan\nv. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser\nv. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir.\n2011) (concluding that class plaintiffs in a non-common\nfund case lacked standing to appeal an attorneys’ fee award\nto class counsel because it did not affect class plaintiffs’\nrecovery and so they were not “‘aggrieved’ by the fee\naward” (quoting In re First Capital Holdings Corp. Fin.\nProds. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here,\nAppellants were aggrieved by the district court’s denial of\ntheir motions for attorneys’ fees. Therefore, we conclude\n\f50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat Appellants properly have standing to challenge the Fee\nOrder. 3\n\nII. The Fee Order\n\n Federal Rule of Civil Procedure 23 permits a court to\n“award reasonable attorney’s fees and nontaxable costs that\nare authorized by law or by the parties’ agreement.” Fed. R.\nCiv. P. 23(h). Various courts, including our own, have\ndetermined that even non-class counsel can be entitled to\nattorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th\nCir. 2016) (indicating that an objector can be entitled to\nattorneys’ fees in a class action); In re Cendant, 404 F.3d at\n195 (concluding that an attorney who “creates a substantial\n\n 3\n We note that Nagel Appellants premise their standing argument on\ncases involving common settlement funds, from which both the Supreme\nCourt and this court have acknowledged that litigants and lawyers have\na right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472,\n478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir.\n1977). However, as the district court correctly noted, “[t]he Settlement’s\nFunding Pool is not a traditional common fund from which settlement\nproceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees\nand costs in addition to the payments to the Class rather than from the\nfund created for payments to the Class.” Cf. 5 William B. Rubenstein,\nNewberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund\ncases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he\ncommon fund doctrine allows a court to distribute attorney’s fees from\nthe common fund that is created for the satisfaction of class members’\nclaims . . .” (emphasis added)). Although Nagel Appellants invoked the\ncommon fund doctrine in their brief, their counsel at oral argument\nclearly stated that they sought fees not from the $10 billion-plus class\nsettlement, but instead from the separate $175 million fee recovery that\nVolkswagen paid Class Counsel. Absent a traditional common fund\nfrom which both class members and Class Counsel drew money, this is\nnot a traditional common fund case, and so Nagel Appellants cannot rely\non common fund precedent as controlling when different considerations\napply to standing in non-common fund cases.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51\n\nbenefit for the class” can be “entitled to compensation\nwhether or not chosen as lead counsel”).\n\n Although Rule 23 permits an award of fees when\nauthorized by law or the parties’ agreement, courts\n\n have an independent obligation to ensure that\n the award, like the settlement itself, is\n reasonable, even if the parties have already\n agreed to an amount. The reasonableness of\n any fee award must be considered against the\n backdrop of the “American Rule,” which\n provides that courts generally are without\n discretion to award attorneys’ fees to a\n prevailing plaintiff unless (1) fee-shifting is\n expressly authorized by the governing\n statute; (2) the opponents acted in bad faith or\n willfully violated a court order; or (3) “the\n successful litigants have created a common\n fund for recovery or extended a substantial\n benefit to a class.”\n\nIn re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,\n941 (9th Cir. 2011) (emphasis added) (citations omitted)\n(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,\n421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here,\nthere is no dispute that neither the first nor the second\nscenario is applicable. Therefore, Appellants would be\nentitled to attorneys’ fees only if they contributed to the\ncreation of a common fund or otherwise benefited the class.\nBecause the underlying class action did not feature a\ntraditional common fund from which attorneys’ fees were\nprocured, 4 Appellants could only have collected fees if they\n\n 4\n See supra note 3.\n\f52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nprovided a substantial benefit to the class, as the district\ncourt correctly recognized. See Vizcaino v. Microsoft Corp.,\n290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors\ndid not . . . substantially benefit the class members, they\nwere not entitled to fees.” (citing Bowles v. Wash. Dep’t of\nRet. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).\n\n This is the central issue across the consolidated appeals:\nwhether Appellants’ efforts meaningfully benefited the\nclass, and whether the district court abused its discretion\nwhen it concluded that they did not and denied their fee\nmotions on that basis.\n\n A. Common Benefit Work\n\n We ultimately conclude that the district court did not\nabuse its discretion when it determined that the efforts of\nnon-Class Counsel for which they sought fees did not benefit\nthe class such that they would be entitled to compensation.\n\n In their reply brief, Nagel Appellants summarize the\nefforts for which they sought reimbursement:\n\n Commencing hundreds of lawsuits nationwide after\n public disclosure of the first NOV and before the\n advent of the MDL;\n\n Filing motions, including “at least four motions to\n preserve evidence” and “at least three motions for\n interim lead counsel positions”;\n\n Conducting early settlement efforts prior to\n consolidation;\n\n Conducting preliminary discovery;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53\n\n Presenting “at least eight conferences for attorneys\n across the country to analyze, discuss, and refine\n approaches to bringing the cases”;\n\n Securing the appointment of two mediators in several\n New Jersey actions prior to consolidation;\n\n Researching potential causes of action;\n\n “Fielding and vetting [] hundreds of phone calls from\n prospective clients,” as well as press inquiries;\n\n Communicating and coordinating with other\n attorneys;\n\n “Communicating with prospective German legal\n counsel regarding potential jurisdiction issues and\n possible efforts to secure key evidence from a foreign\n country”;\n\n “[A]ppearing in New Orleans with a group of other\n local law firms to argue in support of the transfer and\n consolidation of all the cases to the State of New\n Jersey, where [Volkswagen] is incorporated and\n where it maintains key management offices”;\n\n Appearing telephonically in court appearances and\n providing updates to clients after the appointment of\n Class Counsel.\n\nOur analysis will first consider those efforts undertaken prior\nto the appointment of Class Counsel, before addressing work\nperformed subsequently.\n\f54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n i. Work Before Appointment of Class Counsel\n\n As Plaintiffs correctly note, “[E]ven assuming these\nactivities are all attributable to the Appellants, [they] fail to\nestablish how, precisely, these activities benefitted the Class.\nThis shortcoming is fatal to Appellants’ appeals.” In In re\nCendant, a case on which Nagel Appellants frequently rely,\nthe court distinguished between work that benefits a class\nand other, non-compensable work:\n\n [W]e do not think that attorneys can simply\n manufacture fees for themselves by filing a\n complaint in a securities class action. On the\n other hand, attorneys who alone discover\n grounds for a suit, based on their own\n investigation rather than on public reports,\n legitimately create a benefit for the class, and\n comport with the purposes of the securities\n laws. Such attorneys should generally be\n compensated out of the class’s recovery, even\n if the lead plaintiff does not choose them to\n represent the class. More generally,\n attorneys whose complaints contain factual\n research or legal theories that lead counsel\n did not discover, and upon which lead\n counsel later rely, will have a claim on a share\n of the class’s recovery.\n\n404 F.3d at 196–97 (footnote omitted). Undoubtedly,\nAppellants undertook various pre-consolidation efforts on\nbehalf of their individual clients, but there is no indication,\neither in the voluminous record they provided or in the\nbriefs, that this work contributed to the negotiation or\ncrafting of the Settlement or otherwise benefited the class in\nany meaningful way. Appellants may have filed complaints\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55\n\nand conducted preliminary discovery and settlement work\non behalf of their clients before consolidation of the MDL\nand appointment of Class Counsel, but they do not appear to\nhave discovered grounds for suit outside of the information\ncontained in the widely publicized NOVs, or otherwise\nprovided guidance or insights that were later used in\nsecuring the Settlement. In short, Appellants have not\ndemonstrated that, in Plaintiffs’ words, “they engaged in\nserious settlement efforts, much less that any such efforts\ncontributed to the class settlement framework that was\nultimately reached, approved, and successfully\nimplemented.” Therefore, the district court did not abuse its\ndiscretion when it concluded that there “was little to any\npretrial activity in the cases filed by Non-Class Counsel, and\nthe filings alone did not materially drive settlement\nnegotiations with Volkswagen.” 5\n\n ii. Work After Appointment of Class Counsel\n\n Nagel Appellants indicate that most of their post-\nappointment efforts consisted of fielding inquiries from\nprospective clients, explaining the process and mechanics of\nthe Settlement, and “remain[ing] updated on the case.” Such\nwork was specifically mandated by PTO No. 11, which also\nemphasized that “[o]nly Court-appointed Counsel and those\nattorneys working on assignments therefrom that require\n\n 5\n Although Nagel Appellants claim that Class Counsel’s work\n“consisted of combining/duplicating the work of others to file an\namended complaint followed by their negotiation of the terms of the\nsettlement and the preparation of settlement documents,” and thus “was\nipso facto the ongoing work by all counsel in the early months following\nthe September 2015 public disclosure of the cheat devices,” this assertion\nis countered by Class Counsel’s motion for attorneys’ fees, which\nrecounted their extensive, non-duplicative efforts on behalf of the\nSettlement.\n\f56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthem to review, analyze, or summarize those filings or\nOrders in connection with their assignments are doing so for\nthe common benefit. All other counsel are reviewing those\nfilings and Orders for their own benefit and that of their\nrespective clients and such review will not be considered\nCommon Benefit Work.” (emphasis added). The district\ncourt applied similar restrictions to attendance at status\nconferences (“Individual attorneys are free to attend any\nstatus conference . . . but except for Lead Counsel and\nmembers of the Plaintiffs’ Steering Committee or their\ndesignees, attending and listening to such conferences is not\ncompensable Common Benefit Work”), pleading and brief\npreparation (the court specified that “factual and legal\nresearch and preparation of consolidated class action\ncomplaints and related briefing” would be compensable),\nand attendance at seminars (“Except as approved by Lead\nCounsel, attendance at seminars . . . shall not qualify as\nCommon Benefit Work”). (emphasis added). Therefore,\nunder the PTOs issued pursuant to the managerial authority\npossessed by the district court, Appellants’ post-\nappointment work did not benefit the class and hence was\nnot compensable.\n\n No Appellant challenges the PTOs or the district court’s\nauthority to issue them. Indeed, the Federal Judicial Center\nhas noted that a court will often “need to institute procedures\nunder which one or more attorneys are selected and\nauthorized to act on behalf of other counsel and their clients\nwith respect to specified aspects of the litigation,” and\nfurther encouraged that “[e]arly in [complex] litigation, the\ncourt should define designated counsel’s functions,\ndetermine the method of compensation, specify the records\nto be kept, and establish the arrangements for their\ncompensation, including setting up a fund to which\ndesignated parties should contribute in specified\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57\n\nproportions.” Manual for Complex Litigation §§ 10.22,\n14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR\nMfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well\nestablished that ‘[d]istrict courts have inherent power to\ncontrol their docket.’” (alteration in original) (quoting\nAtchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc.,\n146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co.\nv. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986)\n(permitting district court’s pretrial order to govern recovery\nof attorneys’ fees). Accordingly, given the district court’s\ninherent power to manage the MDL, as well as its discretion\nin granting attorneys’ fees, there is no dispute that\nAppellants were required to abide by the PTOs, including\nPTO No. 11. We are told that nearly 100 other law firms\nfollowed the PTOs, and received compensation accordingly.\nBut there is no indication in the record before us that\nAppellants fully adhered to the PTOs’ guidance and\nprocedures.\n\n iii. Summation\n\n Ultimately, we agree with Plaintiffs’ summary of the\nwork undertaken by Appellants and attested to by the\nvoluminous documentation provided to the district court:\n\n Appellants chose to represent individual\n clients who were Class Members in a\n consolidated class action prosecuted by a\n leadership team appointed by the District\n Court. In so choosing, these attorneys\n knowingly undertook work that the District\n Court had correctly concluded would inure\n only to the benefit of their individual clients,\n and not to the Class as a whole. In other\n words, these lawyers knew that, although\n their work might establish a right to recovery\n\f58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n under their respective attorney-client\n agreements and subject to the ethical\n constraints on lawyers, it would not be\n compensable through any petition in the\n MDL.\n\nAppellants point to nothing in the 13,000-page record that\nindicates that the work they performed on behalf of their\nindividual clients, either before or after appointment of Class\nCounsel, informed the Settlement or otherwise benefited the\nclass. 6 Furthermore, the district court explicitly precluded\ncompensation for many of these efforts in its PTOs. 7\n\n As the Third Circuit concluded in In re Cendant, “The\nmere fact that a non-designated counsel worked diligently\nand competently with the goal of benefiting the class is not\nsufficient to merit compensation. Instead, only attorneys\n‘whose efforts create, discover, increase, or preserve’ the\nclass’s ultimate recovery will merit compensation from that\nrecovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp.\nPick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,\n\n 6\n In their reply brief, Nagel Appellants suggest that one firm,\nAppellant Ryder Law Firm, P.C. (Ryder), benefited the class by\n“provid[ing] the Court with comments in relation to the proposed\nsettlement.” However, the excerpts of the record to which Nagel\nAppellants point do not demonstrate that Ryder actually did this, let\nalone that its contributions were utilized in any way by Class Counsel,\nVolkswagen, or the district court.\n\n 7\n Additionally, the district court expressly set forth a process through\nwhich non-Class Counsel could receive reimbursement for any work that\nwas “for the common benefit of Plaintiffs,” was “timely submitted,” and\nwas “reasonable.” However, no Appellant argues that it was authorized\nby Lead Counsel to perform work, of common benefit or otherwise, and\nthen submitted time records as required by the district court’s protocol.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59\n\n820 n.39 (3d Cir. 1995)). Here, the record clearly indicates\nthat Appellants worked diligently and presumably\ncompetently for their clients. But because there is no\nindication that any of these efforts actually benefited the\nclass and complied with the PTOs, the district court did not\nabuse its discretion, by either applying the wrong law or\nrelying on erroneous factual determinations, when it denied\nAppellants’ motions for attorneys’ fees.\n\n B. Additional Arguments\n\n Nagel Appellants advance three additional arguments as\nto how the district court abused its discretion when it issued\nthe Fee Order. 8 We will consider each in turn.\n\n i. Explanation of Denial\n\n Nagel Appellants assert that “[t]he District Court should\nhave, but did not, support its denial with a clear explanation\nbased upon an evaluation of the underlying fee petitions.\nThis was legal error.” We disagree. The district court was\n\n 8\n In the “Issues Presented” section of their opening brief, Nagel\nAppellants identify a fourth additional issue: “whether the District Court\nerred in the selection of the lead firms by requesting that the firms\nindicate the support of other firms applying for the appointment and\nconsidering this ‘popularity’ factor.” However, they provide no\nsubstantive argument to accompany this issue, either in that introductory\nsection or anywhere else in the brief, and the issue is not raised in the\nopposition briefs or in Nagel Appellants’ reply. We will therefore treat\nthe issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d\n1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of\n[an] issue.”). Incidentally, a district court’s selection of class counsel is\nreviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr.,\n889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the\ndistrict court’s consideration of this or any other factor when it selected\nClass Counsel constituted such an abuse.\n\f60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nrequired only to “articulate with sufficient clarity the manner\nin which it ma[de] its determination.” Carter v. Caleb Brett\nLLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v.\nThomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also\nMcGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th\nCir. 1994) (determining that “when ruling on the appropriate\namount of fees, no rote recitation [of factors] is necessary”\nwhere the court’s “decision gives [] no basis for doubting\nthat [it] was familiar with controlling law” and there is no\n“factor which the judge failed to consider”). Here, the\ndistrict court sufficiently explained its decision. It first set\nforth the guidance provided by Rule 23 and relevant\nappellate decisions, and then accurately described the\nvarious work Appellants performed both before and after the\nappointment of Class Counsel—none of which constituted\n“evidence that their services benefited the class as a whole.”\nThis is all that we require: a description of the applicable\nstandard and an engagement with the facts as illustrated by\nthe fee motions. It would be unreasonable to expect the court\nto undertake an extensive analysis of each individual\nmotion 9 when all that is needed is engagement with the\ncontrolling law and explanation of the court’s reasoning. As\nVolkswagen notes, “The fact that Appellants’ fee motions\nwere all found deficient for similar reasons does not make\nthe District Court’s ruling insufficiently reasoned.” Because\nthe district court’s order supplied the necessary level of\nexplanation for its decision, it did not abuse its discretion in\nthis regard.\n\n\n\n\n 9\n In the aggregate, these 244 motions included more than 13,000\npages of supporting documentation.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61\n\n ii. Parties’ Agreement\n\n Noting that Rule 23 permits recovery of fees “that are\nauthorized . . . by the parties’ agreement,” Fed. R. Civ. P.\n23(h), Nagel Appellants contend that the district court\nincorrectly concluded that Volkswagen did not agree to pay\nthe fees at issue here as part of the Settlement. But the\nSettlement clearly provided only that “Volkswagen agrees to\npay reasonable attorneys’ fees and costs for work performed\nby Class Counsel in connection with the Action as well as\nthe work performed by other attorneys designated by Class\nCounsel to perform work in connection with the Action.”\n(emphases added). No other document filed as part of the\nSettlement indicates any additional commitment on\nVolkswagen’s part. Although Nagel Appellants suggest that\nclass members were “led to believe—via the Settlement\nAgreement—that their attorneys would be reasonably\ncompensated by Defendants,” 10 this proposition is belied by\nthe Settlement’s Long Form Notice, which read,\n\n Class Counsel will represent you at no charge\n to you, and any fees Class Counsel are paid\n will not affect your compensation under this\n Class Action Settlement. If you want to be\n represented by your own lawyer, you may\n hire one at your own expense. It is possible\n that you will receive less money overall if\n you choose to hire your own lawyer to litigate\n\n 10\n This assertion is apparently based on language in the Long Form\nNotice that indicated that “Volkswagen will pay attorneys’ fees and costs\nin addition to the benefits it is providing to the class members in this\nSettlement.” However, on the previous page, the Notice specified that\nonly Class Counsel would receive those fees.\n\f62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n against Volkswagen rather than receive\n compensation from this Class Action\n Settlement.\n\n(emphasis added). 11 Accordingly, there was no agreement\nbetween the parties, either explicit or implicit, that\nVolkswagen would compensate Appellants for their efforts.\n\n iii. Quantum Meruit and Unjust Enrichment\n\n Lastly, Nagel Appellants suggest that the district court\nerred when it failed to consider the equitable principles of\nquantum meruit and unjust enrichment. However, although\na court’s power to award attorneys’ fees might be derived\nfrom equity, the existence of this power alone does not\nvitiate the long-recognized requirement that the work of a\nlawyer in a case like this must benefit the class. If, as the\ndistrict court concluded, Appellants did not provide a\nsubstantial benefit, then neither the class members nor Class\nCounsel would have been unjustly enriched at Appellants’\nexpense. Nagel Appellants’ invocation of quantum meruit\ntherefore only begs the original question of whether non-\nClass Counsel’s efforts benefited the class. As they did not,\nno unjust enrichment occurred.\n\n\n\n\n 11\n Nagel Appellants note that this language appeared under the\nheading “Do I need to hire my own attorney . . . ?” and therefore,\n“[g]iven that Independent Counsel had already been retained prior to the\nNotice, Class Members would assume the provision, expressed in a\nfuture tense, did not apply.” But however misleading the Long Form\nNotice might have been on this point, this ambiguity certainly did not\nconstitute an agreement that Volkswagen would pay non-Class\nCounsel’s fees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63\n\nIII. The Lien Order\n\n Feinman, in his separate brief, ostensibly appeals, like\nthe other Appellants, from the Fee Order. He indicates that\n“[t]his is an appeal from the United States District Court for\nthe Northern District of California in which the trial court\ndetermined Volkswagen is not required to pay Non-Class\nCounsel attorney fees and costs.” However, the main focus\nof his appeal, as evidenced by his preliminary statement, is\nthe “injunction issued by the District Court for the Northern\nDistrict of California in the Volkswagen Clean Diesel\nlitigation enjoining efforts to assert attorney fee lien claims\nunder State law”—the Lien Order. It is that injunction, and\nnot the Fee Order, that is the basis of Feinman’s various\narguments: that the injunction violated the Anti-Injunction\nAct; that the district court did not have subject matter\njurisdiction to issue the injunction as to his Virginia lien; that\nthe injunction had the effect of imposing the cost of\nremoving polluting vehicles from the roadway on him; that\nthe injunction was premised on an unfounded legal premise;\nthat the injunction violated his due process rights; and that\nthe injunction violated the Fifth Amendment. Indeed,\nFeinman’s conclusion and request for relief references only\nthe Lien Order and not the Fee Order.\n\n The district court already vacated the Lien Order and its\ninjunction, and so they are no longer in effect. Therefore, all\nof the issues contained in Feinman’s brief were rendered\nmoot, and we need not consider them. See Berkeley Cmty.\nHealth Project v. City of Berkeley, 119 F.3d 794, 795 (9th\nCir. 1997) (“Because the district court has vacated its\npreliminary injunction, this appeal is dismissed as moot.”).\nBoth Feinman’s opening brief and his reply brief\ndemonstrate that he is, in effect, asking us for an advisory\nopinion: “What Feinman wants from this appeal is a ruling\n\f64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat nothing the Northern District of California Court ruled\ncan prohibit Feinman from seeking to enforce his attorney\nfee lien rights against Defendant Volkswagen. . . . Feinman\nhas no interest in violating a Federal Court injunction and\nmerely seeks to assert his claim in Virginia State Courts free\nfrom jeopardy.” He even concedes that “[i]f the concession\nof Volkswagen and the Plaintiff-Appellees that the issue is\nmoot makes it so Feinman can have the relief requested,\nthere is no need to go further.” There is no doubt that the\nissues he raised are indeed moot. Whether he “can have the\nrelief requested”—which is to say, a lien against\nVolkswagen pursuant to Virginia law—is not an issue\nproperly before us. 12\n\n CONCLUSION\n\n We are sympathetic to Appellants, and have no doubt\nthat many of them dutifully and conscientiously represented\n\n 12\n We might infer from Feinman’s opening brief that his\njurisdictional challenge applies to the Fee Order as well as the vacated\ninjunction. Such an argument would have no merit. We have held that\n“[a] transferee judge exercises all the powers of a district judge in the\ntransferee district under the Federal Rules of Civil Procedure,” which\nincludes “authority to decide all pretrial motions, including dispositive\nmotions such as motions to dismiss, motions for summary judgment,\nmotions for involuntary dismissal under Rule 41(b), motions to strike an\naffirmative defense, and motions for judgment pursuant to a settlement.”\nIn re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,\n1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C.\nv. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that\na federal court properly may exercise ancillary jurisdiction ‘over attorney\nfee disputes collateral to the underlying litigation.’” (quoting Fed. Sav.\n& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).\nTherefore, the district court had jurisdiction over the attorneys’ fees\nmotions.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65\n\ntheir clients. This is not necessarily a case where latecomers\nattempt to divide spoils that they did not procure. 13 But\nAppellants’ efforts do not entitle them to compensation from\nthe MDL, when the record indicates that they did not\nperform work that benefited the class, and that they\nneglected to follow the protocol mandated by the district\ncourt. We commend the district court’s efforts to\nsuccessfully manage a massive and potentially ungainly\nMDL, and conclude that the court did not abuse its discretion\nwhen it determined that Appellants were not entitled to\ncompensation.\n\n Accordingly, we AFFIRM the district court’s denial of\nAppellants’ motions for attorneys’ fees.\n\n\n\n\n 13\n See generally Florence White Williams, The Little Red Hen\n(1918).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361109/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583856/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Bishop, Heenan & Davies v. Volkswagen Group of America\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16020\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nBISHOP, HEENAN & DAVIES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3\n\n\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16065\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\n\f4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF MALONEY &\nCAMPOLO, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5\n\n\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16067\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\n\f6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nJAMES BEN FEINMAN; RONALD\nCLARK FLESHMAN, JR.,\n Objectors-Appellants,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16068\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLEMBERG LAW, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16082\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nNAGEL RICE, LLP,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16083\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nSTRONG LAW OFFICES,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16089\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHYDE & SWIGART,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16092\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nTHE DRISCOLL FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16099\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nVILES AND BECKMAN, LLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16123\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHOLTON LAW FIRM, PLLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16124\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nMAKAREM & ASSOCIATES, APLC,\n Objector-Appellant,\n\n v.\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23\n\n\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16130\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\n\f24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nLAW OFFICE OF SAMUEL W.\nBEARMAN, LLC; SELLERS SKIEVASKI\nKUDER LLP; ARTICE MCGRAW, PA,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16132\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHARRELL & NOWAK, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16156\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\n EGOLF FERLIC HARWOOD, LLC,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16158\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nRYDER LAW FIRM, P.C.,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16172\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W.\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; SCOTT MOEN; RYAN\nJOSEPH SCHUETTE; MEGAN\nWALAWENDER; JOSEPH MORREY;\nMICHAEL LORENZ; NANCY L.\nSTIREK; REBECCA PERLMUTTER;\nADDISON MINOTT; RICHARD\nGROGAN; ALAN BANDICS; MELANI\nBUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nPAUL S. ROTHSTEIN,\n Objector-Appellant,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33\n\n\nVOLKSWAGEN GROUP OF AMERICA,\nINC.; VOLKSWAGEN, AG; AUDI, AG;\nAUDI OF AMERICA, LLC; PORSCHE\nCARS NORTH AMERICA, INC.;\nROBERT BOSCH GMBH; ROBERT\nBOSCH, LLC,\n Defendants-Appellees.\n\n\n\nIN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16180\nMARKETING, SALES PRACTICES, AND\nPRODUCTS LIABILITY LITIGATION, D.C. No.\n 3:15-md-02672-\n CRB\nJASON HILL; RAY PRECIADO; SUSAN\nTARRENCE; STEVEN R. THORNTON;\nANNE DUNCAN ARGENTO; SIMON W. OPINION\nBEAVEN; JULIET BRODIE; SARAH\nBURT; AIMEE EPSTEIN; GEORGE\nFARQUAR; MARK HOULE; REBECCA\nKAPLAN; HELEN KOISK-WESTLY;\nRAYMOND KREIN; STEPHEN VERNER;\nLEO WINTERNITZ; MARCUS\nALEXANDER DOEGE; LESLIE\nMACLISE-KANE; TIMOTHY WATSON;\nFARRAH P. BELL; JERRY LAWHON;\nMICHAEL R. CRUISE; JOHN C.\nDUFURRENA; SCOTT BAHR; KARL\nFRY; CESAR OLMOS; BRITNEY LYNNE\nSCHNATHORST; CARLA BERG;\nAARON JOY; ERIC DAVIDSON WHITE;\nFLOYD BECK WARREN; THOMAS J.\nBUCHBERGER; RUSSELL EVANS;\n\f34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n\nCARMEL RUBIN; DANIEL SULLIVAN;\nMATTHEW CURE; DENISE DE FIESTA;\nMARK ROVNER; WOLFGANG\nSTEUDEL; ANNE MAHLE; DAVID\nMCCARTHY; RYAN JOSEPH\nSCHUETTE; MEGAN WALAWENDER;\nJOSEPH MORREY; MICHAEL LORENZ;\nNANCY L. STIREK; REBECCA\nPERLMUTTER; ADDISON MINOTT;\nRICHARD GROGAN; ALAN BANDICS;\nMELANI BUCHANAN FARMER; KEVIN\nBEDARD; ELIZABETH BEDARD;\nCYNTHIA R. KIRTLAND; MICHAEL\nCHARLES KRIMMELBEIN; WILL\nHARLAN; HEATHER GREENFIELD;\nTHOMAS W. AYALA; HERBERT\nYUSSIM; NICHOLAS BOND; BRIAN J.\nBIALECKI; KATHERINE MEHLS;\nWHITNEY POWERS; ROY MCNEAL;\nBRETT ALTERS; KELLY R. KING;\nRACHEL OTTO; WILLIAM ANDREW\nWILSON; DAVID EBENSTEIN; MARK\nSCHUMACHER; CHAD DIAL; JOSEPH\nHERR; KURT MALLERY; MARION B.\nMOORE; LAURA SWENSON; BRIAN\nNICHOLAS MILLS,\n Plaintiffs-Appellees,\n\nHAWKS QUINDEL, S.C.; HABUSH\nHABUSH & ROTTIER, S.C.,\n Objectors-Appellants,\n\n v.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35\n\n\n VOLKSWAGEN GROUP OF AMERICA,\n INC.; VOLKSWAGEN, AG; AUDI, AG;\n AUDI OF AMERICA, LLC; PORSCHE\n CARS NORTH AMERICA, INC.;\n ROBERT BOSCH GMBH; ROBERT\n BOSCH, LLC,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Charles R. Breyer, District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed January 22, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n SUMMARY \n\n\n Attorneys’ Fees / Class Action\n\n The panel affirmed the district court’s order denying the\n244 motions for attorneys’ fees filed by non-class counsel,\narising from an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel, in a multi-district\nlitigation concerning claims predicated on Volkswagen’s\nuse of defeat devices in certain VW and Audi diesel vehicles.\n\n The panel held that appellants, who were law firms and\nlawyers that appealed in their own names (with the exception\nof appellant Ronald Clark Fleshman, Jr. who joined his\nattorney’s appeal), had standing to challenge the fee order.\nThe panel concluded, as a matter of first impression, that\nappellants had standing because they suffered an injury\n(deprivation of attorneys’ fees) that was caused by the\nconduct complained of (the fee order) and would be\nredressed by judicial relief.\n\n Federal Rule of Civil Procedure 23 permits an award of\nfees when authorized by law or the parties’ agreement, and\ncourts have an independent obligation to ensure that the\naward, like the settlement itself, is reasonable. Because the\nunderlying class action did not feature a traditional common\nfund from which attorneys’ fees were procured, appellants\ncould only have collected fees if they provided a substantial\nbenefit to the class. The panel concluded that the district\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37\n\ncourt did not abuse its discretion when it determined that the\nefforts of non-class counsel for which they sought fees did\nnot benefit the class such that they would be entitled to\ncompensation.\n\n The panel rejected three additional arguments advanced\nby Nagel Rice LLP and others (the Nagel Appellants). The\npanel held that the district court’s order supplied the\nnecessary level of explanation for its decision. The panel\nalso held that there was no agreement between the parties,\neither explicit or implicit, that Volkswagen would\ncompensate the Nagel Appellants for their efforts. Finally,\nthe panel held that the Nagel Appellants improperly invoked\nquantum meruit where non-class counsel did not\nsubstantially benefit the class; and no unjust enrichment\noccurred.\n\n Appellant James Ben Feinman’s separate brief\nchallenged the district court’s injunction enjoining efforts to\nassert attorney fee lien claims under State law. The panel\nheld that because the district court vacated the lien order and\nits injunction, all of the issues contained in Feinman’s brief\nwere rendered moot, and the panel need not consider them.\n\n\n COUNSEL\n\nBruce H. Nagel (argued) and Diane E. Sammons, Nagel\nRice, LLP, Roseland, New Jersey; James B. Feinman\n(argued), James B. Feinman & Associates, Lynchburg,\nCalifornia; Sara Khosroabadi and Joshua B. Swigart, Hyde\n& Swigart, San Diego, California; for Objectors-Appellants.\n\nSamuel Issacharoff (argued), New York, New York; Kevin\nR. Budner, David S. Stellings, and Elizabeth J. Cabraser,\n\f38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nLieff Cabraser Heimann & Bernstein LLP, San Francisco,\nCalifornia; Robin L. Greenwald, Weitz & Luxenberg P.C.,\nNew York, New York; Christopher A. Seeger, Seeger Weiss\nLLP, New York, New York; Paul J. Geller, Robbins Geller\nRudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln\nSarko, Keller Rohrback L.L.P., Seattle, Washington;\nMichael D. Hausfeld, Hausfeld LLP, Washington, D.C.;\nJayne Conroy, Simmons Hanly Conroy LLC, New York,\nNew York; Roxanne Barton Conlin, Roxanne Conlin &\nAssociates P.C., Des Moines, Iowa; Joseph F. Rice, Motley\nRice LLC, Mount Pleasant, South Carolina; Michael Everett\nHeygood, Heygood Orr & Pearson, Irving, Texas; Adam J.\nLevitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank\nMario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame,\nCalifornia; James E. Cecchi and Carella, Byrne, Cecchi\nOlstein Brody & Agnello P.C., Roseland, New Jersey; David\nBoies, Boies Schiller & Flexner LLP, Armonk, New York;\nW. Daniel “Dee” Miles III, Beasley Allen Law Firm,\nMontgomery, Alabama; Benjamin L. Bailey, Bailey Glasser\nLLP, Charleston, West Virginia; Steve W. Berman, Hagens\nBerman, Seattle, Washington; Rosemary M. Rivas, Levi &\nKorsinsky LLP, San Francisco, California; David Seabold\nCasey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield\nLLP, San Diego, California; J. Gerard Stranch IV,\nBranstetter Stranch & Jennings, PLLC, Nashville,\nTennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP,\nOakland, California; Roland K. Tellis, Baron & Budd P.C.,\nEncino, California; for Plaintiffs-Appellees.\n\nSharon Nelles (argued), Andrew J. Finn, William B.\nMonahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell\nLLP, New York, New York, for Defendants-Appellees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Appellants are lawyers and law firms that represented\nclass members in an underlying class action that secured a\nsettlement of more than $10 billion and an additional award\nof $175 million in fees for class counsel. Non-class counsel\nfiled 244 motions for attorneys’ fees. In a single order, the\ndistrict court denied all of the motions, determining that the\nlawyers neither performed common benefit work nor\nfollowed the proper procedures for compensation. We\naffirm. 1\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n On September 18, 2015, the Environmental Protection\nAgency (EPA) issued a Notice of Violation (NOV) in which\nit alleged that Defendants-Appellees Volkswagen Group of\nAmerica, Inc., Volkswagen, AG, and Audi, AG\n(collectively, Volkswagen) used “defeat devices” in 500,000\n\n\n\n 1\n Various appellants filed eighteen separate notices of appeal from\nthe district court’s order, seventeen of which are consolidated here. (The\neighteenth appeal—Autoport, LLC v. Volkswagen Group of America,\nInc., No. 17-16066—was later severed from the consolidation and is\naddressed in a concurrently filed memorandum disposition.) The law\nfirms represented in fifteen of the seventeen consolidated appeals signed\non to the brief prepared by Appellants Nagel Rice, LLP and Hyde &\nSwigart, while Appellants James Ben Feinman and Ronald Clark\nFleshman, Jr. submitted their own, separate brief. Appellant Bishop,\nHeenan & Davies LLC did not sign either of these briefs, and did not\nsubmit its own.\n\f40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nVolkswagen- and Audi-branded TDI “clean diesel” vehicles.\nAs the district court later explained,\n\n [T]he defeat device produces regulation-\n compliant results when it senses the vehicle\n is undergoing testing, but operates a less\n effective emissions control system when the\n vehicle is driven under normal\n circumstances. It was only by using the\n defeat device that Volkswagen was able to\n obtain Certificates of Conformity from EPA\n and Executive Orders from [the California\n Air Resources Board] for its TDI diesel\n engine vehicles. In reality, these vehicles\n emit nitrogen oxides (“NOx”) at a factor of\n up to 40 times over the permitted limit.\n\nTwo months later, the EPA issued a second NOV to\nVolkswagen and Defendant-Appellee Porsche Cars of North\nAmerica, Inc., which implicated the companies’ 3.0-liter\ndiesel engine vehicles.\n\nII. Procedural Background\n\n A. Commencement of Lawsuits\n\n Soon after the issuance of the NOVs, consumers\nnationwide commenced hundreds of lawsuits. One such\naction was spearheaded by Appellant Nagel Rice, LLP\n(Nagel Rice), an illustrative law firm that represented forty-\nthree Volkswagen owners from various states. Nagel Rice\nfiled a complaint in New Jersey federal court on September\n21, 2015—three days after the issuance of the first NOV and\ntwo months before the eventual consolidation of all related\ncases. During this early representation, Nagel Rice asserts\nthat it performed various activities related to the litigation,\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41\n\nincluding conducting research, fielding calls from\nprospective clients and the media, and communicating with\nGerman legal counsel regarding potential jurisdictional and\nevidentiary issues.\n\n Eventually, on December 8, 2015, the Judicial Panel on\nMultidistrict Litigation consolidated the various lawsuits\nand transferred them to the U.S. District Court for the\nNorthern District of California. Ultimately, the district court\nreceived more than one thousand Volkswagen cases as part\nof this multidistrict litigation (MDL), titled In re Volkswagen\n“Clean Diesel” Marketing, Sales Practices, & Products\nLiability Litigation, MDL 2672.\n\n B. Pretrial Orders\n\n On December 9, 2015—the day after the consolidation\nand transfer—the district court issued its first pretrial order\n(PTO), in which it announced its intent “to appoint a\nPlaintiffs’ Steering Committee(s) to conduct and coordinate\nthe pretrial stage of this litigation with the defendants’\nrepresentatives or committee.” Nagel Rice was one of the\nfirms that submitted papers to be selected either as Lead\nCounsel or as a member of the Plaintiffs’ Steering\nCommittee (PSC).\n\n The district court selected a twenty-one-member PSC\nfollowing the application process, and appointed it and Lead\nCounsel (together, Class Counsel) in its seventh PTO (PTO\nNo. 7). This PTO asserted that “as to all matters common to\nthe coordinated cases, and to the fullest extent consistent\nwith the independent fiduciary obligations owed by any and\nall plaintiffs’ counsel to their clients and any putative class,\n[] pretrial proceedings shall [be] conducted by and through\nthe PSC.”\n\f42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n In its eleventh PTO (PTO No. 11), filed on February 25,\n2016, the district court outlined its protocol for common\nbenefit work and expenses. The court explained that “[t]he\nrecovery of common benefit attorneys’ fees and cost\nreimbursements will be limited to ‘Participating Counsel,’”\nwhich it defined as\n\n Lead Counsel and members of the Plaintiffs’\n Steering Committee (along with members\n and staff of their respective firms), any other\n counsel authorized by Lead Counsel to\n perform work that may be considered for\n common benefit compensation, and/or\n counsel who have been specifically approved\n by this Court as Participating Counsel prior\n to incurring any such cost or expense.\n\nIt further elaborated that “Participating Counsel shall be\neligible to receive common benefit attorneys’ fees and\nreimbursement of costs and expenses only if the time\nexpended, costs incurred, and activity in question were (a)\nfor the common benefit of Plaintiffs; (b) timely submitted;\nand (c) reasonable.” As to the first requirement—“for the\ncommon benefit of Plaintiffs”—the district court explained\nthat\n\n [o]nly Court-appointed Counsel and those\n attorneys working on assignments therefrom\n that require them to review, analyze, or\n summarize those filings or Orders in\n connection with their assignments are doing\n so for the common benefit. All other counsel\n are reviewing those filings and Orders for\n their own benefit and that of their respective\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43\n\n clients and such review will not be\n considered Common Benefit Work.\n\n(emphasis added). Class Counsel later reported that “Lead\nCounsel took advantage of the authority granted in PTO 7 to\nenlist and authorize nearly 100 additional firms to perform\nthe necessary common benefit work, which was then tracked\npursuant to the protocol set forth in PTO 11.” 2\n\n The PTOs’ guidance notwithstanding, Nagel Rice claims\nthat, although it was not selected to be Lead Counsel or a\nmember of the PSC, it “appeared telephonically in almost\nevery court appearance relative to the case and provided\ncontinual updates to clients via email,” and “fielded scores\nof telephone calls from clients and other class members\nseeking information relative to the settlement and the\nprocess for submitting objections and claims.” Similarly,\nanother lawyer, Appellant James Ben Feinman, extensively\nlitigated on behalf of 403 individual clients in Virginia state\nand federal courts, in addition to monitoring the MDL.\nThere is no indication in the record that Nagel Rice,\nFeinman, or any other Appellants fully complied with the\nPTOs in performing these efforts.\n\n C. Settlement Process\n\n Class Counsel, along with ninety-seven additional\nplaintiffs’ firms that Lead Counsel enlisted pursuant to PTO\n\n 2\n For example, PSC chair Elizabeth Cabraser attested that “prior to\nthe filing of the Consolidated Consumer Class Action Complaint, [she]\nrequested all firms who had submitted leadership applications and other\ninterested firms to submit information on plaintiffs interested in serving\nas proposed class representatives. Information on [] nearly 600 plaintiffs\nwas submitted by dozens of firms. All of these firms were asked to\nsubmit their time for this effort under PTO 11.” (citation omitted).\n\f44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nNo. 11, embarked on an aggressive settlement process that,\nin the words of Settlement Master Robert S. Mueller III,\n“involved at least 40 meetings and in-person conferences at\nvarious locations, including San Francisco, New York City,\nand Washington, DC, over a five-month period. A number\nof these sessions lasted many hours, both early and late, and\nweekends were not excluded.” The efforts undertaken by\nthis group included drafting a 719-page consolidated class\naction complaint, selecting class representatives, requesting\nand reviewing more than 12 million pages of Volkswagen\ndocuments, and conducting settlement negotiations.\n\n The district court preliminarily approved the resulting\nConsolidated Consumer Class Action Settlement (the\nSettlement) on July 29, 2016. In their motion for preliminary\napproval, the class action’s plaintiffs (Plaintiffs) asserted\nthat “[n]one of the settlement benefits for Class Members\nwill be reduced to pay attorneys’ fees or to reimburse\nexpenses of Class Counsel. Volkswagen will pay attorneys’\nfees and costs separately and in addition to the Settlement\nbenefits to Class Members.”\n\n The court filed its final approval of the Settlement on\nOctober 25, 2016. As of November 2017—one year before\nthe end of the claims period—the claims of more than\n300,000 class members had been submitted and finalized,\nresulting in payments of nearly $7 billion.\n\n D. Recovery of Attorneys’ Fees\n\n Notably, for purposes of these appeals, section 11.1 of\nthe Settlement read in part as follows:\n\n Volkswagen agrees to pay reasonable\n attorneys’ fees and costs for work performed\n by Class Counsel in connection with the\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45\n\n Action as well as the work performed by\n other attorneys designated by Class Counsel\n to perform work in connection with the\n Action in an amount to be negotiated by the\n Parties and that must be approved by the\n Court. . . . If the Parties reach an agreement\n about the amount of attorneys’ fees and costs,\n Class Counsel will submit the negotiated\n amount to the Court for approval. . . . The\n Parties shall have the right to appeal the\n Court’s determination as to the amount of\n attorneys’ fees and costs.\n\nVolkswagen and Class Counsel eventually agreed to an\naward of $175 million in attorneys’ fees and costs, which the\ndistrict court granted on March 17, 2017.\n\n In November 2016, Volkswagen informed the district\ncourt that it had begun receiving “notices of representation\nfrom [attorneys] purporting to assert attorneys’ fee liens on\npayments made to certain class members under” the\nSettlement. The district court also began to receive motions\nfor attorneys’ fees and costs. In response, the court issued\nan order regarding attorneys’ liens (the Lien Order) on\nNovember 22, 2016. It noted that a purpose of the\nSettlement was to “ensure[] Class Members who participate\nin a Buyback have sufficient cash to purchase a comparable\nreplacement vehicle and thus facilitate[] removal of the\npolluting vehicles from the road.” The court continued,\n\n An attorneys’ lien on a Class Member’s\n recovery frustrates this goal. By diverting a\n portion of Class Members’ compensation to\n private counsel, a lien reduces Class\n Members’ compensation and places them in\n\f46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n a position where they must purchase another\n vehicle but lack the funds to do so. Put\n another way, attorneys—notably, attorneys\n who did not have a hand in negotiating the\n Settlement—stand to profit while their clients\n are left with inadequate compensation.\n\nAccordingly, pursuant to its power under the All Writs Act,\nthe district court “enjoin[ed] any state court proceeding\nrelating to an attorneys’ lien on any Class Member’s\nrecovery under the Settlement.”\n\n However, acknowledging that “some attorneys may have\nprovided Class Members with compensable services,” the\ncourt also established a procedure for recovery of attorneys’\nfees, requiring “a separate application for each Class\nMember” that would include “the amount sought; the\nspecific legal service(s) provided, including time records;\nand the terms of the fee agreement that require such an\naward.” The court ultimately received 244 applications,\nincluding one from Nagel Rice.\n\n Feinman, the Virginia lawyer who continued his\nlitigation activities even after consolidation and appointment\nof Class Counsel, filed an objection to the Lien Order\ninjunction and requested more time to comply with the\nprocedure for fee applications. In his objection, he explained\nthe propriety of his attorney’s lien in Virginia, and called\ninto question the district court’s federal question jurisdiction\nover the claims of his clients. He concluded that “this\nHonorable Court has no right, authority or power to annul or\nrepeal Virginia law in regard to statutorily-created liens for\nattorneys’ fees. To do so violates the property rights of Mr.\nFeinman without due process of law, and violates the Full\nFaith and Credit Clause of the United States.”\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47\n\n After reviewing the 244 fee applications, the district\ncourt issued an order (the Fee Order) in which it determined\nthat “Volkswagen did not agree to pay these fees and costs\nas part of the Settlement, and [] Non-Class Counsel have not\noffered evidence that their services benefited the class, as\nopposed to their individual clients,” and consequently\ndenied the motions. The court concluded that “Non-Class\nCounsel’s filing of individual and class complaints prior to\nthe MDL did not benefit the class” because, due to the short\ntime between the first NOV and consolidation of the MDL,\nlittle pretrial activity occurred that might have driven\nsettlement negotiations. It also noted that although “Non-\nClass Counsel offer[ed] evidence that . . . they fielded\nhundreds of phone calls from prospective and actual clients,”\nthese efforts “at most benefited individual class members,\nnot the class as a whole.” As for work undertaken after\nappointment of Class Counsel, the court determined that, due\nto its PTOs, “Non-Class Counsel [] were on notice that they\nwould not receive common benefit compensation for these\nefforts,” and had also been informed of the required\ncompensation procedure outlined in PTO No. 11. Finally,\nthe district court concluded that “the time Non-Class\nCounsel spent advising class members on the terms of the\nSettlement” was “duplicative of that undertaken by Class\ncounsel, and therefore did not ‘confer[] a benefit beyond that\nconferred by lead counsel.’” (alteration in original) (quoting\nIn re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir.\n2005)). Consequently, the court denied the 244 fee\napplications.\n\n In denying the applications, the district court also\nrecognized that “[w]hile Non-Class Counsel are not entitled\nto fees from Volkswagen as part of this class action, Non-\nClass Counsel may be entitled to payment of certain fees and\ncosts pursuant to attorney-client fee agreements.”\n\f48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nAccordingly, the court vacated the Lien Order and its\naccompanying injunction on state court actions to facilitate\nsuch recovery.\n\n These appeals followed.\n\n STANDARD OF REVIEW AND JURISDICTION\n\n An order denying attorneys’ fees is reviewed for abuse\nof discretion. Lane v. Residential Funding Corp., 323 F.3d\n739, 742 (9th Cir. 2003). “Findings of fact are reviewed for\nclear error; conclusions of law are reviewed de novo.”\nStetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We\nhave jurisdiction pursuant to 28 U.S.C. § 1291.\n\n ANALYSIS\n\n Nagel Rice and the other Appellants that signed its brief\n(collectively, Nagel Appellants) suggest that “[t]his appeal\npresents an issue of first impression in the Ninth Circuit:\nwhether Independent Counsel who performed services and\nincurred costs in a multi-district litigation prior to the\nappointment of Lead Counsel are entitled to an award of fees\nand costs, or are only the firms appointed to leadership roles\nentitled to a fee award for services performed prior to their\nappointment.” In truth, however, the central issue before us\nis narrower: whether the district court abused its discretion\nwhen it denied Appellants’ motions for attorneys’ fees.\nAppellants’ challenges to the Fee Order raise various legal\nissues, which we will address in turn.\n\nI. Standing\n\n As a threshold matter, Volkswagen argues that\nAppellants lack standing to appeal. It premises this\ncontention on our previous determination that “the right to\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49\n\nseek attorney’s fees [is vested] in the prevailing party, not\nher attorney, and [] attorneys therefore lack standing to\npursue them.” Pony v. County of Los Angeles, 433 F.3d\n1138, 1142 (9th Cir. 2006). Because Appellants are law\nfirms and lawyers that appeal in their own names (with the\nexception of Appellant Ronald Clark Fleshman, Jr., who is\none of Feinman’s clients and joins his attorney’s appeal),\nVolkswagen contends that Appellants lack standing to\nvindicate a right that is properly vested with their clients, the\nunderlying class members.\n\n We disagree. Nagel Appellants correctly observe that\nthe cases on which Volkswagen relies, Pony included,\nconcerned statutory attorneys’ fees provisions. See Pony,\n433 F.3d at 1142 (discussing fees authorized pursuant to\n42 U.S.C. § 1988). Here, by contrast, Appellants did not\nseek fees pursuant to statute, and so we cannot base our\nconclusion on Pony or other similar cases.\n\n Instead, we conclude that, as a matter of first principles,\nAppellants have the most compelling case for standing\nbecause they suffered an injury (deprivation of attorneys’\nfees) that was caused by the conduct complained of (the Fee\nOrder) and would be redressed by judicial relief. See Lujan\nv. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser\nv. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir.\n2011) (concluding that class plaintiffs in a non-common\nfund case lacked standing to appeal an attorneys’ fee award\nto class counsel because it did not affect class plaintiffs’\nrecovery and so they were not “‘aggrieved’ by the fee\naward” (quoting In re First Capital Holdings Corp. Fin.\nProds. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here,\nAppellants were aggrieved by the district court’s denial of\ntheir motions for attorneys’ fees. Therefore, we conclude\n\f50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat Appellants properly have standing to challenge the Fee\nOrder. 3\n\nII. The Fee Order\n\n Federal Rule of Civil Procedure 23 permits a court to\n“award reasonable attorney’s fees and nontaxable costs that\nare authorized by law or by the parties’ agreement.” Fed. R.\nCiv. P. 23(h). Various courts, including our own, have\ndetermined that even non-class counsel can be entitled to\nattorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th\nCir. 2016) (indicating that an objector can be entitled to\nattorneys’ fees in a class action); In re Cendant, 404 F.3d at\n195 (concluding that an attorney who “creates a substantial\n\n 3\n We note that Nagel Appellants premise their standing argument on\ncases involving common settlement funds, from which both the Supreme\nCourt and this court have acknowledged that litigants and lawyers have\na right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472,\n478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir.\n1977). However, as the district court correctly noted, “[t]he Settlement’s\nFunding Pool is not a traditional common fund from which settlement\nproceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees\nand costs in addition to the payments to the Class rather than from the\nfund created for payments to the Class.” Cf. 5 William B. Rubenstein,\nNewberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund\ncases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he\ncommon fund doctrine allows a court to distribute attorney’s fees from\nthe common fund that is created for the satisfaction of class members’\nclaims . . .” (emphasis added)). Although Nagel Appellants invoked the\ncommon fund doctrine in their brief, their counsel at oral argument\nclearly stated that they sought fees not from the $10 billion-plus class\nsettlement, but instead from the separate $175 million fee recovery that\nVolkswagen paid Class Counsel. Absent a traditional common fund\nfrom which both class members and Class Counsel drew money, this is\nnot a traditional common fund case, and so Nagel Appellants cannot rely\non common fund precedent as controlling when different considerations\napply to standing in non-common fund cases.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51\n\nbenefit for the class” can be “entitled to compensation\nwhether or not chosen as lead counsel”).\n\n Although Rule 23 permits an award of fees when\nauthorized by law or the parties’ agreement, courts\n\n have an independent obligation to ensure that\n the award, like the settlement itself, is\n reasonable, even if the parties have already\n agreed to an amount. The reasonableness of\n any fee award must be considered against the\n backdrop of the “American Rule,” which\n provides that courts generally are without\n discretion to award attorneys’ fees to a\n prevailing plaintiff unless (1) fee-shifting is\n expressly authorized by the governing\n statute; (2) the opponents acted in bad faith or\n willfully violated a court order; or (3) “the\n successful litigants have created a common\n fund for recovery or extended a substantial\n benefit to a class.”\n\nIn re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,\n941 (9th Cir. 2011) (emphasis added) (citations omitted)\n(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,\n421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here,\nthere is no dispute that neither the first nor the second\nscenario is applicable. Therefore, Appellants would be\nentitled to attorneys’ fees only if they contributed to the\ncreation of a common fund or otherwise benefited the class.\nBecause the underlying class action did not feature a\ntraditional common fund from which attorneys’ fees were\nprocured, 4 Appellants could only have collected fees if they\n\n 4\n See supra note 3.\n\f52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nprovided a substantial benefit to the class, as the district\ncourt correctly recognized. See Vizcaino v. Microsoft Corp.,\n290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors\ndid not . . . substantially benefit the class members, they\nwere not entitled to fees.” (citing Bowles v. Wash. Dep’t of\nRet. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).\n\n This is the central issue across the consolidated appeals:\nwhether Appellants’ efforts meaningfully benefited the\nclass, and whether the district court abused its discretion\nwhen it concluded that they did not and denied their fee\nmotions on that basis.\n\n A. Common Benefit Work\n\n We ultimately conclude that the district court did not\nabuse its discretion when it determined that the efforts of\nnon-Class Counsel for which they sought fees did not benefit\nthe class such that they would be entitled to compensation.\n\n In their reply brief, Nagel Appellants summarize the\nefforts for which they sought reimbursement:\n\n Commencing hundreds of lawsuits nationwide after\n public disclosure of the first NOV and before the\n advent of the MDL;\n\n Filing motions, including “at least four motions to\n preserve evidence” and “at least three motions for\n interim lead counsel positions”;\n\n Conducting early settlement efforts prior to\n consolidation;\n\n Conducting preliminary discovery;\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53\n\n Presenting “at least eight conferences for attorneys\n across the country to analyze, discuss, and refine\n approaches to bringing the cases”;\n\n Securing the appointment of two mediators in several\n New Jersey actions prior to consolidation;\n\n Researching potential causes of action;\n\n “Fielding and vetting [] hundreds of phone calls from\n prospective clients,” as well as press inquiries;\n\n Communicating and coordinating with other\n attorneys;\n\n “Communicating with prospective German legal\n counsel regarding potential jurisdiction issues and\n possible efforts to secure key evidence from a foreign\n country”;\n\n “[A]ppearing in New Orleans with a group of other\n local law firms to argue in support of the transfer and\n consolidation of all the cases to the State of New\n Jersey, where [Volkswagen] is incorporated and\n where it maintains key management offices”;\n\n Appearing telephonically in court appearances and\n providing updates to clients after the appointment of\n Class Counsel.\n\nOur analysis will first consider those efforts undertaken prior\nto the appointment of Class Counsel, before addressing work\nperformed subsequently.\n\f54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n i. Work Before Appointment of Class Counsel\n\n As Plaintiffs correctly note, “[E]ven assuming these\nactivities are all attributable to the Appellants, [they] fail to\nestablish how, precisely, these activities benefitted the Class.\nThis shortcoming is fatal to Appellants’ appeals.” In In re\nCendant, a case on which Nagel Appellants frequently rely,\nthe court distinguished between work that benefits a class\nand other, non-compensable work:\n\n [W]e do not think that attorneys can simply\n manufacture fees for themselves by filing a\n complaint in a securities class action. On the\n other hand, attorneys who alone discover\n grounds for a suit, based on their own\n investigation rather than on public reports,\n legitimately create a benefit for the class, and\n comport with the purposes of the securities\n laws. Such attorneys should generally be\n compensated out of the class’s recovery, even\n if the lead plaintiff does not choose them to\n represent the class. More generally,\n attorneys whose complaints contain factual\n research or legal theories that lead counsel\n did not discover, and upon which lead\n counsel later rely, will have a claim on a share\n of the class’s recovery.\n\n404 F.3d at 196–97 (footnote omitted). Undoubtedly,\nAppellants undertook various pre-consolidation efforts on\nbehalf of their individual clients, but there is no indication,\neither in the voluminous record they provided or in the\nbriefs, that this work contributed to the negotiation or\ncrafting of the Settlement or otherwise benefited the class in\nany meaningful way. Appellants may have filed complaints\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55\n\nand conducted preliminary discovery and settlement work\non behalf of their clients before consolidation of the MDL\nand appointment of Class Counsel, but they do not appear to\nhave discovered grounds for suit outside of the information\ncontained in the widely publicized NOVs, or otherwise\nprovided guidance or insights that were later used in\nsecuring the Settlement. In short, Appellants have not\ndemonstrated that, in Plaintiffs’ words, “they engaged in\nserious settlement efforts, much less that any such efforts\ncontributed to the class settlement framework that was\nultimately reached, approved, and successfully\nimplemented.” Therefore, the district court did not abuse its\ndiscretion when it concluded that there “was little to any\npretrial activity in the cases filed by Non-Class Counsel, and\nthe filings alone did not materially drive settlement\nnegotiations with Volkswagen.” 5\n\n ii. Work After Appointment of Class Counsel\n\n Nagel Appellants indicate that most of their post-\nappointment efforts consisted of fielding inquiries from\nprospective clients, explaining the process and mechanics of\nthe Settlement, and “remain[ing] updated on the case.” Such\nwork was specifically mandated by PTO No. 11, which also\nemphasized that “[o]nly Court-appointed Counsel and those\nattorneys working on assignments therefrom that require\n\n 5\n Although Nagel Appellants claim that Class Counsel’s work\n“consisted of combining/duplicating the work of others to file an\namended complaint followed by their negotiation of the terms of the\nsettlement and the preparation of settlement documents,” and thus “was\nipso facto the ongoing work by all counsel in the early months following\nthe September 2015 public disclosure of the cheat devices,” this assertion\nis countered by Class Counsel’s motion for attorneys’ fees, which\nrecounted their extensive, non-duplicative efforts on behalf of the\nSettlement.\n\f56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthem to review, analyze, or summarize those filings or\nOrders in connection with their assignments are doing so for\nthe common benefit. All other counsel are reviewing those\nfilings and Orders for their own benefit and that of their\nrespective clients and such review will not be considered\nCommon Benefit Work.” (emphasis added). The district\ncourt applied similar restrictions to attendance at status\nconferences (“Individual attorneys are free to attend any\nstatus conference . . . but except for Lead Counsel and\nmembers of the Plaintiffs’ Steering Committee or their\ndesignees, attending and listening to such conferences is not\ncompensable Common Benefit Work”), pleading and brief\npreparation (the court specified that “factual and legal\nresearch and preparation of consolidated class action\ncomplaints and related briefing” would be compensable),\nand attendance at seminars (“Except as approved by Lead\nCounsel, attendance at seminars . . . shall not qualify as\nCommon Benefit Work”). (emphasis added). Therefore,\nunder the PTOs issued pursuant to the managerial authority\npossessed by the district court, Appellants’ post-\nappointment work did not benefit the class and hence was\nnot compensable.\n\n No Appellant challenges the PTOs or the district court’s\nauthority to issue them. Indeed, the Federal Judicial Center\nhas noted that a court will often “need to institute procedures\nunder which one or more attorneys are selected and\nauthorized to act on behalf of other counsel and their clients\nwith respect to specified aspects of the litigation,” and\nfurther encouraged that “[e]arly in [complex] litigation, the\ncourt should define designated counsel’s functions,\ndetermine the method of compensation, specify the records\nto be kept, and establish the arrangements for their\ncompensation, including setting up a fund to which\ndesignated parties should contribute in specified\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57\n\nproportions.” Manual for Complex Litigation §§ 10.22,\n14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR\nMfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well\nestablished that ‘[d]istrict courts have inherent power to\ncontrol their docket.’” (alteration in original) (quoting\nAtchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc.,\n146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co.\nv. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986)\n(permitting district court’s pretrial order to govern recovery\nof attorneys’ fees). Accordingly, given the district court’s\ninherent power to manage the MDL, as well as its discretion\nin granting attorneys’ fees, there is no dispute that\nAppellants were required to abide by the PTOs, including\nPTO No. 11. We are told that nearly 100 other law firms\nfollowed the PTOs, and received compensation accordingly.\nBut there is no indication in the record before us that\nAppellants fully adhered to the PTOs’ guidance and\nprocedures.\n\n iii. Summation\n\n Ultimately, we agree with Plaintiffs’ summary of the\nwork undertaken by Appellants and attested to by the\nvoluminous documentation provided to the district court:\n\n Appellants chose to represent individual\n clients who were Class Members in a\n consolidated class action prosecuted by a\n leadership team appointed by the District\n Court. In so choosing, these attorneys\n knowingly undertook work that the District\n Court had correctly concluded would inure\n only to the benefit of their individual clients,\n and not to the Class as a whole. In other\n words, these lawyers knew that, although\n their work might establish a right to recovery\n\f58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n under their respective attorney-client\n agreements and subject to the ethical\n constraints on lawyers, it would not be\n compensable through any petition in the\n MDL.\n\nAppellants point to nothing in the 13,000-page record that\nindicates that the work they performed on behalf of their\nindividual clients, either before or after appointment of Class\nCounsel, informed the Settlement or otherwise benefited the\nclass. 6 Furthermore, the district court explicitly precluded\ncompensation for many of these efforts in its PTOs. 7\n\n As the Third Circuit concluded in In re Cendant, “The\nmere fact that a non-designated counsel worked diligently\nand competently with the goal of benefiting the class is not\nsufficient to merit compensation. Instead, only attorneys\n‘whose efforts create, discover, increase, or preserve’ the\nclass’s ultimate recovery will merit compensation from that\nrecovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp.\nPick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,\n\n 6\n In their reply brief, Nagel Appellants suggest that one firm,\nAppellant Ryder Law Firm, P.C. (Ryder), benefited the class by\n“provid[ing] the Court with comments in relation to the proposed\nsettlement.” However, the excerpts of the record to which Nagel\nAppellants point do not demonstrate that Ryder actually did this, let\nalone that its contributions were utilized in any way by Class Counsel,\nVolkswagen, or the district court.\n\n 7\n Additionally, the district court expressly set forth a process through\nwhich non-Class Counsel could receive reimbursement for any work that\nwas “for the common benefit of Plaintiffs,” was “timely submitted,” and\nwas “reasonable.” However, no Appellant argues that it was authorized\nby Lead Counsel to perform work, of common benefit or otherwise, and\nthen submitted time records as required by the district court’s protocol.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59\n\n820 n.39 (3d Cir. 1995)). Here, the record clearly indicates\nthat Appellants worked diligently and presumably\ncompetently for their clients. But because there is no\nindication that any of these efforts actually benefited the\nclass and complied with the PTOs, the district court did not\nabuse its discretion, by either applying the wrong law or\nrelying on erroneous factual determinations, when it denied\nAppellants’ motions for attorneys’ fees.\n\n B. Additional Arguments\n\n Nagel Appellants advance three additional arguments as\nto how the district court abused its discretion when it issued\nthe Fee Order. 8 We will consider each in turn.\n\n i. Explanation of Denial\n\n Nagel Appellants assert that “[t]he District Court should\nhave, but did not, support its denial with a clear explanation\nbased upon an evaluation of the underlying fee petitions.\nThis was legal error.” We disagree. The district court was\n\n 8\n In the “Issues Presented” section of their opening brief, Nagel\nAppellants identify a fourth additional issue: “whether the District Court\nerred in the selection of the lead firms by requesting that the firms\nindicate the support of other firms applying for the appointment and\nconsidering this ‘popularity’ factor.” However, they provide no\nsubstantive argument to accompany this issue, either in that introductory\nsection or anywhere else in the brief, and the issue is not raised in the\nopposition briefs or in Nagel Appellants’ reply. We will therefore treat\nthe issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d\n1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of\n[an] issue.”). Incidentally, a district court’s selection of class counsel is\nreviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr.,\n889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the\ndistrict court’s consideration of this or any other factor when it selected\nClass Counsel constituted such an abuse.\n\f60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nrequired only to “articulate with sufficient clarity the manner\nin which it ma[de] its determination.” Carter v. Caleb Brett\nLLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v.\nThomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also\nMcGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th\nCir. 1994) (determining that “when ruling on the appropriate\namount of fees, no rote recitation [of factors] is necessary”\nwhere the court’s “decision gives [] no basis for doubting\nthat [it] was familiar with controlling law” and there is no\n“factor which the judge failed to consider”). Here, the\ndistrict court sufficiently explained its decision. It first set\nforth the guidance provided by Rule 23 and relevant\nappellate decisions, and then accurately described the\nvarious work Appellants performed both before and after the\nappointment of Class Counsel—none of which constituted\n“evidence that their services benefited the class as a whole.”\nThis is all that we require: a description of the applicable\nstandard and an engagement with the facts as illustrated by\nthe fee motions. It would be unreasonable to expect the court\nto undertake an extensive analysis of each individual\nmotion 9 when all that is needed is engagement with the\ncontrolling law and explanation of the court’s reasoning. As\nVolkswagen notes, “The fact that Appellants’ fee motions\nwere all found deficient for similar reasons does not make\nthe District Court’s ruling insufficiently reasoned.” Because\nthe district court’s order supplied the necessary level of\nexplanation for its decision, it did not abuse its discretion in\nthis regard.\n\n\n\n\n 9\n In the aggregate, these 244 motions included more than 13,000\npages of supporting documentation.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61\n\n ii. Parties’ Agreement\n\n Noting that Rule 23 permits recovery of fees “that are\nauthorized . . . by the parties’ agreement,” Fed. R. Civ. P.\n23(h), Nagel Appellants contend that the district court\nincorrectly concluded that Volkswagen did not agree to pay\nthe fees at issue here as part of the Settlement. But the\nSettlement clearly provided only that “Volkswagen agrees to\npay reasonable attorneys’ fees and costs for work performed\nby Class Counsel in connection with the Action as well as\nthe work performed by other attorneys designated by Class\nCounsel to perform work in connection with the Action.”\n(emphases added). No other document filed as part of the\nSettlement indicates any additional commitment on\nVolkswagen’s part. Although Nagel Appellants suggest that\nclass members were “led to believe—via the Settlement\nAgreement—that their attorneys would be reasonably\ncompensated by Defendants,” 10 this proposition is belied by\nthe Settlement’s Long Form Notice, which read,\n\n Class Counsel will represent you at no charge\n to you, and any fees Class Counsel are paid\n will not affect your compensation under this\n Class Action Settlement. If you want to be\n represented by your own lawyer, you may\n hire one at your own expense. It is possible\n that you will receive less money overall if\n you choose to hire your own lawyer to litigate\n\n 10\n This assertion is apparently based on language in the Long Form\nNotice that indicated that “Volkswagen will pay attorneys’ fees and costs\nin addition to the benefits it is providing to the class members in this\nSettlement.” However, on the previous page, the Notice specified that\nonly Class Counsel would receive those fees.\n\f62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\n against Volkswagen rather than receive\n compensation from this Class Action\n Settlement.\n\n(emphasis added). 11 Accordingly, there was no agreement\nbetween the parties, either explicit or implicit, that\nVolkswagen would compensate Appellants for their efforts.\n\n iii. Quantum Meruit and Unjust Enrichment\n\n Lastly, Nagel Appellants suggest that the district court\nerred when it failed to consider the equitable principles of\nquantum meruit and unjust enrichment. However, although\na court’s power to award attorneys’ fees might be derived\nfrom equity, the existence of this power alone does not\nvitiate the long-recognized requirement that the work of a\nlawyer in a case like this must benefit the class. If, as the\ndistrict court concluded, Appellants did not provide a\nsubstantial benefit, then neither the class members nor Class\nCounsel would have been unjustly enriched at Appellants’\nexpense. Nagel Appellants’ invocation of quantum meruit\ntherefore only begs the original question of whether non-\nClass Counsel’s efforts benefited the class. As they did not,\nno unjust enrichment occurred.\n\n\n\n\n 11\n Nagel Appellants note that this language appeared under the\nheading “Do I need to hire my own attorney . . . ?” and therefore,\n“[g]iven that Independent Counsel had already been retained prior to the\nNotice, Class Members would assume the provision, expressed in a\nfuture tense, did not apply.” But however misleading the Long Form\nNotice might have been on this point, this ambiguity certainly did not\nconstitute an agreement that Volkswagen would pay non-Class\nCounsel’s fees.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63\n\nIII. The Lien Order\n\n Feinman, in his separate brief, ostensibly appeals, like\nthe other Appellants, from the Fee Order. He indicates that\n“[t]his is an appeal from the United States District Court for\nthe Northern District of California in which the trial court\ndetermined Volkswagen is not required to pay Non-Class\nCounsel attorney fees and costs.” However, the main focus\nof his appeal, as evidenced by his preliminary statement, is\nthe “injunction issued by the District Court for the Northern\nDistrict of California in the Volkswagen Clean Diesel\nlitigation enjoining efforts to assert attorney fee lien claims\nunder State law”—the Lien Order. It is that injunction, and\nnot the Fee Order, that is the basis of Feinman’s various\narguments: that the injunction violated the Anti-Injunction\nAct; that the district court did not have subject matter\njurisdiction to issue the injunction as to his Virginia lien; that\nthe injunction had the effect of imposing the cost of\nremoving polluting vehicles from the roadway on him; that\nthe injunction was premised on an unfounded legal premise;\nthat the injunction violated his due process rights; and that\nthe injunction violated the Fifth Amendment. Indeed,\nFeinman’s conclusion and request for relief references only\nthe Lien Order and not the Fee Order.\n\n The district court already vacated the Lien Order and its\ninjunction, and so they are no longer in effect. Therefore, all\nof the issues contained in Feinman’s brief were rendered\nmoot, and we need not consider them. See Berkeley Cmty.\nHealth Project v. City of Berkeley, 119 F.3d 794, 795 (9th\nCir. 1997) (“Because the district court has vacated its\npreliminary injunction, this appeal is dismissed as moot.”).\nBoth Feinman’s opening brief and his reply brief\ndemonstrate that he is, in effect, asking us for an advisory\nopinion: “What Feinman wants from this appeal is a ruling\n\f64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION\n\nthat nothing the Northern District of California Court ruled\ncan prohibit Feinman from seeking to enforce his attorney\nfee lien rights against Defendant Volkswagen. . . . Feinman\nhas no interest in violating a Federal Court injunction and\nmerely seeks to assert his claim in Virginia State Courts free\nfrom jeopardy.” He even concedes that “[i]f the concession\nof Volkswagen and the Plaintiff-Appellees that the issue is\nmoot makes it so Feinman can have the relief requested,\nthere is no need to go further.” There is no doubt that the\nissues he raised are indeed moot. Whether he “can have the\nrelief requested”—which is to say, a lien against\nVolkswagen pursuant to Virginia law—is not an issue\nproperly before us. 12\n\n CONCLUSION\n\n We are sympathetic to Appellants, and have no doubt\nthat many of them dutifully and conscientiously represented\n\n 12\n We might infer from Feinman’s opening brief that his\njurisdictional challenge applies to the Fee Order as well as the vacated\ninjunction. Such an argument would have no merit. We have held that\n“[a] transferee judge exercises all the powers of a district judge in the\ntransferee district under the Federal Rules of Civil Procedure,” which\nincludes “authority to decide all pretrial motions, including dispositive\nmotions such as motions to dismiss, motions for summary judgment,\nmotions for involuntary dismissal under Rule 41(b), motions to strike an\naffirmative defense, and motions for judgment pursuant to a settlement.”\nIn re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,\n1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C.\nv. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that\na federal court properly may exercise ancillary jurisdiction ‘over attorney\nfee disputes collateral to the underlying litigation.’” (quoting Fed. Sav.\n& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).\nTherefore, the district court had jurisdiction over the attorneys’ fees\nmotions.\n\f IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65\n\ntheir clients. This is not necessarily a case where latecomers\nattempt to divide spoils that they did not procure. 13 But\nAppellants’ efforts do not entitle them to compensation from\nthe MDL, when the record indicates that they did not\nperform work that benefited the class, and that they\nneglected to follow the protocol mandated by the district\ncourt. We commend the district court’s efforts to\nsuccessfully manage a massive and potentially ungainly\nMDL, and conclude that the court did not abuse its discretion\nwhen it determined that Appellants were not entitled to\ncompensation.\n\n Accordingly, we AFFIRM the district court’s denial of\nAppellants’ motions for attorneys’ fees.\n\n\n\n\n 13\n See generally Florence White Williams, The Little Red Hen\n(1918).\n[END_CASE]", "role": "user" } ]
9,022,983	IN RE VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Bishop, Heenan & Davies, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Law Office of Maloney & Campolo, LLP, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, James Ben Feinman Ronald Clark Fleshman, Jr., Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Lemberg Law, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Nagel Rice, LLP, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Strong Law Offices, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Hyde & Swigart, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, The Driscoll Firm, P.C., Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Viles and Beckman, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Holton Law Firm, PLLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Makarem & Associates, APLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Law Office of Samuel W. Bearman, LLC Sellers Skievaski Kuder LLP Artice McGraw, PA, Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Harrell & Nowak, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Egolf Ferlic Harwood, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Ryder Law Firm, P.C., Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Paul S. Rothstein, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Hawks Quindel, S.C. Habush Habush & Rottier, S.C., Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC	Hill v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig.)	2019-01-22	No. 17-16020; No. 17-16065; No. 17-16067; No. 17-16068; No. 17-16082; No. 17-16083; No. 17-16089; No. 17-16092; No. 17-16099; No. 17-16123; No. 17-16124; No. 17-16130; No. 17-16132; No. 17-16156; No. 17-16158; No. 17-16172; No. 17-16180	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016220/", "author_raw": ""}]}	NO_JUDGES			0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022983/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: IN RE VOLKSWAGEN \"CLEAN DIESEL\" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Bishop, Heenan & Davies, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Law Office of Maloney & Campolo, LLP, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, James Ben Feinman Ronald Clark Fleshman, Jr., Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Lemberg Law, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Nagel Rice, LLP, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Strong Law Offices, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Hyde & Swigart, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, The Driscoll Firm, P.C., Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Viles and Beckman, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Holton Law Firm, PLLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Makarem & Associates, APLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Law Office of Samuel W. Bearman, LLC Sellers Skievaski Kuder LLP Artice McGraw, PA, Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Harrell & Nowak, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Egolf Ferlic Harwood, LLC, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Ryder Law Firm, P.C., Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Paul S. Rothstein, Objector-Appellant v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC, In re Volkswagen \"Clean Diesel\" Marketing, Sales Practices, and Products Liability Litigation, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo Winternitz Marcus Alexander Doege Leslie Maclise-Kane Timothy Watson Farrah P. Bell Jerry Lawhon Michael R. Cruise John C. Dufurrena Scott Bahr Karl Fry Cesar Olmos Britney Lynne Schnathorst Carla Berg Aaron Joy Eric Davidson White Floyd Beck Warren Thomas J. Buchberger Russell Evans Carmel Rubin Daniel Sullivan Matthew Cure Denise De Fiesta Mark Rovner Wolfgang Steudel Anne Mahle David McCarthy Scott Moen Ryan Joseph Schuette Megan Walawender Joseph Morrey Michael Lorenz Nancy L. Stirek Rebecca Perlmutter Addison Minott Richard Grogan Alan Bandics Melani Buchanan Farmer Kevin Bedard Elizabeth Bedard Cynthia R. Kirtland Michael Charles Krimmelbein Will Harlan Heather Greenfield Thomas W. Ayala Herbert Yussim Nicholas Bond Brian J. Bialecki Katherine Mehls Whitney Powers Roy McNeal Brett Alters Kelly R. King Rachel Otto William Andrew Wilson David Ebenstein Mark Schumacher Chad Dial Joseph Herr Kurt Mallery Marion B. Moore Laura Swenson Brian Nicholas Mills, Hawks Quindel, S.C. Habush Habush & Rottier, S.C., Objectors-Appellants v. Volkswagen Group of America, Inc. Volkswagen, AG Audi, AG Audi of America, LLC Porsche Cars North America, Inc. Robert Bosch GMBH Robert Bosch, LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,583,855		Harmoni Int'l Spice, Inc. v. Robert Hume	2019-01-23	17-55926	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Paul J. Watford and John B. Owens, Circuit Judges, and Jennifer G. Zipps, * District Judge.", "parties": "", "opinions": [{"author": "WATFORD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nHARMONI INTERNATIONAL SPICE, No. 17-55926\nINC., a California corporation;\nZHENGZHOU HARMONI SPICE CO., D.C. No.\nLTD., a corporation, 2:16-cv-00614-\n Plaintiffs-Appellants, BRO-AS\n\n v.\n OPINION\nROBERT T. HUME; JOEY C.\nMONTOYA; STANLEY CRAWFORD;\nHUAMEI CONSULTING CO., INC., a\ncorporation,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Beverly Reid O’Connell, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Pasadena, California\n\n Filed January 23, 2019\n\f2 HARMONI INT’L SPICE V. HUME\n\n Before: Paul J. Watford and John B. Owens, Circuit\n Judges, and Jennifer G. Zipps, * District Judge.\n\n Opinion by Judge Watford\n\n\n SUMMARY *\n\n\n Racketeer Influenced and Corrupt Organizations Act\n\n The panel reversed the district court’s dismissal of a\nRICO suit for failure adequately to allege proximate cause.\n\n Plaintiffs alleged that, through two unlawful schemes,\nrival importers of garlic from China conspired to eliminate\nor reduce the competitive advantage plaintiffs enjoyed\nbecause plaintiffs did not have to pay anti-dumping duties.\nIn the first alleged scheme, Chinese competitors submitted\nfraudulent documents to U.S. customs officials in order to\nevade applicable anti-dumping duties and then sold garlic in\nthe United States at less than fair value. In the second\nalleged scheme, Chinese competitors recruited domestic\ngarlic growers to file sham administrative review requests\nwith the U.S. Department of Commerce to determine\nwhether plaintiffs were being subjected to appropriate anti-\ndumping duties.\n\n\n\n \n The Honorable Jennifer G. Zipps, United States District Judge for\nthe District of Arizona, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f HARMONI INT’L SPICE V. HUME 3\n\n To prevail on a RICO claim, a plaintiff must establish\nproximate cause by showing a direct relation between the\ninjury asserted and the injurious conduct alleged. The panel\nheld that the plaintiffs did not adequately allege proximate\ncause with respect to the first scheme because the\nrelationship between defendants’ alleged conduct and\nplaintiffs’ alleged injury was too attenuated. As to the\nsecond scheme, plaintiffs adequately alleged proximate\ncause with respect to damages for expenses incurred in\nresponding to the Department of Commerce’s administrative\nreview. With respect to damages for lost sales and harm to\nbusiness reputation, the complaint did not adequately allege\nproximate cause, but the district court should have granted\nleave to amend. The district court also should have granted\nleave to amend as to a defendant dismissed for failure to\nallege predicate acts constituting a pattern of racketeering\nactivity. The panel remanded the case to the district court.\n\n\n COUNSEL\n\nGeorge E. Mastoris (argued), Seth C. Farber, Jeffrey L.\nKessler, and Paul Victor, Winston & Strawn LLP, New\nYork, New York; John E. Schreiber, Winston & Strawn\nLLP, Los Angeles, California; Jeff Wilkerson, Winston &\nStrawn LLP, Charlotte, North Carolina; for Plaintiffs-\nAppellants.\n\nAnthony L. Lanza (argued) and Brodie H. Smith, Lanza &\nSmith, Irvine, California, for Defendants-Appellees.\n\f4 HARMONI INT’L SPICE V. HUME\n\n OPINION\n\nWATFORD, Circuit Judge:\n\n The main issue in this appeal is whether the plaintiffs\nadequately alleged proximate cause under the Racketeer\nInfluenced and Corrupt Organizations Act (RICO),\n18 U.S.C. §§ 1961–68. We conclude that the plaintiffs have\nadequately alleged proximate cause with respect to one\ncategory of damages, and that they should have been granted\nleave to amend their complaint with respect to at least a\nsecond category.\n\n The plaintiffs are Harmoni International Spice, Inc., and\nZhengzhou Harmoni Spice Co.; for ease of reference we will\nrefer to them both as Harmoni. According to the complaint’s\nallegations, which we accept as true at this stage of the\nlitigation, Harmoni produces fresh garlic in China and\nimports it into the United States. Harmoni is the only\nimporter of Chinese garlic with a “zero-duty rate,” meaning\nit does not have to pay the hefty anti-dumping duties\nimposed on other importers of Chinese garlic. Harmoni\nalleges that some of these importers, jealous of the\ncompetitive advantage Harmoni enjoys, conspired to\neliminate or reduce that advantage through two separate\nunlawful schemes.\n\n The first scheme involved efforts by Harmoni’s Chinese\ncompetitors to funnel imported garlic into the United States\nby submitting fraudulent shipping documents to U.S.\ncustoms officials in order to evade applicable anti-dumping\nduties. The defendants then sold that garlic in the United\nStates at less than fair value, resulting in increased sales for\nthem and a corresponding decrease in Harmoni’s sales.\n\f HARMONI INT’L SPICE V. HUME 5\n\n The second scheme is a bit more elaborate. Under the\nTariff Act of 1930, domestic producers may in certain\ncircumstances request an administrative review to determine\nwhether a company like Harmoni is being subjected to\nappropriate anti-dumping duties. 19 U.S.C. § 1673a(b)(1);\n19 C.F.R. § 351.213(b)(1). When such a request is filed, the\nDepartment of Commerce is generally required to\ncommence an administrative review. 19 U.S.C.\n§§ 1673a(b)(1), 1675(a)(1). Harmoni alleges that some of\nits Chinese competitors recruited two small domestic garlic\ngrowers to file sham administrative review requests with the\nDepartment of Commerce. According to the complaint, one\nof the purposes of these sham requests was to force Harmoni\nto incur significant expenses defending itself during the\ncourse of the administrative review process. In addition,\nHarmoni alleges that its competitors used the administrative\nreview process as a public forum for falsely accusing\nHarmoni of illegal and unethical business practices, such as\nusing prison labor to produce its garlic. Harmoni asserts\nthat, as a direct result of these false accusations, it suffered\nlost sales and harm to its business reputation.\n\n Harmoni sued nearly two dozen individuals and\ncompanies for their alleged participation in one or both of\nthe schemes described above. A number of the defendants\nare domiciled in China and have not yet been served. The\ndefendants who have been served moved to dismiss\nHarmoni’s complaint under Federal Rule of Civil Procedure\n12(b)(6). Following extensive motions practice, the district\ncourt granted the defendants’ motions in full, resulting in the\ndismissal of Harmoni’s claims against those defendants with\nprejudice. The court entered final judgment under Rule\n54(b) so that Harmoni could take an immediate appeal.\n\f6 HARMONI INT’L SPICE V. HUME\n\n On appeal, Harmoni challenges only the dismissal of its\nRICO claim as to four of the defendants: Robert Hume, Joey\nMontoya, Stanley Crawford, and Huamei Consulting Co.,\nInc. The district court dismissed the RICO claim against\nHume, Montoya, and Crawford on the ground that Harmoni\nhad not adequately alleged proximate cause; the court\ndismissed the claim against Huamei Consulting on the\nground that Harmoni had not adequately alleged its\ninvolvement in a pattern of racketeering activity. The parties\ndevote the bulk of their attention to the court’s proximate\ncause ruling, and we will do the same here.\n\n The RICO statute provides a cause of action to any\nperson “injured in his business or property by reason of” a\nviolation of the statute. 18 U.S.C. § 1964(c). To prevail, a\nplaintiff must prove that the defendant’s unlawful conduct\nwas not only a “but for” cause of his injury but also the\n“proximate cause” of the injury, as that concept has been\nunderstood at common law. Holmes v. Securities Investor\nProtection Corp., 503 U.S. 258, 268 (1992). Proximate\ncause requires “some direct relation between the injury\nasserted and the injurious conduct alleged.” Id.\n\n Most of the district court’s proximate cause analysis\nfocused on the first of the two illegal schemes, involving the\nfunneling of imported garlic into the United States through\nfraudulent means. We agree with the district court that\nHarmoni’s proximate cause allegations are fatally deficient\nwith respect to this scheme. Harmoni seeks to recover\ndamages for its loss of market share, on the theory that the\ndefendants’ misrepresentations to customs officials allowed\nthem to evade anti-dumping duties and to sell their imported\ngarlic at less than fair value, which in turn led to an increase\nin their sales and a corresponding decrease in Harmoni’s\nsales. The relationship between the defendants’ unlawful\n\f HARMONI INT’L SPICE V. HUME 7\n\nconduct and Harmoni’s alleged injury is too attenuated to\nsupport a finding of proximate cause for the same reasons\ngiven in Anza v. Ideal Steel Supply Corp., 547 U.S. 451,\n457–60 (2006). The district court properly dismissed\nHarmoni’s RICO claim to the extent it is predicated on the\nalleged funneling scheme.\n\n The defendants involved in this appeal—Hume,\nMontoya, Crawford, and Huamei Consulting—were\ninvolved in the second scheme Harmoni has alleged, not the\nfunneling scheme. Crawford is one of the small domestic\ngarlic growers who allegedly filed a sham administrative\nreview request; Hume and Montoya are the lawyers who\nrepresented Crawford in connection with that filing; and\nHuamei Consulting acted as an intermediary between Hume\nand Harmoni’s Chinese competitors. The district court did\nnot separately analyze whether the complaint adequately\nalleges proximate cause with respect to this second scheme.\nIn our view, the failure to do so resulted in reversible error.\n\n Harmoni seeks to recover damages that fall into three\ncategories: (1) expenses incurred in responding to the\nDepartment of Commerce’s administrative review; (2) lost\nsales; and (3) harm to its business reputation. The proximate\ncause analysis is somewhat different as to each category, so\nwe will address each of them in turn.\n\n Harmoni has adequately alleged proximate cause with\nrespect to the first category of damages. As to the expenses\nit incurred during the administrative review process, there is\na “direct relation between the injury asserted and the\ninjurious conduct alleged.” Holmes, 503 U.S. at 268. The\ninjurious conduct at issue is the defendants’ predicate acts of\nmail and wire fraud—i.e., the sham filings requesting an\nadministrative review of Harmoni’s zero-duty rate. Harmoni\nalleges that the defendants knew their sham filings would\n\f8 HARMONI INT’L SPICE V. HUME\n\ntrigger an administrative review because the Department of\nCommerce is required by law to initiate such a review\nwhenever it receives a request from a party with standing.\nAs a result, this is not a case in which the Department of\nCommerce acted independently to initiate an investigation,\nwhich would perhaps have been an intervening act that broke\nthe causal chain. According to the complaint, the defendants\nalso knew that Harmoni would be forced to incur significant\nexpenses responding to the administrative review because\nrefusing to respond was not a viable option. Refusing to\nrespond to the Department of Commerce’s inquiries would\nhave resulted in the loss of Harmoni’s zero-duty rate, thereby\nsubjecting its imported garlic to the same prohibitively high\nanti-dumping duties that Harmoni’s rivals must pay. These\nallegations establish a direct causal link between the\ndefendants’ allegedly wrongful conduct (filing sham\nrequests for an administrative review) and the injury\nHarmoni asserts (being forced to incur expenses responding\nto the review triggered by the sham filings).\n\n The defendants’ only rejoinder is to assert that the\nDepartment of Commerce, rather than Harmoni, was the\ndirect victim of the alleged sham-filing scheme. The\ndefendants stress that the sham filings were sent to the\nDepartment of Commerce, and that the Department was the\nentity required to act on them by initiating an investigation.\nThe defendants assume there can be only one direct victim\nentitled to recover damages under RICO, but that is not\nalways the case. Even if the Department of Commerce could\nhave asserted its own RICO claim to recover the costs it\nincurred in conducting the administrative review, that would\nnot preclude Harmoni from recovering the costs it incurred\nas a direct result of the defendants’ unlawful conduct.\n\f HARMONI INT’L SPICE V. HUME 9\n\n The three factors we typically assess when considering\nwhether proximate cause has been shown weigh in\nHarmoni’s favor. See Mendoza v. Zirkle Fruit Co., 301 F.3d\n1163, 1169 (9th Cir. 2002). First, no more direct victim of\nthe defendants’ sham-filing scheme is better positioned to\nsue. The Department of Commerce may itself be a direct\nvictim, but it would be unlikely to vindicate the law by\nbringing its own claim, and indeed it has not done so.\nSecond, no difficulty will arise ascertaining what portion of\nthe claimed damages is attributable to the defendants’\nunlawful conduct. If Harmoni’s allegations are true, all of\nthe costs it incurred responding to the administrative review\nare attributable to the defendants’ unlawful conduct, for\nwithout the sham filings no administrative review would\nhave occurred at all. And finally, there is no risk of\nduplicative recoveries because no other plaintiff could seek\nto recover any of the costs Harmoni incurred responding to\nthe administrative review.\n\n With respect to the second category of damages—lost\nsales attributable to the defendants’ false accusations about\nHarmoni’s business practices—Harmoni may be able to\nallege proximate cause as well. The Supreme Court’s\ndecision in Bridge v. Phoenix Bond & Indemnity Co.,\n553 U.S. 639 (2008), is instructive on this point. There the\nCourt confronted an alleged RICO scheme in which the\ndefendants committed acts of mail fraud by submitting false\ncertifications to a county government in connection with the\ncounty’s sale at auction of valuable tax liens. As a direct\nresult of the false certifications, the defendants acquired tax\nliens that the plaintiffs—rival bidders at the auctions—\nwould otherwise have acquired for themselves. Id. at 643–\n45. The Court concluded that the plaintiffs had adequately\nalleged proximate cause, even though the defendants made\nthe false statements to the county, and the county rather than\n\f10 HARMONI INT’L SPICE V. HUME\n\nthe plaintiffs relied on those statements in awarding liens to\nthe winning bidders. Id. at 655–58. In explaining why a\nplaintiff can be injured “by reason of” acts of mail fraud even\nif the plaintiff did not rely on the defendant’s\nmisrepresentations, the Court offered the following\nhypothetical:\n\n [S]uppose an enterprise that wants to get rid\n of rival businesses mails misrepresentations\n about them to their customers and suppliers,\n but not to the rivals themselves. If the rival\n businesses lose money as a result of the\n misrepresentations, it would certainly seem\n that they were injured in their business “by\n reason of” a pattern of mail fraud, even\n though they never received, and therefore\n never relied on, the fraudulent mailings.\n\nId. at 649–50.\n\n That hypothetical describes Harmoni’s allegations in this\ncase, with one immaterial difference. Harmoni alleges that\nthe defendants committed mail and wire fraud by making\nmisrepresentations in public filings submitted to the\nDepartment of Commerce, rather than sending those\ncommunications directly to Harmoni’s customers. Nothing\nturns on that fact, however, because Harmoni alleges both\nthat the defendants knew their public filings would be\nreviewed by Harmoni’s customers, and that the defendants\nmade the false statements with the specific intent of harming\nHarmoni’s business reputation in the eyes of its customers.\nSee Lexmark International, Inc. v. Static Control\nComponents, Inc., 134 S. Ct. 1377, 1393 (2014) (“When a\ndefendant harms a plaintiff’s reputation by casting\naspersions on its business, the plaintiff’s injury flows\n\f HARMONI INT’L SPICE V. HUME 11\n\ndirectly from the audience’s belief in the disparaging\nstatements.”). If Harmoni can prove that it lost sales as a\ndirect result of the defendants’ predicate acts of mail and\nwire fraud, the proximate cause element of its RICO claim\nwill be satisfied. See, e.g., Restatement (Second) of Torts\n§ 633 (1977).\n\n This same reasoning could potentially apply to the third\ncategory of damages—harm to Harmoni’s business\nreputation—although that issue will need to be litigated on\nremand. The parties dispute whether damage to business\nreputation constitutes a compensable injury under RICO.\nHarmoni argues that harm to business reputation constitutes\nan injury to a “specific business or property interest” under\nCalifornia law and is therefore covered by RICO. See Diaz\nv. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc) (per\ncuriam). The defendants argue that RICO precludes\nrecovery for harm to intangible property interests and that\nthe reputation of a business constitutes such an interest. See\nOscar v. University Students Co-operative Association,\n965 F.2d 783, 785–86 (9th Cir. 1992) (en banc). Because\nthe district court has not yet addressed this issue and the\nparties have not adequately briefed it on appeal, we decline\nto resolve it here. The issue remains open for the district\ncourt to take up on remand. 1\n\n Nevertheless, as it stands now, Harmoni’s complaint\ndoes not plausibly allege proximate cause with respect to\ndamages for lost sales or harm to its business reputation\n\n 1\n We also decline to address in the first instance the defendants’\nargument that Harmoni has not alleged a “domestic injury” under RJR\nNabisco, Inc. v. European Community, 136 S. Ct. 2090, 2111 (2016).\nThe defendants did not raise that argument below and the district court\ntherefore had no opportunity to address it.\n\f12 HARMONI INT’L SPICE V. HUME\n\n(assuming such harm is compensable under RICO).\nHarmoni’s complaint merely asserts the bare conclusion that\nit suffered these damages as a result of the defendants’\npredicate acts of mail and wire fraud. To survive a motion\nto dismiss, Harmoni’s complaint must allege “factual\ncontent that allows the court to draw the reasonable\ninference” that its lost sales and reputational injury were the\ndirect result of the defendants’ wrongful conduct. Ashcroft\nv. Iqbal, 556 U.S. 662, 678 (2009). Although the complaint\ndoes not meet that standard now, Harmoni could\nconceivably amend the complaint to cure this deficiency by\nalleging, for example, the circumstances under which its\ncustomers learned of the defendants’ false accusations and,\nin reliance on that false information, canceled purchases they\nwere otherwise planning to make. Because the complaint\ncould potentially be saved by amendment, the district court\nshould have granted Harmoni leave to amend. See Eminence\nCapital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.\n2003) (per curiam).\n\n Harmoni argues that it also should have been granted\nleave to amend its allegations against Huamei Consulting.\nThe district court dismissed the RICO claim against Huamei\nConsulting for failure to allege at least two predicate acts\nconstituting a pattern of racketeering activity. Harmoni did\nnot receive notice of this deficiency until the court’s\ndismissal order, and the order did not explain why\namendment would be futile. As a result, Harmoni should\nhave been granted leave to amend its allegations against\nHuamei Consulting as well. See id. at 1053.\n\n REVERSED and REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361108/", "author_raw": "WATFORD, Circuit Judge:"}]}	PAUL J WATFORD	JOHN B OWENS	JENNIFER G ZIPPS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4583855/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Harmoni Int'l Spice, Inc. v. Robert Hume\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nHARMONI INTERNATIONAL SPICE, No. 17-55926\nINC., a California corporation;\nZHENGZHOU HARMONI SPICE CO., D.C. No.\nLTD., a corporation, 2:16-cv-00614-\n Plaintiffs-Appellants, BRO-AS\n\n v.\n OPINION\nROBERT T. HUME; JOEY C.\nMONTOYA; STANLEY CRAWFORD;\nHUAMEI CONSULTING CO., INC., a\ncorporation,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Beverly Reid O’Connell, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Pasadena, California\n\n Filed January 23, 2019\n\f2 HARMONI INT’L SPICE V. HUME\n\n Before: Paul J. Watford and John B. Owens, Circuit\n Judges, and Jennifer G. Zipps, * District Judge.\n\n Opinion by Judge Watford\n\n\n SUMMARY *\n\n\n Racketeer Influenced and Corrupt Organizations Act\n\n The panel reversed the district court’s dismissal of a\nRICO suit for failure adequately to allege proximate cause.\n\n Plaintiffs alleged that, through two unlawful schemes,\nrival importers of garlic from China conspired to eliminate\nor reduce the competitive advantage plaintiffs enjoyed\nbecause plaintiffs did not have to pay anti-dumping duties.\nIn the first alleged scheme, Chinese competitors submitted\nfraudulent documents to U.S. customs officials in order to\nevade applicable anti-dumping duties and then sold garlic in\nthe United States at less than fair value. In the second\nalleged scheme, Chinese competitors recruited domestic\ngarlic growers to file sham administrative review requests\nwith the U.S. Department of Commerce to determine\nwhether plaintiffs were being subjected to appropriate anti-\ndumping duties.\n\n\n\n \n The Honorable Jennifer G. Zipps, United States District Judge for\nthe District of Arizona, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f HARMONI INT’L SPICE V. HUME 3\n\n To prevail on a RICO claim, a plaintiff must establish\nproximate cause by showing a direct relation between the\ninjury asserted and the injurious conduct alleged. The panel\nheld that the plaintiffs did not adequately allege proximate\ncause with respect to the first scheme because the\nrelationship between defendants’ alleged conduct and\nplaintiffs’ alleged injury was too attenuated. As to the\nsecond scheme, plaintiffs adequately alleged proximate\ncause with respect to damages for expenses incurred in\nresponding to the Department of Commerce’s administrative\nreview. With respect to damages for lost sales and harm to\nbusiness reputation, the complaint did not adequately allege\nproximate cause, but the district court should have granted\nleave to amend. The district court also should have granted\nleave to amend as to a defendant dismissed for failure to\nallege predicate acts constituting a pattern of racketeering\nactivity. The panel remanded the case to the district court.\n\n\n COUNSEL\n\nGeorge E. Mastoris (argued), Seth C. Farber, Jeffrey L.\nKessler, and Paul Victor, Winston & Strawn LLP, New\nYork, New York; John E. Schreiber, Winston & Strawn\nLLP, Los Angeles, California; Jeff Wilkerson, Winston &\nStrawn LLP, Charlotte, North Carolina; for Plaintiffs-\nAppellants.\n\nAnthony L. Lanza (argued) and Brodie H. Smith, Lanza &\nSmith, Irvine, California, for Defendants-Appellees.\n\f4 HARMONI INT’L SPICE V. HUME\n\n OPINION\n\nWATFORD, Circuit Judge:\n\n The main issue in this appeal is whether the plaintiffs\nadequately alleged proximate cause under the Racketeer\nInfluenced and Corrupt Organizations Act (RICO),\n18 U.S.C. §§ 1961–68. We conclude that the plaintiffs have\nadequately alleged proximate cause with respect to one\ncategory of damages, and that they should have been granted\nleave to amend their complaint with respect to at least a\nsecond category.\n\n The plaintiffs are Harmoni International Spice, Inc., and\nZhengzhou Harmoni Spice Co.; for ease of reference we will\nrefer to them both as Harmoni. According to the complaint’s\nallegations, which we accept as true at this stage of the\nlitigation, Harmoni produces fresh garlic in China and\nimports it into the United States. Harmoni is the only\nimporter of Chinese garlic with a “zero-duty rate,” meaning\nit does not have to pay the hefty anti-dumping duties\nimposed on other importers of Chinese garlic. Harmoni\nalleges that some of these importers, jealous of the\ncompetitive advantage Harmoni enjoys, conspired to\neliminate or reduce that advantage through two separate\nunlawful schemes.\n\n The first scheme involved efforts by Harmoni’s Chinese\ncompetitors to funnel imported garlic into the United States\nby submitting fraudulent shipping documents to U.S.\ncustoms officials in order to evade applicable anti-dumping\nduties. The defendants then sold that garlic in the United\nStates at less than fair value, resulting in increased sales for\nthem and a corresponding decrease in Harmoni’s sales.\n\f HARMONI INT’L SPICE V. HUME 5\n\n The second scheme is a bit more elaborate. Under the\nTariff Act of 1930, domestic producers may in certain\ncircumstances request an administrative review to determine\nwhether a company like Harmoni is being subjected to\nappropriate anti-dumping duties. 19 U.S.C. § 1673a(b)(1);\n19 C.F.R. § 351.213(b)(1). When such a request is filed, the\nDepartment of Commerce is generally required to\ncommence an administrative review. 19 U.S.C.\n§§ 1673a(b)(1), 1675(a)(1). Harmoni alleges that some of\nits Chinese competitors recruited two small domestic garlic\ngrowers to file sham administrative review requests with the\nDepartment of Commerce. According to the complaint, one\nof the purposes of these sham requests was to force Harmoni\nto incur significant expenses defending itself during the\ncourse of the administrative review process. In addition,\nHarmoni alleges that its competitors used the administrative\nreview process as a public forum for falsely accusing\nHarmoni of illegal and unethical business practices, such as\nusing prison labor to produce its garlic. Harmoni asserts\nthat, as a direct result of these false accusations, it suffered\nlost sales and harm to its business reputation.\n\n Harmoni sued nearly two dozen individuals and\ncompanies for their alleged participation in one or both of\nthe schemes described above. A number of the defendants\nare domiciled in China and have not yet been served. The\ndefendants who have been served moved to dismiss\nHarmoni’s complaint under Federal Rule of Civil Procedure\n12(b)(6). Following extensive motions practice, the district\ncourt granted the defendants’ motions in full, resulting in the\ndismissal of Harmoni’s claims against those defendants with\nprejudice. The court entered final judgment under Rule\n54(b) so that Harmoni could take an immediate appeal.\n\f6 HARMONI INT’L SPICE V. HUME\n\n On appeal, Harmoni challenges only the dismissal of its\nRICO claim as to four of the defendants: Robert Hume, Joey\nMontoya, Stanley Crawford, and Huamei Consulting Co.,\nInc. The district court dismissed the RICO claim against\nHume, Montoya, and Crawford on the ground that Harmoni\nhad not adequately alleged proximate cause; the court\ndismissed the claim against Huamei Consulting on the\nground that Harmoni had not adequately alleged its\ninvolvement in a pattern of racketeering activity. The parties\ndevote the bulk of their attention to the court’s proximate\ncause ruling, and we will do the same here.\n\n The RICO statute provides a cause of action to any\nperson “injured in his business or property by reason of” a\nviolation of the statute. 18 U.S.C. § 1964(c). To prevail, a\nplaintiff must prove that the defendant’s unlawful conduct\nwas not only a “but for” cause of his injury but also the\n“proximate cause” of the injury, as that concept has been\nunderstood at common law. Holmes v. Securities Investor\nProtection Corp., 503 U.S. 258, 268 (1992). Proximate\ncause requires “some direct relation between the injury\nasserted and the injurious conduct alleged.” Id.\n\n Most of the district court’s proximate cause analysis\nfocused on the first of the two illegal schemes, involving the\nfunneling of imported garlic into the United States through\nfraudulent means. We agree with the district court that\nHarmoni’s proximate cause allegations are fatally deficient\nwith respect to this scheme. Harmoni seeks to recover\ndamages for its loss of market share, on the theory that the\ndefendants’ misrepresentations to customs officials allowed\nthem to evade anti-dumping duties and to sell their imported\ngarlic at less than fair value, which in turn led to an increase\nin their sales and a corresponding decrease in Harmoni’s\nsales. The relationship between the defendants’ unlawful\n\f HARMONI INT’L SPICE V. HUME 7\n\nconduct and Harmoni’s alleged injury is too attenuated to\nsupport a finding of proximate cause for the same reasons\ngiven in Anza v. Ideal Steel Supply Corp., 547 U.S. 451,\n457–60 (2006). The district court properly dismissed\nHarmoni’s RICO claim to the extent it is predicated on the\nalleged funneling scheme.\n\n The defendants involved in this appeal—Hume,\nMontoya, Crawford, and Huamei Consulting—were\ninvolved in the second scheme Harmoni has alleged, not the\nfunneling scheme. Crawford is one of the small domestic\ngarlic growers who allegedly filed a sham administrative\nreview request; Hume and Montoya are the lawyers who\nrepresented Crawford in connection with that filing; and\nHuamei Consulting acted as an intermediary between Hume\nand Harmoni’s Chinese competitors. The district court did\nnot separately analyze whether the complaint adequately\nalleges proximate cause with respect to this second scheme.\nIn our view, the failure to do so resulted in reversible error.\n\n Harmoni seeks to recover damages that fall into three\ncategories: (1) expenses incurred in responding to the\nDepartment of Commerce’s administrative review; (2) lost\nsales; and (3) harm to its business reputation. The proximate\ncause analysis is somewhat different as to each category, so\nwe will address each of them in turn.\n\n Harmoni has adequately alleged proximate cause with\nrespect to the first category of damages. As to the expenses\nit incurred during the administrative review process, there is\na “direct relation between the injury asserted and the\ninjurious conduct alleged.” Holmes, 503 U.S. at 268. The\ninjurious conduct at issue is the defendants’ predicate acts of\nmail and wire fraud—i.e., the sham filings requesting an\nadministrative review of Harmoni’s zero-duty rate. Harmoni\nalleges that the defendants knew their sham filings would\n\f8 HARMONI INT’L SPICE V. HUME\n\ntrigger an administrative review because the Department of\nCommerce is required by law to initiate such a review\nwhenever it receives a request from a party with standing.\nAs a result, this is not a case in which the Department of\nCommerce acted independently to initiate an investigation,\nwhich would perhaps have been an intervening act that broke\nthe causal chain. According to the complaint, the defendants\nalso knew that Harmoni would be forced to incur significant\nexpenses responding to the administrative review because\nrefusing to respond was not a viable option. Refusing to\nrespond to the Department of Commerce’s inquiries would\nhave resulted in the loss of Harmoni’s zero-duty rate, thereby\nsubjecting its imported garlic to the same prohibitively high\nanti-dumping duties that Harmoni’s rivals must pay. These\nallegations establish a direct causal link between the\ndefendants’ allegedly wrongful conduct (filing sham\nrequests for an administrative review) and the injury\nHarmoni asserts (being forced to incur expenses responding\nto the review triggered by the sham filings).\n\n The defendants’ only rejoinder is to assert that the\nDepartment of Commerce, rather than Harmoni, was the\ndirect victim of the alleged sham-filing scheme. The\ndefendants stress that the sham filings were sent to the\nDepartment of Commerce, and that the Department was the\nentity required to act on them by initiating an investigation.\nThe defendants assume there can be only one direct victim\nentitled to recover damages under RICO, but that is not\nalways the case. Even if the Department of Commerce could\nhave asserted its own RICO claim to recover the costs it\nincurred in conducting the administrative review, that would\nnot preclude Harmoni from recovering the costs it incurred\nas a direct result of the defendants’ unlawful conduct.\n\f HARMONI INT’L SPICE V. HUME 9\n\n The three factors we typically assess when considering\nwhether proximate cause has been shown weigh in\nHarmoni’s favor. See Mendoza v. Zirkle Fruit Co., 301 F.3d\n1163, 1169 (9th Cir. 2002). First, no more direct victim of\nthe defendants’ sham-filing scheme is better positioned to\nsue. The Department of Commerce may itself be a direct\nvictim, but it would be unlikely to vindicate the law by\nbringing its own claim, and indeed it has not done so.\nSecond, no difficulty will arise ascertaining what portion of\nthe claimed damages is attributable to the defendants’\nunlawful conduct. If Harmoni’s allegations are true, all of\nthe costs it incurred responding to the administrative review\nare attributable to the defendants’ unlawful conduct, for\nwithout the sham filings no administrative review would\nhave occurred at all. And finally, there is no risk of\nduplicative recoveries because no other plaintiff could seek\nto recover any of the costs Harmoni incurred responding to\nthe administrative review.\n\n With respect to the second category of damages—lost\nsales attributable to the defendants’ false accusations about\nHarmoni’s business practices—Harmoni may be able to\nallege proximate cause as well. The Supreme Court’s\ndecision in Bridge v. Phoenix Bond & Indemnity Co.,\n553 U.S. 639 (2008), is instructive on this point. There the\nCourt confronted an alleged RICO scheme in which the\ndefendants committed acts of mail fraud by submitting false\ncertifications to a county government in connection with the\ncounty’s sale at auction of valuable tax liens. As a direct\nresult of the false certifications, the defendants acquired tax\nliens that the plaintiffs—rival bidders at the auctions—\nwould otherwise have acquired for themselves. Id. at 643–\n45. The Court concluded that the plaintiffs had adequately\nalleged proximate cause, even though the defendants made\nthe false statements to the county, and the county rather than\n\f10 HARMONI INT’L SPICE V. HUME\n\nthe plaintiffs relied on those statements in awarding liens to\nthe winning bidders. Id. at 655–58. In explaining why a\nplaintiff can be injured “by reason of” acts of mail fraud even\nif the plaintiff did not rely on the defendant’s\nmisrepresentations, the Court offered the following\nhypothetical:\n\n [S]uppose an enterprise that wants to get rid\n of rival businesses mails misrepresentations\n about them to their customers and suppliers,\n but not to the rivals themselves. If the rival\n businesses lose money as a result of the\n misrepresentations, it would certainly seem\n that they were injured in their business “by\n reason of” a pattern of mail fraud, even\n though they never received, and therefore\n never relied on, the fraudulent mailings.\n\nId. at 649–50.\n\n That hypothetical describes Harmoni’s allegations in this\ncase, with one immaterial difference. Harmoni alleges that\nthe defendants committed mail and wire fraud by making\nmisrepresentations in public filings submitted to the\nDepartment of Commerce, rather than sending those\ncommunications directly to Harmoni’s customers. Nothing\nturns on that fact, however, because Harmoni alleges both\nthat the defendants knew their public filings would be\nreviewed by Harmoni’s customers, and that the defendants\nmade the false statements with the specific intent of harming\nHarmoni’s business reputation in the eyes of its customers.\nSee Lexmark International, Inc. v. Static Control\nComponents, Inc., 134 S. Ct. 1377, 1393 (2014) (“When a\ndefendant harms a plaintiff’s reputation by casting\naspersions on its business, the plaintiff’s injury flows\n\f HARMONI INT’L SPICE V. HUME 11\n\ndirectly from the audience’s belief in the disparaging\nstatements.”). If Harmoni can prove that it lost sales as a\ndirect result of the defendants’ predicate acts of mail and\nwire fraud, the proximate cause element of its RICO claim\nwill be satisfied. See, e.g., Restatement (Second) of Torts\n§ 633 (1977).\n\n This same reasoning could potentially apply to the third\ncategory of damages—harm to Harmoni’s business\nreputation—although that issue will need to be litigated on\nremand. The parties dispute whether damage to business\nreputation constitutes a compensable injury under RICO.\nHarmoni argues that harm to business reputation constitutes\nan injury to a “specific business or property interest” under\nCalifornia law and is therefore covered by RICO. See Diaz\nv. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc) (per\ncuriam). The defendants argue that RICO precludes\nrecovery for harm to intangible property interests and that\nthe reputation of a business constitutes such an interest. See\nOscar v. University Students Co-operative Association,\n965 F.2d 783, 785–86 (9th Cir. 1992) (en banc). Because\nthe district court has not yet addressed this issue and the\nparties have not adequately briefed it on appeal, we decline\nto resolve it here. The issue remains open for the district\ncourt to take up on remand. 1\n\n Nevertheless, as it stands now, Harmoni’s complaint\ndoes not plausibly allege proximate cause with respect to\ndamages for lost sales or harm to its business reputation\n\n 1\n We also decline to address in the first instance the defendants’\nargument that Harmoni has not alleged a “domestic injury” under RJR\nNabisco, Inc. v. European Community, 136 S. Ct. 2090, 2111 (2016).\nThe defendants did not raise that argument below and the district court\ntherefore had no opportunity to address it.\n\f12 HARMONI INT’L SPICE V. HUME\n\n(assuming such harm is compensable under RICO).\nHarmoni’s complaint merely asserts the bare conclusion that\nit suffered these damages as a result of the defendants’\npredicate acts of mail and wire fraud. To survive a motion\nto dismiss, Harmoni’s complaint must allege “factual\ncontent that allows the court to draw the reasonable\ninference” that its lost sales and reputational injury were the\ndirect result of the defendants’ wrongful conduct. Ashcroft\nv. Iqbal, 556 U.S. 662, 678 (2009). Although the complaint\ndoes not meet that standard now, Harmoni could\nconceivably amend the complaint to cure this deficiency by\nalleging, for example, the circumstances under which its\ncustomers learned of the defendants’ false accusations and,\nin reliance on that false information, canceled purchases they\nwere otherwise planning to make. Because the complaint\ncould potentially be saved by amendment, the district court\nshould have granted Harmoni leave to amend. See Eminence\nCapital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.\n2003) (per curiam).\n\n Harmoni argues that it also should have been granted\nleave to amend its allegations against Huamei Consulting.\nThe district court dismissed the RICO claim against Huamei\nConsulting for failure to allege at least two predicate acts\nconstituting a pattern of racketeering activity. Harmoni did\nnot receive notice of this deficiency until the court’s\ndismissal order, and the order did not explain why\namendment would be futile. As a result, Harmoni should\nhave been granted leave to amend its allegations against\nHuamei Consulting as well. See id. at 1053.\n\n REVERSED and REMANDED.\n[END_CASE]", "role": "user" } ]
4,584,426		Narinder Singh v. Matthew Whitaker	2019-01-24	16-70823	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n NARINDER P. SINGH, AKA Narinder Nos. 16-70823\n Pal Singh 16-72285\n Petitioner,\n Agency No.\n v. A205-421-984\n\n MATTHEW G. WHITAKER, Acting\n Attorney General, OPINION\n Respondent.\n\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted November 13, 2018\n San Francisco, California\n\n Filed January 24, 2019\n\nBefore: RAYMOND C. FISHER and MILAN D. SMITH,\n JR., Circuit Judges, and ELAINE E. BUCKLO, * District\n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n \n The Honorable Elaine E. Bucklo, United States District Judge for\nthe Northern District of Illinois, sitting by designation.\n\f2 SINGH V. WHITAKER\n\n\n SUMMARY \n\n\n Immigration\n\n The panel granted in part and denied in part a petition for\nreview of the Board of Immigration Appeals’ denial of\nasylum, humanitarian asylum, withholding of removal, and\nprotection under the Convention Against Torture.\n\n The panel held that the Board erred in failing to conduct\na reasoned analysis with respect to petitioner’s situation to\ndetermine whether, in light of the specific persons or entities\nthat caused his past persecution, and the nature and extent of\nthat persecution, there are one or more general or specific\nareas within his country of origin where he has no well-\nfounded fear of persecution, and where it is reasonable for\nhim to relocate pursuant to the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3).\n\n In so concluding, the panel held that based upon its plain\nlanguage, § 1208.13(b)(3) does not require the government\nto propose a city, state, or other type of locality as the area\nof relocation, rather the Department of Homeland Security\nmay properly propose a specific or a more general area as\nthe place of safe relocation. The Board must then conduct\nits safe relocation analysis with respect to that proposed area,\nhowever specifically or generally defined.\n\n The panel also held that in considering the\nreasonableness of relocation, the Board erred in failing to\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f SINGH V. WHITAKER 3\n\nanalyze whether petitioner would be substantially safer in a\nnew location if he were to continue expressing his political\nopinion, and erred by unlawfully assuming that petitioner\ncould silence his political activity to avoid harm.\n\n The panel therefore granted the petition as to petitioner’s\nasylum and withholding of removal claims, and remanded\nfor the Board to conduct a sufficiently individualized\nanalysis of whether petitioner could safely and reasonably\nrelocate outside Punjab, and for reconsideration of whether\nhe qualified for withholding from removal.\n\n The panel denied the petition as to petitioner’s\nhumanitarian asylum and CAT claims, holding that the\nthreats and physical harm petitioner suffered did not rise to\nthe requisite level to warrant humanitarian asylum, and that\npetitioner failed to establish that it was more likely than not\nhe would be tortured if he returned to India.\n\n\n COUNSEL\n\nRobert B. Jobe (argued) and Morgan Russell, Law Office of\nRobert B. Jobe, San Francisco, California, for Petitioner.\n\nAlexander J. Lutz (argued), Trial Attorney; Anthony C.\nPayne, Assistant Director; Office of Immigration Litigation,\nCivil Division, United States Department of Justice,\nWashington, D.C.; for Respondent.\n\f4 SINGH V. WHITAKER\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Narinder Pal Singh, a citizen of India and a member of\nthe political party Shiromani Akali Dal Amritsar (Mann\nParty), petitions our court to review the Board of\nImmigration Appeals’ (BIA) decision denying his claims for\nasylum, withholding of removal, and relief under the\nConvention Against Torture (CAT). After suffering\nmultiple physical attacks at the hands of the Punjabi police\nand Congress Party members due to his participation in\nMann Party events, Singh fled India. He initially entered the\nUnited States in January 2013. The Immigration Judge (IJ)\ndenied all of Singh’s claims. The BIA also denied Singh all\nrelief sought, and then denied his motion to reconsider.\n\n We hold that the BIA erred in failing to conduct a\nreasoned analysis with respect to Singh’s situation to\ndetermine whether, in light of the specific persons or entities\nthat caused his past persecution, and the nature and extent of\nthat persecution, there are one or more general or specific\nareas within his country of origin where he has no well-\nfounded fear of persecution, and where it is reasonable for\nhim to relocate pursuant to the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3). Because the BIA did not conduct a\nsufficiently individualized analysis of Singh’s ability to\nrelocate within India outside of the state of Punjab, we grant\nthe petition for review and remand the withholding of\nremoval and asylum claims to the BIA. However, we deny\nreview of Singh’s claims for humanitarian asylum and CAT\nprotection.\n\f SINGH V. WHITAKER 5\n\n BACKGROUND\n\n Narinder Pal Singh is a native and citizen of India. He\nentered the United States on or about January 27, 2013\nthrough the Nogales, Arizona port of entry, without\npossessing a valid entry document. An asylum officer later\ndetermined that Singh demonstrated a credible fear of\npersecution or torture. Singh applied for asylum,\nwithholding of removal, and protection under CAT.\n\n At a hearing before the IJ, Singh testified that he is a Sikh\nand a member of the Mann Party. The Mann Party advocates\nfor Sikh rights and an independent Khalistan state. Singh\nattended and assisted at Mann Party rallies, and distributed\nleaflets.\n\n Singh experienced several threats and suffered physical\nharm due to his membership in the Mann Party. He received\ntelephonic threats in May and June of 2008, and again in\nOctober 2012. In June 2008, the police arrested Singh while\nhe was distributing Mann Party leaflets, and beat him for six\ndays with a leather strap. In August 2010, the police arrested\nSingh and detained him for ten days after protesting India’s\nIndependence Day. During Singh’s detention, the police\nbeat him with their fists and sticks, demanding that he stop\nsupporting Khalistan and the Mann Party. Finally, in\nJanuary 2012, the police arrested Singh and took him to the\npolice station, where they beat him. In addition, Congress\nParty members beat Singh in April 2012, when he was\nreturning from a Mann Party blood drive, and again in\nSeptember 2012, while he was returning from a Mann Party\nevent. After almost all of these beatings, Singh required\nhospital treatment, including multiple-day hospitalizations.\nSingh eventually fled India in November 2012.\n\f6 SINGH V. WHITAKER\n\n After Singh left India, the police continued going to his\nhouse in Punjab to ask where he was. In February 2014,\npolice and Congress Party members went to his house in\nPunjab and attacked his father, breaking his father’s arm in\nthe process.\n\n Singh testified that it was not possible for him to live\noutside Punjab in India because, as a Mann Party member,\nthe police would look for him and might kill him. He also\nnoted that the police never charged him with any crimes after\nhis several arrests.\n\n The IJ denied all the relief sought by Singh. The IJ\naccorded Singh’s testimony and declaration “full evidentiary\nweight,” yet found the Department of Homeland Security\n(DHS) rebutted the presumption of his well-founded fear of\nfuture persecution. Specifically, the IJ considered the\nsubmitted country-conditions evidence and found that Singh\ncould safely and reasonably relocate outside Punjab within\nIndia. The IJ noted that low-level Mann Party members not\nwanted by the Indian central authorities were unlikely to be\ntargeted outside of Punjab, and that there was no evidence\nthe Congress Party members who harmed Singh could find\nhim outside Punjab. The IJ also found relocation reasonable\ngiven Singh’s “good health and job skills” and the fact that\nSikhs no longer face violence or legal obstacles when\nmoving within India.\n\n Further, the IJ found that the threats and physical harm\ninflicted upon Singh did not rise to the requisite level to\nwarrant humanitarian asylum, and that he had not shown it\nwas more likely than not he would be tortured if he returned\nto India, as required for protection under CAT.\n\n Singh appealed the IJ’s decision, which the BIA\naffirmed. The BIA found that the evidence supported the\n\f SINGH V. WHITAKER 7\n\nIJ’s determination that DHS carried its burden to show Singh\ncould safely and reasonably relocate outside Punjab within\nIndia. The BIA also agreed with the IJ’s determination that\nSingh was not entitled to humanitarian asylum, and his\nconclusion that Singh did not qualify for CAT relief.\n\n In his motion to reconsider filed with the BIA, Singh\nargued that the evidence did not establish by a\npreponderance that he could engage in his political activities\noutside Punjab more safely than inside the state, and asserted\nthat the IJ failed to identify a specific area of the country to\nwhich he could relocate as required by BIA precedent.\nSingh also argued that the BIA’s determination that he could\nreasonably relocate was based on unsubstantiated assertions\nregarding his employment prospects. Finally, Singh\ncontended that CAT relief was warranted based on his past\ntorture and the current country conditions. The BIA denied\nthe motion to reconsider, finding no legal or factual errors in\nits analysis and stating it need not identify a specific area of\nIndia suitable for relocation. Singh’s appeals from both the\ndenial of the motion to reconsider and the BIA’s decision are\nnow consolidated before us.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction over Singh’s petition pursuant to\n8 U.S.C. § 1252(a)(1). Where, as here, the BIA reviewed the\nIJ’s factual findings for clear error, and reviewed de novo all\nother issues, our review is “limited to the BIA’s decision,\nexcept to the extent the IJ’s opinion is expressly adopted.”\nHosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). We\nreview the BIA’s determinations of purely legal questions de\nnovo, and factual findings for substantial evidence. Ali v.\nHolder, 637 F.3d 1025, 1028–29 (9th Cir. 2011). Under the\nsubstantial evidence standard, we uphold the agency’s\n\f8 SINGH V. WHITAKER\n\ndetermination unless “compelled to conclude to the\ncontrary.” Id. at 1029.\n\n ANALYSIS\n\n On appeal, Singh challenges the BIA’s denial of his\nclaims for asylum, withholding of removal, humanitarian\nasylum, and protection under CAT, as well as its denial of\nhis motion to reconsider. We grant the petition for review as\nto Singh’s withholding of removal and asylum claims\nbecause while the BIA afforded Singh the presumption of a\nwell-founded fear of persecution, it failed to conduct a\nsufficiently individualized analysis of his ability to relocate\nwithin India. However, we find that substantial evidence\nsupports the BIA’s conclusions regarding Singh’s\nhumanitarian asylum and CAT claims, and we deny review\nof those claims.\n\nI. Asylum\n\n Past persecution “triggers a rebuttable presumption of a\nwell-founded fear of future persecution.” Garcia-Martinez\nv. Ashcroft, 371 F.3d 1066, 1073 (9th Cir. 2004). When an\nasylum applicant has established that he suffered past\npersecution, the burden is on the government to show by a\npreponderance of the evidence that the applicant either no\nlonger has a well-founded fear of persecution in the country\nof his nationality, or that he can reasonably relocate\ninternally to an area of safety. Afriyie v. Holder, 613 F.3d\n924, 934 (9th Cir. 2010); 8 C.F.R. § 1208.13(b)(1)(i).\n\n Relocation analysis consists of two steps: (1) “whether\nan applicant could relocate safely,” and (2) “whether it\nwould be reasonable to require the applicant to do so.”\nAfriyie, 613 F.3d at 934. For an applicant to be able to safely\nrelocate internally, “there must be an area of the country\n\f SINGH V. WHITAKER 9\n\nwhere he or she has no well-founded fear of persecution.”\nMatter of M-Z-M-R-, 26 I. & N. Dec. 28, 33 (B.I.A. 2012).\nTo determine the reasonableness of relocation, factors to\nconsider include potential harm in the suggested relocation\narea, ongoing civil strife in the country, and social and\ncultural constraints, among others. 8 C.F.R.\n§ 1208.13(b)(3). The factors may not all be relevant in a\nspecific case, and they “are not necessarily determinative of\nwhether it would be reasonable for the applicant to relocate.”\nId.\n\n Here, the BIA afforded Singh the presumption of past\npersecution due to his previous beatings at the hands of the\npolice and Congress Party members, and therefore, the\nburden shifted to the government to show by a\npreponderance of the evidence that Singh could safely and\nreasonably relocate internally.\n\n A. Safe Relocation\n\n Singh first contends that the BIA erred in failing to\nidentify a specific area within India to which Singh could\nsafely relocate, as required by Matter of M-Z-M-R-. There,\nthe BIA stated that where an applicant meets the refugee\ndefinition based on past persecution, “DHS must\ndemonstrate that there is a specific area of the country where\nthe risk of persecution to the respondent falls below the well-\nfounded fear level.” 26 I. & N. Dec. at 33−34 (emphasis\nadded). The BIA ultimately remanded the case to the IJ for\nfurther fact-finding on whether the risk of persecution to the\napplicant in the city of Hatton, “or another proposed area,”\nmet the requisite standard. Id. at 34. Here, similarly, Singh\nargues that the BIA was too vague when it defined his safe\nrelocation area as “outside Punjab.”\n\f10 SINGH V. WHITAKER\n\n We acknowledge the ambiguity within Matter of M-Z-\nM-R-, and the lack of controlling precedent on the level of\nspecificity required of the government in identifying a\nproposed relocation area. In Matter of M-Z-M-R-, the BIA\nspeaks of a “specific area” for relocation, yet cites a case in\nsupport of this proposition that upheld the BIA’s decision in\nwhich the safe area was defined as “outside” the applicant’s\n“very small home village.” Id. at 33–34 (quoting Tendean\nv. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007)). Previously, we\nhave observed in a non-precedential decision that “it is\nsufficient to define an area of relocation generally.” Singh\nv. Sessions, 743 F. App’x 729, 731 (9th Cir. 2018) (denying\nreview where the BIA found the applicant could relocate\noutside Punjab, to another part of India). In numerous\nimmigration cases however, DHS proposed specific cities or\nregions within the applicant’s country of origin. See, e.g.,\nKaiser v. Ashcroft, 390 F.3d 653, 659–60 (9th Cir. 2004)\n(analyzing whether petitioners could relocate safely to two\ncities, a geographical region, or elsewhere in Pakistan).\n\n The immigration regulations require that the government\nprove relocation is possible only to “another part” of the\napplicant’s home country or country of last habitual\nresidence. 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(2)(ii). Based\nupon its plain language, the regulation does not require the\ngovernment to propose a city, state, or other type of locality\nas the area of relocation. Accordingly, we hold that DHS\nmay properly propose a specific or a more general area as\nthe place of safe relocation. The BIA must then conduct its\nsafe relocation analysis with respect to that proposed area,\nhowever specifically or generally defined. This holding\naffords DHS flexibility in determining a safe relocation area,\nbut maintains the appropriate burden on the government to\ndemonstrate that the proposed area is safe for the applicant.\nCommensurate with DHS’s burden, a more generally\n\f SINGH V. WHITAKER 11\n\ndefined area will likely require a more comprehensive\nshowing of proof that the entirety of the area is safe for\nrelocation, as compared to, for example, a specific city.\n\n Consequently, we reject Singh’s argument that a greater\nlevel of specificity than “outside Punjab” was required as his\nproposed area of relocation. Although general, “outside\nPunjab” can comply with the requirement that DHS propose\n“another part” of India for Singh’s relocation, so long as\nDHS meets its other obligations in the relocation analysis,\nsuch as considering the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3).\n\n B. Reasonable Relocation\n\n Singh also argues that the BIA erred in failing to analyze\nwhether he would be substantially safer in a new location if\nhe were to continue expressing his support for the Khalistan\nsecession movement, and erred by unlawfully assuming that\nhe could silence his political activity to avoid harm. 1 We\nagree, and grant the petition for review on this issue.\n\n\n\n 1\n The government argues that Singh has not exhausted the argument\nconcerning his silenced political opinion, and therefore it is not properly\nbefore the court. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th\nCir. 2003) (“Before a petitioner can raise an argument on appeal, the\npetitioner must first raise the issue before the BIA or IJ.”). However, the\nIJ addressed this issue, and Singh raised it in his motion for\nreconsideration before the BIA. Although the BIA did not explicitly\nconsider this argument in its denial of reconsideration, we find it is\nnonetheless exhausted. See Garcia v. Lynch, 786 F.3d 789, 792–94 (9th\nCir. 2015) (holding that an issue was exhausted where the petitioner\nraised it before the IJ, in his pro se notice of appeal to the BIA, and in\nspecific terms in his motion to reconsider, and the BIA addressed it on\nthe merits in denying the motion to reconsider).\n\f12 SINGH V. WHITAKER\n\n The BIA considered whether a Mann Party member\nwould face harm from the Punjabi police outside of Punjab.\nThe BIA also noted the existence of tenant registration\nsystems in certain parts of India, and that there is little\ninformation-sharing across Indian states outside of criminal\ndefendant information. The Law Library of Congress 2012\nreport (Law Library Report)—upon which the BIA relied—\nstated that the police may pursue “high-profile militants”\noutside of Punjab, yet acknowledged that the Punjabi police\nmay wrongly place individuals involved in ordinary political\nactivities on chronic offender lists. As the BIA decision\nnotes, the Law Library Report also asserted that it is unlikely\nthat an individual Mann Party member who “simply holds\npro-Khalistani views” would be targeted.\n\n Although the BIA discussed the Law Library Report and\nits conclusion that the police will likely pursue only “high-\nprofile militants” outside of Punjab, it erred by failing to\naddress the potential harm Congress Party members, or other\nlocal authorities, might inflict upon Singh in a new state.\nInstead, the BIA’s analysis focused on whether the Punjabi\npolice would follow Singh outside of Punjab, based on his\npast political activity, ultimately concluding that he was not\nsufficiently high-profile for them to do so. This analysis\ndoes not account for the persecution he may face outside\nPunjab from local authorities, or other actors, based on his\nfuture political activities. “[W]here the applicant has\nestablished a well-founded fear of future persecution at the\nhands of the government, a rebuttable presumption arises\nthat the threat exists nationwide.” Melkonian v. Ashcroft,\n320 F.3d 1061, 1070 (9th Cir. 2003). The BIA failed to\napply that nationwide presumption to Singh’s asylum claim,\neven though it correctly afforded him the presumption of a\nwell-founded fear of persecution. Similarly, the BIA also\nfailed to specifically address Singh’s stated intent to\n\f SINGH V. WHITAKER 13\n\ncontinue proselytizing for his party wherever he went. Thus,\nthe BIA’s analysis regarding whether Singh could\nreasonably relocate was inadequate. See Knezevic v.\nAshcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)\n(remanding to the BIA the issue of reasonableness of internal\nrelocation due to its failure to account for several factors\noutlined in 8 C.F.R. § 1208.13(b)(3)).\n\n We hold that the BIA must conduct a reasoned analysis\nwith respect to a petitioner’s individualized situation to\ndetermine whether, in light of the persons or entities that\ncaused the past persecution, and the nature and extent of the\npersecution, there are one or more general or specific areas\nwithin the petitioner’s country of origin where he has no\nwell-founded fear of persecution and where it is reasonable\nto relocate, considering the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3). Here, in determining Singh could safely\nand reasonably relocate “outside Punjab,” the BIA failed to\nconduct such an individualized analysis, and we remand this\nclaim to the BIA to determine anew whether relocation is\nappropriate for Singh. 2\n\n\n\n\n 2\n To the extent that Singh also seeks withholding of removal, we\nremand this issue to the BIA. To warrant withholding of removal, an\napplicant must show that “it is more probable than not that they will face\npersecution on account of a protected ground upon their deportation.”\nKaiser, 390 F.3d at 660. The BIA did not separate its analysis regarding\nSingh’s asylum claim from whether Singh warranted withholding of\nremoval. Because the BIA’s denial of Singh’s claim for withholding of\nremoval was based on its inadequate determination that Singh could\nsafely and reasonably relocate, we remand to the BIA to reconsider\nwhether Singh warrants withholding of removal.\n\f14 SINGH V. WHITAKER\n\nII. Humanitarian Asylum\n\n Regardless of whether the government has rebutted the\npresumption of an asylum applicant’s well-founded fear of\npersecution, the BIA may still grant humanitarian asylum.\nMatter of M-Z-M-R-, 26 I. & N. Dec. at 31. An applicant\nseeking humanitarian asylum must show either “compelling\nreasons for being unwilling or unable to return” to his\ncountry of nationality “arising out of the severity of the\n[applicant’s] past persecution,” or “a reasonable possibility\nthat he or she may suffer other serious harm upon removal\nto that country.” 8 C.F.R. § 1208.13(b)(1)(iii). The\napplicant bears the burden of proof to show that either form\nof humanitarian asylum is warranted. Matter of L-S-, 25 I.\n& N. Dec. 705, 710 (B.I.A. 2012). Humanitarian asylum\nbased on past persecution may be granted where the\npetitioner has suffered “atrocious forms of persecution.”\nKebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004)\n(quoting Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.\n1996)).\n\n Singh asserts that the BIA’s decision was too conclusory,\nand failed to consider all the relevant factors in determining\nwhere he qualified for humanitarian asylum under the\n“compelling reasons” prong. Singh did not previously raise\nthe brevity of the IJ’s or BIA’s analysis, either in his appeal\nbrief or in his motion to reconsider. Thus, the argument is\nunexhausted, and we lack jurisdiction to consider it. 3 See\nRojas-Garcia, 339 F.3d at 819.\n\n\n 3\n This argument also appears meritless. We have stated, “When\nnothing in the record or the BIA’s decision indicates a failure to consider\nall the evidence, a ‘general statement that the agency considered all the\nevidence before it’ may be sufficient.” Cole v. Holder, 659 F.3d 762,\n\f SINGH V. WHITAKER 15\n\n The BIA described the physical harm Singh suffered at\nthe hands of the police and Congress Party members, and\nnoted his multiple hospitalizations. The BIA then\ndetermined that Singh’s previous persecution did not rise to\nthe necessary level of atrociousness to warrant humanitarian\nasylum. We find the BIA’s denial of humanitarian asylum\nsupported by substantial evidence.\n\n Our case law demonstrates that extremely severe\npersecution is required to warrant humanitarian relief. See,\ne.g., Lal v. INS, 255 F.3d 998, 1009–10 (9th Cir. 2001)\n(finding unsupported the BIA’s denial of humanitarian\nasylum where applicant was detained, beaten and tortured\nwith knives and cigarettes, deprived of food and water,\nforced to watch sexual assault of wife, and had house and\nplace of worship burned, among other harms). While\nundoubtedly troubling, Singh’s past persecution does not\nrise to the level of severity in some other cases in which we\nhave denied petitions for review where the BIA has declined\nto extend humanitarian asylum. See, e.g., Hanna v. Keisler,\n506 F.3d 933, 936–37, 939 (9th Cir. 2007) (past persecution\ninsufficient where applicant was arrested, detained, and\ntortured for over a month, jailed and beaten for fifteen days,\nand threatened if he did not join a paramilitary organization).\nIn cases similar to Singh’s, we have consistently denied\nreview. See Marcu v. INS, 147 F.3d 1078, 1080, 1083 (9th\nCir. 1998) (holding BIA did not abuse its discretion in\ndenying applicant humanitarian asylum where police had\n\n\n771 (9th Cir. 2011) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 922\n(9th Cir. 2006)). The BIA’s decision records the Singh family’s past\npersecution at the outset, and notes that the “several threats and physical\nabuse” Singh suffered did not rise to the requisite level of harm. There\nis no evidence that the BIA “misstat[ed] the record” or “fail[ed] to\nmention highly probative or potentially dispositive evidence.” Id.\n\f16 SINGH V. WHITAKER\n\ndetained and beaten applicant on several occasions,\nthreatened to kill him, and gone to his house looking for him\nafter he left the country). Accordingly, we deny the petition\nfor review of this claim.\n\nIII. Convention Against Torture\n\n To obtain CAT relief, “a petitioner must show that\ntorture would be ‘inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other\nperson acting in an official capacity.’” Afriyie, 613 F.3d at\n937 (quoting 8 C.F.R. § 208.18(a)(1)). The petitioner must\nshow that he “more likely than not” will be tortured if he\nreturns home. Id. Torture is defined as\n\n any act by which severe pain or suffering,\n whether physical or mental, is intentionally\n inflicted on a person for such purposes as\n obtaining from him or her or a third person\n information or a confession, punishing him or\n her for an act he or she or a third person has\n committed or is suspected of having\n committed, or intimidating or coercing him\n or her or a third person, or for any reason\n based on discrimination of any kind.\n\n8 C.F.R. § 1208.18(a)(1). Relevant considerations for a\nCAT claim include evidence of past torture inflicted upon\nthe applicant, evidence of safe internal relocation, evidence\nof mass violations of human rights within the country of\nremoval, and other pertinent country conditions. Nuru v.\nGonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (quoting\n8 C.F.R. § 1208.16(c)(3)). Evidence that the applicant\n“could relocate to a part of the country of removal where he\nor she is not likely to be tortured” is also a relevant\n\f SINGH V. WHITAKER 17\n\nconsideration. Kamalthas v. INS, 251 F.3d 1279, 1282 (9th\nCir. 2001).\n\n Although the BIA’s denial of Singh’s CAT claim relied\nin part on its determination that he could relocate, and we\nremand to the BIA for reconsideration of the latter\ndetermination in connection with his asylum and\nwithholding of removal claims, we see no reason to do the\nsame for his CAT claim. Singh points to the BIA’s “flawed”\nrelocation analysis, but the BIA’s insufficient analysis of\nthat issue does not establish that Singh carried his burden for\nhis CAT claim. See Ahmed v. Keisler, 504 F.3d 1183, 1199,\n1201 (9th Cir. 2007) (reversing IJ’s denial of asylum claim\nbut finding substantial evidence supported denial of CAT\nrelief). The ability to relocate is but one factor in the CAT\nanalysis. To prevail on his CAT claim, Singh would need to\nprove that he “more likely than not” would be tortured if he\nreturned home; the BIA did not need to disprove this\ncontention.\n\n Singh argues that his political activity would result in his\nbeing tortured, noting that it has led to his torture in the past,\nand that there is widespread torture of activists by the Indian\npolice. 4 We conclude, however, that there is substantial\nevidence supporting the denial of CAT protection. While\nSingh highlights general evidence that police across India\nare engaged in human rights violations, the evidence specific\nto Mann Party members is sparse. Notwithstanding Singh’s\n\n 4\n Singh hinges much of his argument on the fact that it would not\nmake sense for a pro-secession activist such as himself to relocate\noutside of Punjab. However, Singh did not previously raise the issue of\nwhether it was illogical for him to live elsewhere, and therefore it is not\nexhausted. Accordingly, we consider only whether there is substantial\nevidence that Singh would more likely than not be tortured, or if instead\nwe are “compelled to conclude to the contrary.” Ali, 637 F.3d at 1029.\n\f18 SINGH V. WHITAKER\n\npersonal experiences, the evidence in the record suggests\nMann Party members are targeted primarily when they are\nhigh-profile militants. Despite Singh’s documentary\nevidence regarding human rights concerns in India, we are\nnot compelled to conclude that Singh more likely than not\nwould be the subject of torture should he return to India.\nThat Singh suffered persecution in the past does not\nnecessarily mean he will be tortured in the future. See\nAhmed, 504 F.3d at 1201 (finding substantial evidence\nsupported denial of CAT relief where petitioner had been\nbeaten four times by the police but otherwise did not\ndemonstrate he would be tortured upon return to\nBangladesh, because it was not clear that past persecution\nrose to the level of torture). Therefore, we deny the petition\nfor review on Singh’s CAT claim.\n\n CONCLUSION\n\n We grant the petition for review of Singh’s asylum and\nwithholding of removal claims, and remand for the BIA to\nconduct a sufficiently individualized analysis of whether\nSingh could safely and reasonably relocate outside Punjab,\nand for reconsideration of whether he qualified for\nwithholding from removal. We deny the petition for Singh’s\nhumanitarian asylum and CAT claims.\n\n Each party shall bear its own costs on appeal.\n\n PETITION GRANTED AND REMANDED IN\nPART, DENIED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361679/", "author_raw": "M. SMITH, Circuit Judge:"}]}	RAYMOND C FISHER	MILAN D SMITH JR	ELAINE E BUCKLO	1		{"RAYMOND C FISHER": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "ELAINE E BUCKLO": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584426/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Narinder Singh v. Matthew Whitaker\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n NARINDER P. SINGH, AKA Narinder Nos. 16-70823\n Pal Singh 16-72285\n Petitioner,\n Agency No.\n v. A205-421-984\n\n MATTHEW G. WHITAKER, Acting\n Attorney General, OPINION\n Respondent.\n\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted November 13, 2018\n San Francisco, California\n\n Filed January 24, 2019\n\nBefore: RAYMOND C. FISHER and MILAN D. SMITH,\n JR., Circuit Judges, and ELAINE E. BUCKLO, * District\n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n \n The Honorable Elaine E. Bucklo, United States District Judge for\nthe Northern District of Illinois, sitting by designation.\n\f2 SINGH V. WHITAKER\n\n\n SUMMARY \n\n\n Immigration\n\n The panel granted in part and denied in part a petition for\nreview of the Board of Immigration Appeals’ denial of\nasylum, humanitarian asylum, withholding of removal, and\nprotection under the Convention Against Torture.\n\n The panel held that the Board erred in failing to conduct\na reasoned analysis with respect to petitioner’s situation to\ndetermine whether, in light of the specific persons or entities\nthat caused his past persecution, and the nature and extent of\nthat persecution, there are one or more general or specific\nareas within his country of origin where he has no well-\nfounded fear of persecution, and where it is reasonable for\nhim to relocate pursuant to the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3).\n\n In so concluding, the panel held that based upon its plain\nlanguage, § 1208.13(b)(3) does not require the government\nto propose a city, state, or other type of locality as the area\nof relocation, rather the Department of Homeland Security\nmay properly propose a specific or a more general area as\nthe place of safe relocation. The Board must then conduct\nits safe relocation analysis with respect to that proposed area,\nhowever specifically or generally defined.\n\n The panel also held that in considering the\nreasonableness of relocation, the Board erred in failing to\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f SINGH V. WHITAKER 3\n\nanalyze whether petitioner would be substantially safer in a\nnew location if he were to continue expressing his political\nopinion, and erred by unlawfully assuming that petitioner\ncould silence his political activity to avoid harm.\n\n The panel therefore granted the petition as to petitioner’s\nasylum and withholding of removal claims, and remanded\nfor the Board to conduct a sufficiently individualized\nanalysis of whether petitioner could safely and reasonably\nrelocate outside Punjab, and for reconsideration of whether\nhe qualified for withholding from removal.\n\n The panel denied the petition as to petitioner’s\nhumanitarian asylum and CAT claims, holding that the\nthreats and physical harm petitioner suffered did not rise to\nthe requisite level to warrant humanitarian asylum, and that\npetitioner failed to establish that it was more likely than not\nhe would be tortured if he returned to India.\n\n\n COUNSEL\n\nRobert B. Jobe (argued) and Morgan Russell, Law Office of\nRobert B. Jobe, San Francisco, California, for Petitioner.\n\nAlexander J. Lutz (argued), Trial Attorney; Anthony C.\nPayne, Assistant Director; Office of Immigration Litigation,\nCivil Division, United States Department of Justice,\nWashington, D.C.; for Respondent.\n\f4 SINGH V. WHITAKER\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Narinder Pal Singh, a citizen of India and a member of\nthe political party Shiromani Akali Dal Amritsar (Mann\nParty), petitions our court to review the Board of\nImmigration Appeals’ (BIA) decision denying his claims for\nasylum, withholding of removal, and relief under the\nConvention Against Torture (CAT). After suffering\nmultiple physical attacks at the hands of the Punjabi police\nand Congress Party members due to his participation in\nMann Party events, Singh fled India. He initially entered the\nUnited States in January 2013. The Immigration Judge (IJ)\ndenied all of Singh’s claims. The BIA also denied Singh all\nrelief sought, and then denied his motion to reconsider.\n\n We hold that the BIA erred in failing to conduct a\nreasoned analysis with respect to Singh’s situation to\ndetermine whether, in light of the specific persons or entities\nthat caused his past persecution, and the nature and extent of\nthat persecution, there are one or more general or specific\nareas within his country of origin where he has no well-\nfounded fear of persecution, and where it is reasonable for\nhim to relocate pursuant to the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3). Because the BIA did not conduct a\nsufficiently individualized analysis of Singh’s ability to\nrelocate within India outside of the state of Punjab, we grant\nthe petition for review and remand the withholding of\nremoval and asylum claims to the BIA. However, we deny\nreview of Singh’s claims for humanitarian asylum and CAT\nprotection.\n\f SINGH V. WHITAKER 5\n\n BACKGROUND\n\n Narinder Pal Singh is a native and citizen of India. He\nentered the United States on or about January 27, 2013\nthrough the Nogales, Arizona port of entry, without\npossessing a valid entry document. An asylum officer later\ndetermined that Singh demonstrated a credible fear of\npersecution or torture. Singh applied for asylum,\nwithholding of removal, and protection under CAT.\n\n At a hearing before the IJ, Singh testified that he is a Sikh\nand a member of the Mann Party. The Mann Party advocates\nfor Sikh rights and an independent Khalistan state. Singh\nattended and assisted at Mann Party rallies, and distributed\nleaflets.\n\n Singh experienced several threats and suffered physical\nharm due to his membership in the Mann Party. He received\ntelephonic threats in May and June of 2008, and again in\nOctober 2012. In June 2008, the police arrested Singh while\nhe was distributing Mann Party leaflets, and beat him for six\ndays with a leather strap. In August 2010, the police arrested\nSingh and detained him for ten days after protesting India’s\nIndependence Day. During Singh’s detention, the police\nbeat him with their fists and sticks, demanding that he stop\nsupporting Khalistan and the Mann Party. Finally, in\nJanuary 2012, the police arrested Singh and took him to the\npolice station, where they beat him. In addition, Congress\nParty members beat Singh in April 2012, when he was\nreturning from a Mann Party blood drive, and again in\nSeptember 2012, while he was returning from a Mann Party\nevent. After almost all of these beatings, Singh required\nhospital treatment, including multiple-day hospitalizations.\nSingh eventually fled India in November 2012.\n\f6 SINGH V. WHITAKER\n\n After Singh left India, the police continued going to his\nhouse in Punjab to ask where he was. In February 2014,\npolice and Congress Party members went to his house in\nPunjab and attacked his father, breaking his father’s arm in\nthe process.\n\n Singh testified that it was not possible for him to live\noutside Punjab in India because, as a Mann Party member,\nthe police would look for him and might kill him. He also\nnoted that the police never charged him with any crimes after\nhis several arrests.\n\n The IJ denied all the relief sought by Singh. The IJ\naccorded Singh’s testimony and declaration “full evidentiary\nweight,” yet found the Department of Homeland Security\n(DHS) rebutted the presumption of his well-founded fear of\nfuture persecution. Specifically, the IJ considered the\nsubmitted country-conditions evidence and found that Singh\ncould safely and reasonably relocate outside Punjab within\nIndia. The IJ noted that low-level Mann Party members not\nwanted by the Indian central authorities were unlikely to be\ntargeted outside of Punjab, and that there was no evidence\nthe Congress Party members who harmed Singh could find\nhim outside Punjab. The IJ also found relocation reasonable\ngiven Singh’s “good health and job skills” and the fact that\nSikhs no longer face violence or legal obstacles when\nmoving within India.\n\n Further, the IJ found that the threats and physical harm\ninflicted upon Singh did not rise to the requisite level to\nwarrant humanitarian asylum, and that he had not shown it\nwas more likely than not he would be tortured if he returned\nto India, as required for protection under CAT.\n\n Singh appealed the IJ’s decision, which the BIA\naffirmed. The BIA found that the evidence supported the\n\f SINGH V. WHITAKER 7\n\nIJ’s determination that DHS carried its burden to show Singh\ncould safely and reasonably relocate outside Punjab within\nIndia. The BIA also agreed with the IJ’s determination that\nSingh was not entitled to humanitarian asylum, and his\nconclusion that Singh did not qualify for CAT relief.\n\n In his motion to reconsider filed with the BIA, Singh\nargued that the evidence did not establish by a\npreponderance that he could engage in his political activities\noutside Punjab more safely than inside the state, and asserted\nthat the IJ failed to identify a specific area of the country to\nwhich he could relocate as required by BIA precedent.\nSingh also argued that the BIA’s determination that he could\nreasonably relocate was based on unsubstantiated assertions\nregarding his employment prospects. Finally, Singh\ncontended that CAT relief was warranted based on his past\ntorture and the current country conditions. The BIA denied\nthe motion to reconsider, finding no legal or factual errors in\nits analysis and stating it need not identify a specific area of\nIndia suitable for relocation. Singh’s appeals from both the\ndenial of the motion to reconsider and the BIA’s decision are\nnow consolidated before us.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction over Singh’s petition pursuant to\n8 U.S.C. § 1252(a)(1). Where, as here, the BIA reviewed the\nIJ’s factual findings for clear error, and reviewed de novo all\nother issues, our review is “limited to the BIA’s decision,\nexcept to the extent the IJ’s opinion is expressly adopted.”\nHosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). We\nreview the BIA’s determinations of purely legal questions de\nnovo, and factual findings for substantial evidence. Ali v.\nHolder, 637 F.3d 1025, 1028–29 (9th Cir. 2011). Under the\nsubstantial evidence standard, we uphold the agency’s\n\f8 SINGH V. WHITAKER\n\ndetermination unless “compelled to conclude to the\ncontrary.” Id. at 1029.\n\n ANALYSIS\n\n On appeal, Singh challenges the BIA’s denial of his\nclaims for asylum, withholding of removal, humanitarian\nasylum, and protection under CAT, as well as its denial of\nhis motion to reconsider. We grant the petition for review as\nto Singh’s withholding of removal and asylum claims\nbecause while the BIA afforded Singh the presumption of a\nwell-founded fear of persecution, it failed to conduct a\nsufficiently individualized analysis of his ability to relocate\nwithin India. However, we find that substantial evidence\nsupports the BIA’s conclusions regarding Singh’s\nhumanitarian asylum and CAT claims, and we deny review\nof those claims.\n\nI. Asylum\n\n Past persecution “triggers a rebuttable presumption of a\nwell-founded fear of future persecution.” Garcia-Martinez\nv. Ashcroft, 371 F.3d 1066, 1073 (9th Cir. 2004). When an\nasylum applicant has established that he suffered past\npersecution, the burden is on the government to show by a\npreponderance of the evidence that the applicant either no\nlonger has a well-founded fear of persecution in the country\nof his nationality, or that he can reasonably relocate\ninternally to an area of safety. Afriyie v. Holder, 613 F.3d\n924, 934 (9th Cir. 2010); 8 C.F.R. § 1208.13(b)(1)(i).\n\n Relocation analysis consists of two steps: (1) “whether\nan applicant could relocate safely,” and (2) “whether it\nwould be reasonable to require the applicant to do so.”\nAfriyie, 613 F.3d at 934. For an applicant to be able to safely\nrelocate internally, “there must be an area of the country\n\f SINGH V. WHITAKER 9\n\nwhere he or she has no well-founded fear of persecution.”\nMatter of M-Z-M-R-, 26 I. & N. Dec. 28, 33 (B.I.A. 2012).\nTo determine the reasonableness of relocation, factors to\nconsider include potential harm in the suggested relocation\narea, ongoing civil strife in the country, and social and\ncultural constraints, among others. 8 C.F.R.\n§ 1208.13(b)(3). The factors may not all be relevant in a\nspecific case, and they “are not necessarily determinative of\nwhether it would be reasonable for the applicant to relocate.”\nId.\n\n Here, the BIA afforded Singh the presumption of past\npersecution due to his previous beatings at the hands of the\npolice and Congress Party members, and therefore, the\nburden shifted to the government to show by a\npreponderance of the evidence that Singh could safely and\nreasonably relocate internally.\n\n A. Safe Relocation\n\n Singh first contends that the BIA erred in failing to\nidentify a specific area within India to which Singh could\nsafely relocate, as required by Matter of M-Z-M-R-. There,\nthe BIA stated that where an applicant meets the refugee\ndefinition based on past persecution, “DHS must\ndemonstrate that there is a specific area of the country where\nthe risk of persecution to the respondent falls below the well-\nfounded fear level.” 26 I. & N. Dec. at 33−34 (emphasis\nadded). The BIA ultimately remanded the case to the IJ for\nfurther fact-finding on whether the risk of persecution to the\napplicant in the city of Hatton, “or another proposed area,”\nmet the requisite standard. Id. at 34. Here, similarly, Singh\nargues that the BIA was too vague when it defined his safe\nrelocation area as “outside Punjab.”\n\f10 SINGH V. WHITAKER\n\n We acknowledge the ambiguity within Matter of M-Z-\nM-R-, and the lack of controlling precedent on the level of\nspecificity required of the government in identifying a\nproposed relocation area. In Matter of M-Z-M-R-, the BIA\nspeaks of a “specific area” for relocation, yet cites a case in\nsupport of this proposition that upheld the BIA’s decision in\nwhich the safe area was defined as “outside” the applicant’s\n“very small home village.” Id. at 33–34 (quoting Tendean\nv. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007)). Previously, we\nhave observed in a non-precedential decision that “it is\nsufficient to define an area of relocation generally.” Singh\nv. Sessions, 743 F. App’x 729, 731 (9th Cir. 2018) (denying\nreview where the BIA found the applicant could relocate\noutside Punjab, to another part of India). In numerous\nimmigration cases however, DHS proposed specific cities or\nregions within the applicant’s country of origin. See, e.g.,\nKaiser v. Ashcroft, 390 F.3d 653, 659–60 (9th Cir. 2004)\n(analyzing whether petitioners could relocate safely to two\ncities, a geographical region, or elsewhere in Pakistan).\n\n The immigration regulations require that the government\nprove relocation is possible only to “another part” of the\napplicant’s home country or country of last habitual\nresidence. 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(2)(ii). Based\nupon its plain language, the regulation does not require the\ngovernment to propose a city, state, or other type of locality\nas the area of relocation. Accordingly, we hold that DHS\nmay properly propose a specific or a more general area as\nthe place of safe relocation. The BIA must then conduct its\nsafe relocation analysis with respect to that proposed area,\nhowever specifically or generally defined. This holding\naffords DHS flexibility in determining a safe relocation area,\nbut maintains the appropriate burden on the government to\ndemonstrate that the proposed area is safe for the applicant.\nCommensurate with DHS’s burden, a more generally\n\f SINGH V. WHITAKER 11\n\ndefined area will likely require a more comprehensive\nshowing of proof that the entirety of the area is safe for\nrelocation, as compared to, for example, a specific city.\n\n Consequently, we reject Singh’s argument that a greater\nlevel of specificity than “outside Punjab” was required as his\nproposed area of relocation. Although general, “outside\nPunjab” can comply with the requirement that DHS propose\n“another part” of India for Singh’s relocation, so long as\nDHS meets its other obligations in the relocation analysis,\nsuch as considering the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3).\n\n B. Reasonable Relocation\n\n Singh also argues that the BIA erred in failing to analyze\nwhether he would be substantially safer in a new location if\nhe were to continue expressing his support for the Khalistan\nsecession movement, and erred by unlawfully assuming that\nhe could silence his political activity to avoid harm. 1 We\nagree, and grant the petition for review on this issue.\n\n\n\n 1\n The government argues that Singh has not exhausted the argument\nconcerning his silenced political opinion, and therefore it is not properly\nbefore the court. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th\nCir. 2003) (“Before a petitioner can raise an argument on appeal, the\npetitioner must first raise the issue before the BIA or IJ.”). However, the\nIJ addressed this issue, and Singh raised it in his motion for\nreconsideration before the BIA. Although the BIA did not explicitly\nconsider this argument in its denial of reconsideration, we find it is\nnonetheless exhausted. See Garcia v. Lynch, 786 F.3d 789, 792–94 (9th\nCir. 2015) (holding that an issue was exhausted where the petitioner\nraised it before the IJ, in his pro se notice of appeal to the BIA, and in\nspecific terms in his motion to reconsider, and the BIA addressed it on\nthe merits in denying the motion to reconsider).\n\f12 SINGH V. WHITAKER\n\n The BIA considered whether a Mann Party member\nwould face harm from the Punjabi police outside of Punjab.\nThe BIA also noted the existence of tenant registration\nsystems in certain parts of India, and that there is little\ninformation-sharing across Indian states outside of criminal\ndefendant information. The Law Library of Congress 2012\nreport (Law Library Report)—upon which the BIA relied—\nstated that the police may pursue “high-profile militants”\noutside of Punjab, yet acknowledged that the Punjabi police\nmay wrongly place individuals involved in ordinary political\nactivities on chronic offender lists. As the BIA decision\nnotes, the Law Library Report also asserted that it is unlikely\nthat an individual Mann Party member who “simply holds\npro-Khalistani views” would be targeted.\n\n Although the BIA discussed the Law Library Report and\nits conclusion that the police will likely pursue only “high-\nprofile militants” outside of Punjab, it erred by failing to\naddress the potential harm Congress Party members, or other\nlocal authorities, might inflict upon Singh in a new state.\nInstead, the BIA’s analysis focused on whether the Punjabi\npolice would follow Singh outside of Punjab, based on his\npast political activity, ultimately concluding that he was not\nsufficiently high-profile for them to do so. This analysis\ndoes not account for the persecution he may face outside\nPunjab from local authorities, or other actors, based on his\nfuture political activities. “[W]here the applicant has\nestablished a well-founded fear of future persecution at the\nhands of the government, a rebuttable presumption arises\nthat the threat exists nationwide.” Melkonian v. Ashcroft,\n320 F.3d 1061, 1070 (9th Cir. 2003). The BIA failed to\napply that nationwide presumption to Singh’s asylum claim,\neven though it correctly afforded him the presumption of a\nwell-founded fear of persecution. Similarly, the BIA also\nfailed to specifically address Singh’s stated intent to\n\f SINGH V. WHITAKER 13\n\ncontinue proselytizing for his party wherever he went. Thus,\nthe BIA’s analysis regarding whether Singh could\nreasonably relocate was inadequate. See Knezevic v.\nAshcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)\n(remanding to the BIA the issue of reasonableness of internal\nrelocation due to its failure to account for several factors\noutlined in 8 C.F.R. § 1208.13(b)(3)).\n\n We hold that the BIA must conduct a reasoned analysis\nwith respect to a petitioner’s individualized situation to\ndetermine whether, in light of the persons or entities that\ncaused the past persecution, and the nature and extent of the\npersecution, there are one or more general or specific areas\nwithin the petitioner’s country of origin where he has no\nwell-founded fear of persecution and where it is reasonable\nto relocate, considering the factors set forth in 8 C.F.R.\n§ 1208.13(b)(3). Here, in determining Singh could safely\nand reasonably relocate “outside Punjab,” the BIA failed to\nconduct such an individualized analysis, and we remand this\nclaim to the BIA to determine anew whether relocation is\nappropriate for Singh. 2\n\n\n\n\n 2\n To the extent that Singh also seeks withholding of removal, we\nremand this issue to the BIA. To warrant withholding of removal, an\napplicant must show that “it is more probable than not that they will face\npersecution on account of a protected ground upon their deportation.”\nKaiser, 390 F.3d at 660. The BIA did not separate its analysis regarding\nSingh’s asylum claim from whether Singh warranted withholding of\nremoval. Because the BIA’s denial of Singh’s claim for withholding of\nremoval was based on its inadequate determination that Singh could\nsafely and reasonably relocate, we remand to the BIA to reconsider\nwhether Singh warrants withholding of removal.\n\f14 SINGH V. WHITAKER\n\nII. Humanitarian Asylum\n\n Regardless of whether the government has rebutted the\npresumption of an asylum applicant’s well-founded fear of\npersecution, the BIA may still grant humanitarian asylum.\nMatter of M-Z-M-R-, 26 I. & N. Dec. at 31. An applicant\nseeking humanitarian asylum must show either “compelling\nreasons for being unwilling or unable to return” to his\ncountry of nationality “arising out of the severity of the\n[applicant’s] past persecution,” or “a reasonable possibility\nthat he or she may suffer other serious harm upon removal\nto that country.” 8 C.F.R. § 1208.13(b)(1)(iii). The\napplicant bears the burden of proof to show that either form\nof humanitarian asylum is warranted. Matter of L-S-, 25 I.\n& N. Dec. 705, 710 (B.I.A. 2012). Humanitarian asylum\nbased on past persecution may be granted where the\npetitioner has suffered “atrocious forms of persecution.”\nKebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004)\n(quoting Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.\n1996)).\n\n Singh asserts that the BIA’s decision was too conclusory,\nand failed to consider all the relevant factors in determining\nwhere he qualified for humanitarian asylum under the\n“compelling reasons” prong. Singh did not previously raise\nthe brevity of the IJ’s or BIA’s analysis, either in his appeal\nbrief or in his motion to reconsider. Thus, the argument is\nunexhausted, and we lack jurisdiction to consider it. 3 See\nRojas-Garcia, 339 F.3d at 819.\n\n\n 3\n This argument also appears meritless. We have stated, “When\nnothing in the record or the BIA’s decision indicates a failure to consider\nall the evidence, a ‘general statement that the agency considered all the\nevidence before it’ may be sufficient.” Cole v. Holder, 659 F.3d 762,\n\f SINGH V. WHITAKER 15\n\n The BIA described the physical harm Singh suffered at\nthe hands of the police and Congress Party members, and\nnoted his multiple hospitalizations. The BIA then\ndetermined that Singh’s previous persecution did not rise to\nthe necessary level of atrociousness to warrant humanitarian\nasylum. We find the BIA’s denial of humanitarian asylum\nsupported by substantial evidence.\n\n Our case law demonstrates that extremely severe\npersecution is required to warrant humanitarian relief. See,\ne.g., Lal v. INS, 255 F.3d 998, 1009–10 (9th Cir. 2001)\n(finding unsupported the BIA’s denial of humanitarian\nasylum where applicant was detained, beaten and tortured\nwith knives and cigarettes, deprived of food and water,\nforced to watch sexual assault of wife, and had house and\nplace of worship burned, among other harms). While\nundoubtedly troubling, Singh’s past persecution does not\nrise to the level of severity in some other cases in which we\nhave denied petitions for review where the BIA has declined\nto extend humanitarian asylum. See, e.g., Hanna v. Keisler,\n506 F.3d 933, 936–37, 939 (9th Cir. 2007) (past persecution\ninsufficient where applicant was arrested, detained, and\ntortured for over a month, jailed and beaten for fifteen days,\nand threatened if he did not join a paramilitary organization).\nIn cases similar to Singh’s, we have consistently denied\nreview. See Marcu v. INS, 147 F.3d 1078, 1080, 1083 (9th\nCir. 1998) (holding BIA did not abuse its discretion in\ndenying applicant humanitarian asylum where police had\n\n\n771 (9th Cir. 2011) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 922\n(9th Cir. 2006)). The BIA’s decision records the Singh family’s past\npersecution at the outset, and notes that the “several threats and physical\nabuse” Singh suffered did not rise to the requisite level of harm. There\nis no evidence that the BIA “misstat[ed] the record” or “fail[ed] to\nmention highly probative or potentially dispositive evidence.” Id.\n\f16 SINGH V. WHITAKER\n\ndetained and beaten applicant on several occasions,\nthreatened to kill him, and gone to his house looking for him\nafter he left the country). Accordingly, we deny the petition\nfor review of this claim.\n\nIII. Convention Against Torture\n\n To obtain CAT relief, “a petitioner must show that\ntorture would be ‘inflicted by or at the instigation of or with\nthe consent or acquiescence of a public official or other\nperson acting in an official capacity.’” Afriyie, 613 F.3d at\n937 (quoting 8 C.F.R. § 208.18(a)(1)). The petitioner must\nshow that he “more likely than not” will be tortured if he\nreturns home. Id. Torture is defined as\n\n any act by which severe pain or suffering,\n whether physical or mental, is intentionally\n inflicted on a person for such purposes as\n obtaining from him or her or a third person\n information or a confession, punishing him or\n her for an act he or she or a third person has\n committed or is suspected of having\n committed, or intimidating or coercing him\n or her or a third person, or for any reason\n based on discrimination of any kind.\n\n8 C.F.R. § 1208.18(a)(1). Relevant considerations for a\nCAT claim include evidence of past torture inflicted upon\nthe applicant, evidence of safe internal relocation, evidence\nof mass violations of human rights within the country of\nremoval, and other pertinent country conditions. Nuru v.\nGonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (quoting\n8 C.F.R. § 1208.16(c)(3)). Evidence that the applicant\n“could relocate to a part of the country of removal where he\nor she is not likely to be tortured” is also a relevant\n\f SINGH V. WHITAKER 17\n\nconsideration. Kamalthas v. INS, 251 F.3d 1279, 1282 (9th\nCir. 2001).\n\n Although the BIA’s denial of Singh’s CAT claim relied\nin part on its determination that he could relocate, and we\nremand to the BIA for reconsideration of the latter\ndetermination in connection with his asylum and\nwithholding of removal claims, we see no reason to do the\nsame for his CAT claim. Singh points to the BIA’s “flawed”\nrelocation analysis, but the BIA’s insufficient analysis of\nthat issue does not establish that Singh carried his burden for\nhis CAT claim. See Ahmed v. Keisler, 504 F.3d 1183, 1199,\n1201 (9th Cir. 2007) (reversing IJ’s denial of asylum claim\nbut finding substantial evidence supported denial of CAT\nrelief). The ability to relocate is but one factor in the CAT\nanalysis. To prevail on his CAT claim, Singh would need to\nprove that he “more likely than not” would be tortured if he\nreturned home; the BIA did not need to disprove this\ncontention.\n\n Singh argues that his political activity would result in his\nbeing tortured, noting that it has led to his torture in the past,\nand that there is widespread torture of activists by the Indian\npolice. 4 We conclude, however, that there is substantial\nevidence supporting the denial of CAT protection. While\nSingh highlights general evidence that police across India\nare engaged in human rights violations, the evidence specific\nto Mann Party members is sparse. Notwithstanding Singh’s\n\n 4\n Singh hinges much of his argument on the fact that it would not\nmake sense for a pro-secession activist such as himself to relocate\noutside of Punjab. However, Singh did not previously raise the issue of\nwhether it was illogical for him to live elsewhere, and therefore it is not\nexhausted. Accordingly, we consider only whether there is substantial\nevidence that Singh would more likely than not be tortured, or if instead\nwe are “compelled to conclude to the contrary.” Ali, 637 F.3d at 1029.\n\f18 SINGH V. WHITAKER\n\npersonal experiences, the evidence in the record suggests\nMann Party members are targeted primarily when they are\nhigh-profile militants. Despite Singh’s documentary\nevidence regarding human rights concerns in India, we are\nnot compelled to conclude that Singh more likely than not\nwould be the subject of torture should he return to India.\nThat Singh suffered persecution in the past does not\nnecessarily mean he will be tortured in the future. See\nAhmed, 504 F.3d at 1201 (finding substantial evidence\nsupported denial of CAT relief where petitioner had been\nbeaten four times by the police but otherwise did not\ndemonstrate he would be tortured upon return to\nBangladesh, because it was not clear that past persecution\nrose to the level of torture). Therefore, we deny the petition\nfor review on Singh’s CAT claim.\n\n CONCLUSION\n\n We grant the petition for review of Singh’s asylum and\nwithholding of removal claims, and remand for the BIA to\nconduct a sufficiently individualized analysis of whether\nSingh could safely and reasonably relocate outside Punjab,\nand for reconsideration of whether he qualified for\nwithholding from removal. We deny the petition for Singh’s\nhumanitarian asylum and CAT claims.\n\n Each party shall bear its own costs on appeal.\n\n PETITION GRANTED AND REMANDED IN\nPART, DENIED IN PART.\n[END_CASE]", "role": "user" } ]
4,584,427		M. S. v. Lausd	2019-01-24	16-56472	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Dorothy W. Nelson and Kim McLane Wardlaw, Circuit Judges, and Robert W. Pratt,* District Judge.", "parties": "", "opinions": [{"author": "The Honorable Robert W. Pratt, United States District Judge for", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n M. S., a minor, by and through her No. 16-56472\n guardian ad litem R.H.,\n Plaintiff-Appellee, D.C. No.\n 2:15-cv-05819-\n v. CAS-MRW\n\n LOS ANGELES UNIFIED SCHOOL\n DISTRICT, a Public Entity, ORDER\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Christina A. Snyder, District Judge, Presiding\n\n Argued and Submitted December 4, 2018\n Pasadena, California\n\n Filed January 24, 2019\n\n Before: Dorothy W. Nelson and Kim McLane Wardlaw,\n Circuit Judges, and Robert W. Pratt,* District Judge.\n\n\n\n\n \n The Honorable Robert W. Pratt, United States District Judge for\nthe Southern District of Iowa, sitting by designation.\n\f2 M.S. V. LAUSD\n\n SUMMARY \n\n\n Individuals with Disabilities Education Act\n\n The panel filed an order affirming the district court’s\nmemorandum and order, which reversed an administrative\nlaw judge’s decision in an action brought under the\nIndividuals with Disabilities Education Act, asserting that a\nstudent was denied a free and appropriate public education.\n\n The panel agreed with the district court’s conclusion that\nthe student was denied a free and appropriate public\neducation because the Los Angeles Unified School District\nwas required to consider whether a residential placement\nshould be offered to her for educational purposes as part of\nher individualized education plan notwithstanding that\nanother county agency, the Department of Children and\nFamily Services, had residentially placed her for mental\nhealth treatment under state law, and pursuant to a juvenile\ncourt order. The panel agreed that the LAUSD had an\nindependent obligation to ensure that a continuum of\nalternative placements was available to meet the student’s\neducational needs and to consider whether a residential\nplacement was necessary for educational purposes and not\nmerely necessary quite apart from the learning process. The\npanel affirmed for the reasons stated in the district court’s\nmemorandum and decision, which the panel attached as an\nappendix to its order.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f M.S. V. LAUSD 3\n\n COUNSEL\n\nBarrett K. Green (argued) and Cristen R. Hintze, Littler\nMendelson P.C., Los Angeles, California; Mary Kellogg,\nAssistant General Counsel II; Devora Navera Reed, Chief\nAdministrative Law & Litigation Counsel; David\nHolmquist, General Counsel; Office of General Counsel,\nLos Angeles Unified School District, Los Angeles,\nCalifornia; for Defendant-Appellant.\n\nAllison Barret Holcombe (argued), Los Angeles, California;\nShawna L. Parks, Law Office of Shawna L. Parks, Los\nAngeles, California; Janeen Steel, Learning Rights Law\nCenter, Los Angeles, California; for Plaintiff-Appellee.\n\nSummer D. Dalessandro and Howard J. Fulfrost, Fagen\nFriedman & Fulfrost LLP, Carlsbad, California; D. Michael\nAmbrose and Elaine M. Yama-Garcia, California School\nBoards Association/Education Legal Alliance, West\nSacramento, California; for Amicus Curiae California\nSchool Boards Association’s Educational Legal Alliance.\n\nSelene Almazan-Altobelli, Ellen Saideman, and Alexis\nCasillas, Catherine Merino Reisman Counsel of Parent\nAttorneys and Advocates Inc., Towson, Maryland, for Amici\nCuriae Council of Parent Attorneys and Advocates Inc. and\nCalifornia Association for Parent-Child Advocacy.\n\nSuge Lee, Carly J. Munson, and Ben Conway, Disability\nRights California, Oakland, California, for Amicus Curiae\nDisability Rights California.\n\f4 M.S. V. LAUSD\n\n ORDER\n\n The Los Angeles Unified School District (LAUSD)\nappeals from the district court’s Memorandum and Order\nreversing the administrative law judge’s (ALJ) decision in\nan Individuals with Disabilities Education Act (IDEA)\naction asserting the denial of a Free and Appropriate Public\nEducation (FAPE). 20 U.S.C. §§ 1400–1482.\n\n The district court correctly concluded that M.S. was\ndenied a FAPE because LAUSD was required to consider\nwhether a residential placement should be offered to M.S.\nfor educational purposes as part of her individualized\neducation plan (IEP) notwithstanding that another county\nagency, the Department of Children and Family Services\n(DCFS), had residentially placed her for mental health\ntreatment under state law, and pursuant to a Juvenile Court\norder. In a thorough and well-reasoned opinion, the district\ncourt concluded that the LAUSD “had an independent\nobligation to ‘ensure that a continuum of alternative\nplacements [was] available to meet [M.S.’s educational]\nneeds,’ 34 C.F.R. § 300.115(a)—and to consider whether a\nresidential placement was ‘[] necessary for educational\npurposes’ and not merely ‘necessary quite apart from the\nlearning process.’” See Clovis Unified Sch. Dist. v. Cal.\nOffice of Admin. Hearings, 903 F.2d 635, 643 (9th Cir.\n1990).\n\n We agree with the district court’s conclusion, and affirm\nfor the reasons stated in the district court’s Memorandum\nand Decision, reissued January 9, 2019, and attached hereto\nas Appendix A.\n\n AFFIRMED.\n\f M.S. V. LAUSD 5\n\n\n\n\nAppendix A\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 1 of 25 Page ID #:2366\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\n 3UHVHQW\u001d\u00037KH\u0003+RQRUDEOH &+5,67,1$\u0003$\u0011\u000361<'(5\n\n\n 'HSXW\\\u0003&OHUN &RXUW\u00035HSRUWHU\u0003\u0012\u00035HFRUGHU 7DSH\u00031R\u0011\n $WWRUQH\\V\u00033UHVHQW\u0003IRU\u00033ODLQWLIIV\u001d $WWRUQH\\V\u00033UHVHQW\u0003IRU\u0003'HIHQGDQWV\u001d\n 1\u0012$ 1\u0012$\n 3URFHHGLQJV\u001d\u0003 &255(&7('\u00030(025$1'80\u0003$1'\u000325'(5\u000321\u0003$33($/\n )520\u0003$'0,1,675$7,9(\u0003/$:\u0003-8'(¶6\u0003'(&,6,21\n\n 2Q\u00036HSWHPEHU\u0003\u0014\u0015\u000f\u0003\u0015\u0013\u0014\u0019\u000f\u0003WKH\u0003&RXUW\u0003LVVXHG\u0003DQ\u0003RUGHU\u0003LQ\u0003WKH\u0003DERYH\u0010FDSWLRQHG\u0003FDVH\nUHYHUVLQJ\u0003LQ\u0003SDUW\u0003WKH\u0003DGPLQLVWUDWLYH\u0003ODZ\u0003MXGJH¶V\u0003GHFLVLRQ\u0011\u0003\u00036HH\u0003&DVH\u00031R\u0011\u0003&9\u0003\u0014\u0018\u0010\u0018\u001b\u0014\u001c\n&$6\u000f\u0003'NW\u0011\u00031R\u0011\u0003\u0017\u001a\u0011\u0003\u00037KH\u0003&RXUW\u0003LVVXHV\u0003WKH\u0003IROORZLQJ\u0003FRUUHFWHG\u0003RUGHU\u0011\n\n,\u0011 ,1752'8&7,21\n\n 7KLV\u0003FDVH\u0003DULVHV\u0003XQGHU\u0003WKH\u0003,QGLYLGXDOV\u0003ZLWK\u0003'LVDELOLWLHV\u0003(GXFDWLRQ\u0003$FW\u0003\u000bWKH\n³,'($´\f\u000f\u0003\u0015\u0013\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0017\u0013\u0013\u000f\u0003HW\u0003VHT\u0011\u0003\u00032Q\u0003-XO\\\u0003\u0016\u0014\u000f\u0003\u0015\u0013\u0014\u0018\u000f\u0003SODLQWLII\u00030\u00116\u0011\u000f\u0003D\u0003PLQRU\u000f\u0003E\\\u0003DQG\nWKURXJK\u0003KHU\u0003XDUGLDQ\u0003$G\u0003/LWHP\u000f\u00035\u0011+\u0011\u0003\u000bFROOHFWLYHO\\\u000f\u0003³SODLQWLII´\u0003RU\u0003³0\u00116\u0011´\f\u000f\u0003ILOHG\u0003VXLW\nDJDLQVW\u0003GHIHQGDQW\u0003/RV\u0003$QJHOHV\u00038QLILHG\u00036FKRRO\u0003'LVWULFW\u0003\u000b³WKH\u0003'LVWULFW´\u0003RU\u0003³/$86'´\f\u000f\nDOOHJLQJ\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u0003DQG\u0003VHHNLQJ\u0003UHYHUVDO\u0003RI\u0003WKH\u0003$GPLQLVWUDWLYH\u0003/DZ\u0003-XGJH¶V\n\u000b³$/-´\f\u00030D\\\u0003\u0017\u000f\u0003\u0015\u0013\u0014\u0018\u0003GHFLVLRQ\u0003DV\u0003WR\u0003WKUHH\u0003LVVXHV\u0011\u0014\n\n 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\u00030\u00116\u0011\u0003SUHVHQWHG\u0003D\u0003WRWDO\u0003RI\u0003WZHOYH\u0003LVVXHV\u0003WR\u0003WKH\u0003$/-\u000f\u0003DQG\u0003WKH\u0003'LVWULFW\u0003SUHYDLOHG\u0003RQ\n \u0014\n\nDOO\u0003EXW\u0003RQH\u0003RI\u0003WKHVH\u0003WZHOYH\u0003LVVXHV\u0011\u0003\u0003+HUH\u000f\u0003DV\u0003GLVFXVVHG\u0003LQ\u0003JUHDWHU\u0003GHWDLO\u0003infra\u000f\u00030\u00116\u0011\u0003RQO\\\nVHHNV\u0003UHYLHZ\u0003DQG\u0003UHYHUVDO\u0003RI\u0003WKUHH\u0003RI\u0003WKH\u0003HOHYHQ\u0003LVVXHV\u0003RQ\u0003ZKLFK\u0003WKH\u0003$/-\u0003UXOHG\u0003LQ\u0003IDYRU\u0003RI\nWKH\u0003'LVWULFW\u0011\u0003\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 2 of 25 Page ID #:2367\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 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81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n$GGLWLRQDOO\\\u000f\u0003VLQFH\u0003WKH\u0003IDFWXDO\u0003ILQGLQJV\u0003HQFRPSDVV\u0003PDWWHUV\u0003QR\u0003ORQJHU\u0003SXUVXHG\u0003LQ\u0003WKLV\nDSSHDO\u000f\u0003DQG\u0003WR\u0003SURYLGH\u0003FRQWH[W\u0003IRU\u0003WKH\u0003&RXUW¶V\u0003GHFLVLRQ\u000f\u0003WKH\u0003&RXUW\u0003VXPPDUL]HV\u0003WKH\u0003UHOHYDQW\nIDFWV\u0011\n\n 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&,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0017\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 5 of 25 Page ID #:2370\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n %\u0011 0DUFK\u0003\u0015\u0013\u0014\u0016\u00035HOHDVH\u0003IURP\u0003-XYHQLOH\u0003+DOO\u0003DQG\u00036XEVHTXHQW\u00033ODFHPHQW\n E\\\u0003'&)6\n\n 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7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n 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$OWKRXJK\u0003WKH\u0003'LVWULFW\u0003KDG\u0003UHFHLYHG\u0003'U\u0011\u0003/DUJH¶V\u0003QHXURSV\\FKRORJLFDO\u0003DVVHVVPHQW\u000f\u0003WKH\n,(3\u0003WHDP\u0003GLG\u0003QRW\u0003GLVFXVV\u0003RU\u0003UHYLHZ\u0003WKH\u0003DVVHVVPHQW\u0011\u0003\u00038OWLPDWHO\\\u000f\u0003LW\u0003ZDV\u0003GHFLGHG\u0003WKDW\u00030\u00116\u0011\nZRXOG\u0003UHPDLQ\u0003DW\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003DQG\u00039LVWD\u00036FKRRO\u0003XQWLO\u0003'&)6\u0003GHFLGHG\u0003RQ\u0003D\u0003QHZ\nUHVLGHQWLDO\u0003SODFHPHQW\u0011\u0003\u00030\u00116\u0011\u0003ZDV\u0003QRW\u0003RIIHUHG\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003DV\u0003SDUW\u0003RI\u0003KHU\u0003,(3\u0011\u0003\u00037KH\nHGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003DJUHHG\u0003WR\u0003WKH\u0003LPSOHPHQWDWLRQ\u0003RI\u0003WKH\u0003,(3\u0003EXW\u0003GLVDJUHHG\u0003WKDW\u0003LW\nFRQVWLWXWHG\u0003D\u0003)$3(\u0011\n\n )\u0011 -DQXDU\\\u0003\u0015\u0013\u0014\u0018\u00030RYHPHQW\u0003WR\u0003D\u0003/HVV\u00035HVWULFWLYH\u0003)DFLOLW\\\n\n ,Q\u0003RU\u0003DERXW\u0003PLG\u0010-DQXDU\\\u0003\u0015\u0013\u0014\u0018\u000f\u0003'&)6\u0003UHPRYHG\u00030\u00116\u0011\u0003IURP\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003DQG\nSODFHG\u0003KHU\u0003LQ\u0003D\u0003OHVV\u0003UHVWULFWLYH\u0003IDFLOLW\\\u0003RXWVLGH\u0003WKH\u0003ERXQGDULHV\u0003RI\u0003WKH\u0003'LVWULFW\u0011\u0003\u0003$OPRVW\nLPPHGLDWHO\\\u000f\u00030\u00116\u0011\u0003UDQ\u0003DZD\\\u0003IURP\u0003WKLV\u0003IDFLOLW\\\u0011\u0003\u0003+HU\u0003ZKHUHDERXWV\u0003ZHUH\u0003XQNQRZQ\u0003IRU\u0003IRXU\nGD\\V\u0003DQG\u0003VKH\u0003GLG\u0003QRW\u0003DWWHQG\u0003VFKRRO\u0003GXULQJ\u0003WKLV\u0003WLPH\u0011\u0003\u0003(YHQWXDOO\\\u000f\u0003VKH\u0003ZDV\u0003ORFDWHG\u0003DQG\nUHWXUQHG\u0003E\\\u0003SROLFH\u0003WR\u0003WKH\u0003FDUH\u0003RI\u0003'&)6\u0011\u0003\u0003\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u001a\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 8 of 25 Page ID #:2373\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n '&)6\u0003WKHQ\u0003PDGH\u0003DQ\u0003HPHUJHQF\\\u0003SODFHPHQW\u0003IRU\u00030\u00116\u0011\u0003LQ\u0003'HOLOX\u0003$FKLHYHPHQW\u0003+RPH\u000f\nD\u0003WHPSRUDU\\\u0003IDFLOLW\\\u0011\u0003\u0003:KLOH\u0003WKH\u0003IDFLOLW\\\u0003LV\u0003GHVLJQHG\u0003IRU\u0003WHPSRUDU\\\u0003SODFHPHQW\u000f\u00030\u00116\u0011\nUHPDLQHG\u0003WKHUH\u0003IRU\u0003\u0016\u0013\u0003GD\\V\u0011\u0003\u0003'&)6\u0003HYHQWXDOO\\\u0003SODFHG\u00030\u00116\u0011\u0003LQ\u0003'LDPRQGDOH\u000f\u0003D\u0003OHYHO\u0003\u0014\u0015\nUHVLGHQWLDO\u0003/&,\u0003ZLWKLQ\u0003WKH\u0003ERXQGDULHV\u0003RI\u0003WKH\u0003'LVWULFW\u0011\u0003\u0003'LDPRQGDOH\u0003ZDV\u0003DOVR\u0003D\u0003OHVV\nUHVWULFWLYH\u0003HQYLURQPHQW\u0003WKDQ\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0011\u0003\u0003:KLOH\u00030\u00116\u0011\u0003ZDV\u0003UHVLGLQJ\u0003DW\u0003'HOLOX\u0003DQG\n'LDPRQGDOH\u000f\u00030\u00116\u0011¶V\u0003\u0003DWWRUQH\\V\u0003\u0003ILOHG\u0003D\u0003³VWD\\\u0003SXW´\u0003PRWLRQ\u000f\u0003SXUVXDQW\u0003WR\u0003\u0015\u0013\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0017\u0014\u0018\u000bM\f\u000f\nWR\u0003NHHS\u00030\u00116\u0011\u0003HQUROOHG\u0003DW\u0003WKH\u00039LVWD\u00036FKRRO\u000f\u0003ZKLFK\u0003ZDV\u0003WKH\u0003HGXFDWLRQDO\u0003SODFHPHQW\u0003VWDWHG\u0003RQ\nKHU\u0003ODWHVW\u0003,(3\u0011\u0003\u00031RWDEO\\\u000f\u0003ZKLOH\u0003WKH\u0003,(3\u0003FDOOHG\u0003IRU\u0003HGXFDWLRQDO\u0003SODFHPHQW\u0003DW\u0003WKH\u00039LVWD\nSchool\u000f\u0003LW\u0003GLG\u0003QRW\u0003FDOO\u0003IRU\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003FRPSRQHQW\u0003DW\u0003WKH\u00039LVWD\u0003Facility\u0011\u0003\u0003,QGHHG\u000f\nQRQH\u0003RI\u00030\u00116\u0011¶V\u0003,(3V\u0003UHIOHFWHG\u0003DQ\\\u0003QHHG\u0003IRU\u0003D\u0003SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\nOLNH\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0011\n\n,9\u0011 $'0,1,675$7,9(\u0003352&((',16\n\n 2Q\u00031RYHPEHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u000f\u0003VKRUWO\\\u0003DIWHU\u0003KHU\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u000f\u00030\u00116\u0011\nLQLWLDWHG\u0003D\u0003GXH\u0003SURFHVV\u0003KHDULQJ\u0003EHIRUH\u0003WKH\u00032IILFH\u0003RI\u0003$GPLQLVWUDWLYH\u0003+HDULQJV\u0003\u000b³2$+´\f\u0011\u0003\n6KH\u0003DOOHJHG\u0003WKDW\u0003WKH\u0003'LVWULFW\u0003IDLOHG\u0003WR\u0003SURYLGH\u0003KHU\u0003ZLWK\u0003D\u0003)$3(\u000f\u0003LQ\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u000f\nRQ\u0003WZHOYH\u0003VHSDUDWH\u0003JURXQGV\u0011\u0003\u0003)ROORZLQJ\u0003D\u0003VHYHQ\u0010GD\\\u0003KHDULQJ\u0003ZLWK\u0003QXPHURXV\u0003ZLWQHVVHV\u000f\nWKH\u0003$/-\u0003FRQFOXGHG\u0003WKDW\u0003WKH\u0003'LVWULFW\u0003³SURYLGHG\u0003>0\u00116\u0011@\u0003D\u0003)$3(\u0003LQ\u0003DOO\u0003DVSHFWV\u0003DW\u0003LVVXH\u0003LQ\u0003WKLV\nFDVH\u0003EXW\u0003RQH´²QDPHO\\\u000f\u0003WKH\u0003$/-\u0003FRQFOXGHG\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\u0003IDLOXUH\u000f\u0003GXULQJ\u0003WKH\u00032FWREHU\n\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u000f\u0003WR\u0003FRQVLGHU\u0003'U\u0011\u00030DU\\\u0003/DUJH¶V\u0003QHXURSV\\FKRORJLFDO\u0003DVVHVVPHQW\nUHSRUW\u0003SHUWDLQLQJ\u0003WR\u00030\u00116\u0011\u0003FRQVWLWXWHG\u0003D\u0003SURFHGXUDO\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u0003ZKLFK\u0003GHSULYHG\n0\u00116\u0011\u0003RI\u0003D\u0003)$3(\u0011\u0003\u00036HH\u0003$5\u0003\u0014\u001a\u0018\u0018\u0003\u000b$/-¶V\u0003GLVFXVVLRQ\u0003RI\u00036WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0019\f\f\u0011\n\n 2I\u0003WKH\u0003HOHYHQ\u0003LVVXHV\u0003RQ\u0003ZKLFK\u0003WKH\u0003$/-\u0003UXOHG\u0003LQ\u0003IDYRU\u0003RI\u0003WKH\u0003'LVWULFW\u000f\u00030\u00116\u0011\u0003DSSHDOV\nRQO\\\u0003WKH\u0003IROORZLQJ\u0003WKUHH\u0003LVVXHV\u001d\n\n\n\n\n A. Whether the District deprived Student of a FAPE by\n reason of the following:\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0018\f\u001d IDLOLQJ\u0003WR\u0003GLVFXVV\u0003SODFHPHQW\u0003DW\u0003D\n UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003DW\u0003WKH\n 2FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u001e\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u001b\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 9 of 25 Page ID #:2374\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u001a\f\u001d SUHGHWHUPLQLQJ\u0003WKH\u0003TXHVWLRQ\u0003RI\n SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\n IDFLOLW\\\u0003DW\u0003WKH\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\n PHHWLQJ\u001e\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0014\u0014\f\u001d IDLOLQJ\u0003WR\u0003RIIHU\u0003SODFHPHQW\u0003DW\u0003D\n UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003LQ\u0003WKH\n )HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003DQG\u00032FWREHU\n \u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJV\u0011\n\n $V\u0003WR\u0003WKHVH\u0003WKUHH\u0003LVVXHV\u000f\u0003WKH\u0003$/-\u0003FRQFOXGHG\u0003WKDW\u0003RQO\\\u0003'&)6\u0003³ZDV\u0003OHJDOO\\\nUHVSRQVLEOH\u0003WR\u0003SURYLGH\u0003DQ\u0003DSSURSULDWH\u0003SODFHPHQW\u0003IRU\u0003>0\u00116\u0011¶V@\u0003PHQWDO\u0003KHDOWK\u0003QHHGV\u000f\u0003DQG\u0003WKH\nHYLGHQFH\u0003ZDV\u0003XQGLVSXWHG\u0003WKDW\u0003SODFHPHQW\u0003LQ\u0003WKH\u0003ORFNHG\u00039LVWD\u0003UHVLGHQFH\u0003ZDV\u0003DSSURSULDWH\u0011´\u0003\n$5\u0003\u0014\u001a\u0018\u0017\u0003\u000b$/-¶V\u00036XPPDU\\\u0003RI\u0003'HFLVLRQ\f\u0011\u0003\u00037KHUHIRUH\u000f\u0003WKH\u0003'LVWULFW\u0003³KDG\u0003QR\u0003REOLJDWLRQ\u0003WR\nRIIHU\u0003WKH\u0003ORFNHG\u00039LVWD\u0003UHVLGHQFH\u0003DV\u0003SDUW\u0003RI\u0003LWV\u0003)$3(\u0003RIIHU\u0003WR\u0003>0\u00116@\u000f\u0003EHFDXVH\u0003>'&)6@\u0003KDG\nDOUHDG\\\u0003SODFHG\u0003>KHU@\u0003WKHUH\u000f\u0003LQ\u0003FRPSOLDQFH\u0003ZLWK\u0003WKH\u0003FRXUW\u0003RUGHU\u0003WKDW\u0003LW\u0003SURYLGH\u0003D\u0003UHVLGHQWLDO\nSODFHPHQW\u0003WR\u0003>0\u00116@\u000f\u0003DQG\u0003IXUWKHU\u0003LQ\u0003FRPSOLDQFH\u0003ZLWK\u0003LWV\u0003RZQ\u0003OHJDO\u0003REOLJDWLRQ\u0003WR\u0003SURYLGH\u0003D\nSODFHPHQW\u0003WKDW\u0003ZDV\u0003DSSURSULDWH\u0003IRU\u0003>0\u00116\u0011¶V@\u0003PHQWDO\u0003KHDOWK\u0003QHHGV\u0011´\u0003\u0003$5\u0003\u0014\u001a\u0018\u0018\u0003\u000b$/-¶V\n6XPPDU\\\u0003RI\u0003'HFLVLRQ\f\u0011\n\n9\u0011 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&,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0014\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 12 of 25 Page ID #:2377\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 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2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 13 of 25 Page ID #:2378\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n >7@KH\u0003FRQJUHVVLRQDO\u0003HPSKDVLV\u0003XSRQ\u0003IXOO\u0003SDUWLFLSDWLRQ\u0003RI\n FRQFHUQHG\u0003SDUWLHV\u0003WKURXJKRXW\u0003WKH\u0003GHYHORSPHQW\u0003RI\u0003WKH\u0003,(3\u000f\u0003DV\n ZHOO\u0003DV\u0003WKH\u0003UHTXLUHPHQWV\u0003WKDW\u0003VWDWH\u0003DQG\u0003ORFDO\u0003SODQV\u0003EH\u0003VXEPLWWHG\n WR\u0003WKH\u00036HFUHWDU\\\u0003IRU\u0003DSSURYDO\u000f\u0003GHPRQVWUDWHV\u0003WKH\u0003OHJLVODWLYH\n FRQYLFWLRQ\u0003WKDW\u0003adequate compliance with the procedures\n prescribed would in 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RUGHU>@\u0003\u0011\u0003\u0011\u0003\u0011\u0003RQ\u0003$SULO\u0003\u0014\u001b\u000f\u0003\u0015\u0013\u0014\u0016\u000f\u0003'&)6\u0003SODFHG\u0003>0\u00116@\u0003DW\u00039LVWD\u0003'HO\n 0DU\u0011\u0003\u00037KHUH\u0003LV\u0003QR\u0003GLVSXWH\u0003WKDW\u0003'&)6\u0003PDGH\u0003WKH\u0003residential\n placement\u0003GHFLVLRQ\u0003IRU\u0003>0\u00116\u0011@\u0003\u0011\u0003\u0011\u0003\u0011\u0003EHFDXVH\u0003'&)6\u0003ZDV\u0003RUGHUHG\n E\\\u0003WKH\u0003FRXUW\u0003WR\u0003SURYLGH\u0003SODFHPHQW\u0003VHUYLFHV\u0011\u0003\u0003$V\u0003VXFK\u000f\u0003WKH\n 'LVWULFW\u0003ZDV\u0003QRW\u0003REOLJDWHG\u0003WR\u0003FRQYHQH\u0003DQ\u0003,(3\u0003PHHWLQJ\u0003WR\u0003RIIHU\u0003D\n residential placement EHFDXVH\u0003>0\u00116\u0011@\u0003ZDV\u0003DOUHDG\\\u0003LQ\u0003D\n residential placement\u0003SXUVXDQW\u0003WR\u0003D\u0003MXYHQLOH\u0003FRXUW\u0003SODFHPHQW\n RUGHU\u0003WKDW\u0003SODFHG\u0003KHU\u0003LQ\u0003WKH\u0003FDUH\u000f\u0003FXVWRG\\\u000f\u0003DQG\u0003FRQWURO\u0003RI\u0003'&)6\u0011\n\n'¶V\u00032SHQLQJ\u0003%U\u0011\u0003DW\u0003\u0015\u0014\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0017\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 15 of 25 Page ID #:2380\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\n HQHUDOO\\\u000f\u0003LQ\u0003RUGHU\u0003WR\u0003GHWHUPLQH\u0003ZKHWKHU\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003XQGHU\u0003WKH\u0003,'($\u0003LV\nQHFHVVDU\\\u0003WR\u0003SURYLGH\u0003D\u0003VWXGHQW\u0003D\u0003)$3(\u000f\u0003WKH\u0003UHOHYDQW\u0003DQDO\\VLV\u0003LQ\u0003WKH\u00031LQWK\u0003&LUFXLW\u0003³PXVW\nIRFXV\u0003RQ\u0003ZKHWKHU\u0003>WKH\u0003UHVLGHQWLDO@\u0003SODFHPHQW\u0003PD\\\u0003EH\u0003FRQVLGHUHG\u0003QHFHVVDU\\\u0003for\neducational 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\u0003\u00033XUVXDQW\u0003WR\u0003\u0016\u0017\u0003&\u0011)\u00115\u0011\u0003\u0003\u0016\u0013\u0013\u0011\u0014\u0013\u0017\u000f\u0003³>Z@KHQ\u0003D\u0003VWXGHQW\u0003UHTXLUHV\u0003D\u0003UHVLGHQWLDO\nSODFHPHQW\u000f\u0003WKH\u0003,'($\u0003UHTXLUHV\u0003D\u0003>VFKRRO@\u0003GLVWULFW\u0003WR\u0003SD\\\u0003IRU\u0003UHDVRQDEOH\u000f\u0003non-medical\nH[SHQVHV\u0003DVVRFLDWHG\u0003ZLWK\u0003WKDW\u0003SODFHPHQW\u0011´\u0003\u0003$VKODQG\u000f\u0003\u0018\u001b\u001a\u0003)\u0011\u0016G\u0003DW\u0003\u0014\u0014\u001b\u0017\u0003\u000bHPSKDVLV\u0003DGGHG\f\n\u000bFLWLQJ\u0003\u0016\u0017\u0003&\u0011)\u00115\u0011\u0003\u0003\u0016\u0013\u0013\u0011\u0014\u0013\u0017\f\u0003\u000b³,I\u0003SODFHPHQW\u0003LQ\u0003D\u0003SXEOLF\u0003RU\u0003SULYDWH\u0003UHVLGHQWLDO\u0003SURJUDP\u0003LV\nQHFHVVDU\\\u0003WR\u0003SURYLGH\u0003VSHFLDO\u0003HGXFDWLRQ\u0003DQG\u0003UHODWHG\u0003VHUYLFHV\u0003WR\u0003D\u0003FKLOG\u0003ZLWK\u0003D\u0003GLVDELOLW\\\u000f\u0003WKH\nSURJUDP\u000f\u0003LQFOXGLQJ\u0003QRQ\u0010PHGLFDO\u0003FDUH\u0003DQG\u0003URRP\u0003DQG\u0003ERDUG\u000f\u0003PXVW\u0003EH\u0003DW\u0003QR\u0003FRVW\u0003WR\u0003WKH\nSDUHQWV\u0003RI\u0003WKH\u0003FKLOG\u0011´\f\u0011\u0003\n\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0018\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 16 of 25 Page ID #:2381\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\u000bQRWLQJ\u0003WKDW\u0003ZKHUH\u0003SDUWLHV\u0003DJUHHG\u0003WKDW\u0003VWXGHQW\u0003UHTXLUHG\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003IRU\nHGXFDWLRQDO\u0003SXUSRVHV\u000f\u0003WKH\u0003³,(3\u000f\u0003LQFOXGLQJ\u0003D\u0003UHVLGHQWLDO\u0003SURJUDP\u000f\u0003VPDOO\u0003FODVV\u0003VL]HV\u000f\u0003DQG\nWKHUDS\\\u000f\u0003ZDV\u0003DSSURSULDWH\u0003IRU\u0003>WKH\u0003VWXGHQW@´\f\u001e\u0003FI\u0011\u0003%G\u0011\u0003RI\u0003(GXF\u0011\u0003RI\u00030RQWJRPHU\\\u0003&W\\\u0011\u0003Y\u0011\u0003%UHWW\n<\u000f\u0003\u0014\u0018\u0018\u0003)\u0011\u0016G\u0003\u0018\u0018\u001a\u0003\u000b\u0017WK\u0003&LU\u0011\u0003\u0014\u001c\u001c\u001b\f\u0003\u000b+DPLOWRQ\u000f\u0003-\u0011\u000f\u0003GLVVHQWLQJ\f\u0003\u000bVWDWLQJ\u0003WKDW\u0003WKH\u0003³,(3¶V\u0003PRVW\nVHULRXV\u0003IODZ´\u0003LQ\u0003WKDW\u0003FDVH\u0003ZDV\u0003WKDW\u0003LW\u0003³IDLO>HG@\u0003WR\u0003UHTXLUH\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003VR\u0003WKDW\n>WKH\u0003VWXGHQW\u0003FRXOG@\u0003PDNH\u0003HGXFDWLRQDO\u0003SURJUHVV´\f\u0011\n\n +HUH\u000f\u0003WKH\u0003$/-\u0003UHMHFWHG\u00030\u00116\u0011¶V\u0003DUJXPHQW\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\u0003IDLOXUH\u0003WR\u0003GLVFXVV\u0003RU\nFRQVLGHU\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003IRU\u0003HGXFDWLRQDO\u0003UHDVRQV\u0003FRQVWLWXWHG\u0003D\u0003SURFHGXUDO\nYLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u0003DQG\u0003WKHUHIRUH\u0003GHQLHG\u00030\u00116\u0011\u0003D\u0003)$3(\u0011\u0003\u00036SHFLILFDOO\\\u000f\u0003WKH\u0003$/-\u0003IRXQG\nWKDW\u0003WKH\u0003'LVWULFW\u0003³KDG\u0003QR\u0003REOLJDWLRQ\u0003WR\u0003RIIHU\u0003WKH\u0003ORFNHG\u00039LVWD\u0003UHVLGHQFH\u0003DV\u0003SDUW\u0003RI\u0003LWV\u0003)$3(\nRIIHU\u0003WR\u0003>0\u00116\u0011@\u000f\u0003EHFDXVH\u0003>'&)6@\u0003KDG\u0003DOUHDG\\\u0003SODFHG\u0003>0\u00116\u0011@\u0003WKHUH\u000f\u0003LQ\u0003FRPSOLDQFH\u0003ZLWK\u0003WKH\nFRXUW\u0003RUGHU\u0003WKDW\u0003LW\u0003SURYLGH\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003WR\u0003>0\u00116\u0011@\u000f\u0003DQG\u0003IXUWKHU\u0003LQ\u0003FRPSOLDQFH\nZLWK\u0003LWV\u0003RZQ\u0003OHJDO\u0003REOLJDWLRQ\u0003WR\u0003SURYLGH\u0003D\u0003SODFHPHQW\u0003WKDW\u0003ZDV\u0003DSSURSULDWH\u0003IRU\u0003>0\u00116\u0011¶V@\nPHQWDO\u0003KHDOWK\u0003QHHGV\u0011´\u0003\u0003$5\u0003\u0014\u001a\u0018\u0017\u0003\u000b$/-¶V\u00036XPPDU\\\u0003RI\u0003'HFLVLRQ\f\u0011\n\n 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7KLUG\u000f\u0003WKH\u0003'LVWULFW\u0003DUJXHV\u0003WKDW\u0003WKHUH\u0003ZDV\u0003QR\u0003SUHGHWHUPLQDWLRQ\u0003UHJDUGLQJ\u00030\u00116\u0011¶V\nSODFHPHQW\u0003EHFDXVH\u0003WKH\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003ZDV\u0003GHYHORSHG\u0003ZLWK\u0003³substantial input IURP\nWKH\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003\u0011\u0003\u0011\u0003\u0011\u0003DQG\u00030\u00116\u0011¶V\u0003DWWRUQH\\V\u000f\u0003'HDQ\u0003&RQNOLQ\u0003DQG\u0003(GLWK\u00030DGULG\u000f\nZKLFK\u0003LV\u0003GRFXPHQWHG\u0003LQ\u0003WKH\u0003,(3\u0003PHHWLQJ\u0003WUDQVFULSW\u0011´\u0003\u0003'¶V\u00032SHQLQJ\u0003%U\u0011\u0003DW\u0003\u0014\u001b\u0003\u000bFLWLQJ\u0003$5\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0013\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 21 of 25 Page ID #:2386\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\u0014\u0019\u0013\u0017\u0010\u0014\u0019\u001b\u001b\f\u0011\u0003\u0003$W\u0003ERWWRP\u000f\u0003WKH\u0003'LVWULFW\u0003FRQWHQGV\u0003WKDW\u0003LW\u0003GLG\u0003QRW\u0003SUHGHWHUPLQH\u00030\u00116\u0011¶V\nSODFHPHQW\u0003EHFDXVH\u0003LW\u0003VDWLVILHG\u0003WKH\u0003UHTXLUHPHQW\u0003RI\u0003PHDQLQJIXO\u0003SDUHQWDO\u0003LQYROYHPHQW\u0003DW\u0003WKH\n,(3\u0003PHHWLQJ\u0003E\\\u0003DOORZLQJ\u00030\u00116\u0011¶V\u0003UHSUHVHQWDWLYHV\u0003WR\u0003WDNH\u0003SDUW\u0003LQ\u0003D\u0003GLVFXVVLRQ\u0003RI\u0003RWKHU\nHGXFDWLRQDO\u0003SODFHPHQW\u0003RSWLRQV\u000f\u0003QRW\u0003LQFOXGLQJ\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003FHQWHU\u0011\u0003\u0003,G\u0011\u0003DW\u0003\u0014\u0014\u0011\n\u000b³>7@KHUH\u0003ZDV\u0003D\u0003IXOO\u0003GLVFXVVLRQ\u0003UHJDUGLQJ\u0003\u0003>0\u00116\u0011¶V@\u0003FRQWLQXHG\u0003SODFHPHQW\u0003LQ\u0003WKH\u0003>QRQSXEOLF\nVFKRRO@\u0003\u0011\u0003\u0011\u0003\u0011\u0003RU\u0003SRVVLEO\\\u0003SXEOLF\u0003VFKRRO\u0003SODFHPHQW\u0003\u0011\u0003\u0011\u0003\u0003\u0011\u0003\u0011\u0003$OO\u0003RI\u0003WKHVH\u0003RSWLRQV\u0003ZHUH\u0003IXOO\\\nGLVFXVVHG\u0003E\\\u0003WKH\u0003,(3\u0003WHDP\u000f\u0003LQFOXGLQJ\u0003\u0011\u0003\u0011\u0003\u0011\u00030\u00116\u0011¶V\u0003WZR\u0003DWWRUQH\\V\u0003\u0011\u0003\u0011\u0003\u0011\u0003\u0011\u0003DQG\u0003HGXFDWLRQDO\u0003ULJKWV\nKROGHU\u0003\u0011\u0003\u0011\u0003\u0011\u0003\u0011´\f\u0011\u0003\u0003+RZHYHU\u000f\u0003WKH\u0003'LVWULFW\u0003FDQQRW\u0003GHIHDW\u0003D\u0003ILQGLQJ\u0003RI\u0003SUHGHWHUPLQDWLRQ\u0003E\\\nVLPSO\\\u0003DOORZLQJ\u00030\u00116\u0011¶V\u0003UHSUHVHQWDWLYHV\u0003WR\u0003DWWHQG\u0003DQG\u0003VSHDN\u0003DW\u0003DQ\u0003,(3\u0003PHHWLQJ\u0011\u0003\u00037KH\u0003,'($\n³H[SOLFLWO\\\u0003LPDJLQHV\u0003WKDW\u0003HDFK\u0003FKLOG\u0003ZLWK\u0003VSHFLDO\u0003QHHGV\u0003ZLOO\u0003UHFHLYH\u0003DQ\u0003DSSURSULDWH\nHGXFDWLRQ\u0003WKURXJK\u0003WKH\u0003FROODERUDWLYH\u0003SURFHVV\u0003EHWZHHQ\u0003WKH\u0003>'LVWULFW@\u0003DQG\u0003WKH\u0003SDUHQW\u000bV\f\u000f´\u0003DQG\nLW\u0003³ZRXOG\u0003UXQ\u0003FRQWUDU\\\u0003WR\u0003WKH\u0003VSLULW\u0003RI\u0003WKH\u0003,'($\u0003WR\u0003FRQFOXGH\u0003WKDW\u0003WKH\u0003>'LVWULFW@\u0003LV\u0003SHUPLWWHG\nWR\u0003PDNH\u0003VRPH\u0003VXEVWDQWLYH\u0003FKRLFHV\u0003DERXW\u0003WKH\u0003FKLOG¶V\u0003HGXFDWLRQDO\u0003QHHGV\u0003XQLODWHUDOO\\´²VXFK\nDV\u0003D\u0003GHWHUPLQDWLRQ\u0003UHJDUGLQJ\u0003KHU\u0003QHHG\u0003\u000bRU\u0003ODFN\u0003WKHUHRI\f\u0003IRU\u0003DQ\u0003HGXFDWLRQDOO\\\u0010UHODWHG\nUHVLGHQWLDO\u0003SODFHPHQW²VLPSO\\\u0003³EHFDXVH\u0003LW\u0003KDV\u0003PDGH\u0003VRPH\u0003RWKHU\u0003WKUHVKROG\u0003DPRXQW\u0003RI\nFRQFOXVLRQV\u0003LQ\u0003FRQVXOWDWLRQ\u0003ZLWK\u0003WKH\u0003SDUHQW\u000bV\f\u0011´\u0003\u0003(\u0011+\u0011\u0003Y\u0011\u00031HZ\u0003<RUN\u0003&LW\\\u0003'HS¶W\u0003RI\u0003(GXF\u0011\u000f\n²\u0003)\u0011\u00036XSS\u0011\u0003\u0016G\u0003²\u000f\u00031R\u0011\u0003&9\u0010\u0014\u0018\u0010\u0016\u0018\u0016\u0018\u000f\u0003\u0015\u0013\u0014\u0019\u0003:/\u0003\u0019\u0016\u0014\u0016\u0016\u001b\u000f\u0003DW\u0003\r\u001c\u0003\u000b6\u0011'\u00111\u0011<\u0011\u0003)HE\u0011\u0003\u0014\u0019\u000f\u0003\u0015\u0013\u0014\u0019\f\u0011\n\n 8OWLPDWHO\\\u000f\u0003³>W@KH\u0003FOHDU\u0003LPSOLFDWLRQ´\u0003RI\u0003WKH\u0003'LVWULFW¶V\u0003FHQWUDO\u0003DUJXPHQW\u0003LQ\u0003WKLV\nDSSHDO\u0003LV\u0003³WKDW\u0003QR\u0003PDWWHU\u0003KRZ\u0003VWURQJ\u0003WKH\u0003HYLGHQFH\u0003SUHVHQWHG\u0003E\\\u0003>0\u00116\u0011¶V\u0003DWWRUQH\\V\u0003RU\nFDUHWDNHUV@\u000f\u0003WKH\u0003>'LVWULFW@\u0003VWLOO\u0003ZRXOG\u0003KDYH\u0003UHIXVHG\u0003WR\u0003SURYLGH´\u0003IRU\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\nEDVHG\u0003XSRQ\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003QHHGV\u0003EHFDXVH\u000f\u0003LQ\u0003WKH\u0003'LVWULFW¶V\u0003YLHZ\u000f\u0003'&)6\u0003KDG\nHIIHFWLYHO\\\u0003GLVFKDUJHG\u0003LW\u0003RI\u0003WKH\u0003GXW\\\u0003WR\u0003GR\u0003VR\u0011\u0003\u0003'HDO\u0003Y\u0011\u0003+DPLOWRQ\u0003&W\\\u0011\u0003%G\u0011\u0003RI\u0003(GXF\u0011\u000f\u0003\u0016\u001c\u0015\n)\u0011\u0016G\u0003\u001b\u0017\u0013\u000f\u0003\u001b\u0018\u001b\u0003\u000b\u0019WK\u0003&LU\u0011\u0003\u0015\u0013\u0013\u0017\f\u0011\u0003\u0003³7KLV\u0003LV\u0003SUHGHWHUPLQDWLRQ\u0011´\u0003\u0003,G\u0011\u0003\n\n c. Whether the District’s Predetermination of M.S.’s Educational\n Placement Substantively Denied Her of a FAPE\n\n :KLOH\u0003³>K@DUPOHVV\u0003SURFHGXUDO\u0003HUURUV\u0003GR\u0003QRW\u0003FRQVWLWXWH\u0003D\u0003GHQLDO\u0003RI\u0003)$3(\u000f´\nSURFHGXUDO\u0003LQDGHTXDFLHV\u0003³WKDW\u0003UHVXOW\u0003LQ\u0003WKH\u0003ORVV\u0003RI\u0003HGXFDWLRQDO\u0003RSSRUWXQLW\\\u000f\u0003RU\u0003VHULRXVO\\\nLQIULQJH\u0003WKH\u0003SDUHQWV¶\u0003RSSRUWXQLW\\\u0003WR\u0003SDUWLFLSDWH\u0003LQ\u0003WKH\u0003,(3\u0003IRUPXODWLRQ\u0003SURFHVV\u000f\u0003FOHDUO\\\nUHVXOW\u0003LQ\u0003WKH\u0003GHQLDO\u0003RI\u0003)$3(\u0011´\u0003\u0003'RXJ\u0003&\u0011\u000f\u0003\u001a\u0015\u0013\u0003)\u0011\u0016G\u0003DW\u0003\u0014\u0013\u0017\u0016\u0011\u0003\u0003$V\u0003WKH\u00031LQWK\u0003&LUFXLW\nH[SODLQHG\u0003LQ\u0003'RXJ\u0003&\u0011\u000f\u0003\u0003\u0003\n\n DQ\u0003,(3\u0003WHDP¶V\u0003IDLOXUH\u0003WR\u0003SURSHUO\\\u0003FRQVLGHU\u0003DQ\u0003DOWHUQDWLYH\n HGXFDWLRQDO\u0003SODQ\u0003FDQ\u0003UHVXOW\u0003LQ\u0003D\u0003ORVW\u0003HGXFDWLRQDO\u0003RSSRUWXQLW\\\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0014\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 22 of 25 Page ID #:2387\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n HYHQ\u0003LI\u0003WKH\u0003VWXGHQW\u0003FDQQRW\u0003GHILQLWLYHO\\\u0003GHPRQVWUDWH\u0003WKDW\u0003KLV\n SODFHPHQW\u0003ZRXOG\u0003KDYH\u0003EHHQ\u0003GLIIHUHQW\u0003EXW\u0003IRU\u0003WKH\u0003SURFHGXUDO\n HUURU\u0003\u0011\u0003\u0011\u0003\u0011\u0003$\u0003SURFHGXUDO\u0003HUURU\u0003UHVXOWV\u0003LQ\u0003WKH\u0003GHQLDO\u0003RI\u0003DQ\n HGXFDWLRQDO\u0003RSSRUWXQLW\\\u0003ZKHUH\u000f\u0003DEVHQW\u0003WKH\u0003HUURU\u000f\u0003WKHUH\u0003LV\u0003D\n ³VWURQJ\u0003OLNHOLKRRG´\u0003WKDW\u0003DOWHUQDWLYH\u0003HGXFDWLRQDO\u0003SRVVLELOLWLHV\u0003IRU\n WKH\u0003VWXGHQW\u0003³ZRXOG\u0003KDYH\u0003EHHQ\u0003EHWWHU\u0003FRQVLGHUHG\u0011´\u0003\n\n'RXJ\u0003&\u0011\u000f\u0003\u001a\u0015\u0013\u0003)\u0011\u0016G\u0003DW\u0003\u0014\u0013\u0017\u001a\u0003\u000bFLWDWLRQ\u0003RPLWWHG\f\u0011\n\n +HUH\u000f\u0003DV\u0003H[SODLQHG\u0003supra\u000f\u0003/$86'¶V\u0003SUHGHWHUPLQDWLRQ\u0003UHJDUGLQJ\u00030\u00116\u0011¶V\u0003UHVLGHQWLDO\nSODFHPHQW\u0003DQG\u0003IDLOXUH\u0003WR\u0003GLVFXVV\u0003WKH\u0003SURSULHW\\\u0003RI\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003IRU\u0003HGXFDWLRQDO\nSXUSRVHV\u0003FRQVWLWXWHV\u0003D\u0003SURFHGXUDO\u0003HUURU\u0003XQGHU\u0003WKH\u0003,'($\u0011\u0003\u0003$EVHQW\u0003WKLV\u0003SURFHGXUDO\u0003HUURU\u000f\nWKHUH\u0003LV\u0003XQGRXEWHGO\\\u0003³D\u0003µVWURQJ\u0003OLNHOLKRRG¶\u0003WKDW\u0003DOWHUQDWLYH\u0003HGXFDWLRQDO\u0003SRVVLELOLWLHV\u0003IRU\n>0\u00116\u0011@´²LQFOXGLQJ\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003IRU\u0003HGXFDWLRQDO\u0003SXUSRVHV²³\u0003µZRXOG\u0003KDYH\nEHHQ\u0003EHWWHU\u0003FRQVLGHUHG\u000f¶\u0003´\u0003DQG\u000f\u0003SHUKDSV\u000f\u0003ZRXOG\u0003XOWLPDWHO\\\u0003KDYH\u0003EHHQ\u0003UHIOHFWHG\u0003LQ\u0003WKH\u0003,(3\u0011\u0003\n,G\u0011\u001e\u0003VHH\u0003DOVR\u00030\u0011/\u0011\u0003Y\u0011\u0003)HG\u0011\u0003:D\\\u00036FK\u0011\u0003'LVW\u0011\u000f\u0003\u0016\u001c\u0017\u0003)\u0011\u0016G\u0003\u0019\u0016\u0017\u000f\u0003\u0019\u0018\u001a\u0003\u000b\u001cWK\u0003&LU\u0011\u0003\u0015\u0013\u0013\u0018\f\u0003\u000bRXOG\u000f\u0003-\u0011\nFRQFXUULQJ\u0003LQ\u0003SDUW\u0003DQG\u0003FRQFXUULQJ\u0003LQ\u0003WKH\u0003MXGJPHQW\f\u0003\u000b,(3\u0003SURFHGXUDO\u0003HUURU\u0003FDQQRW\u0003EH\n³KDUPOHVV´\u0003ZKHUH\u000f\u0003DEVHQW\u0003VXFK\u0003HUURU\u000f\u0003RWKHU\u0003HGXFDWLRQDO\u0003SODFHPHQWV\u0003ZRXOG\u0003KDYH\u0003OLNHO\\\nEHHQ\u0003FRQVLGHUHG\f\u0011\n\n 'U\u0011\u00030DU\\\u0003/DUJH\u000f\u00030\u00116\u0011¶V\u0003H[SHUW\u000f\u0003WHVWLILHG\u0003DW\u0003WKH\u00032$+\u0003KHDULQJ\u0003WKDW\u0003³>L@Q\u0003KHU\u0003RSLQLRQ\u000f\n>0\u00116\u0011@\u0003UHTXLUHG\u0003WKH\u0003OHYHO\u0003\u0014\u0017\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003ZLWK\u0003WKH\u0003DWWDFKHG\u0003QRQSXEOLF\u0003VFKRRO>@\nEHFDXVH\u0003VKH\u0003QHHGHG\u0003D\u0003KLJK\u0003OHYHO\u0003RI\u0003FRQWDLQPHQW\u0003ERWK\u0003UHVLGHQWLDOO\\\u0003and educationally\u0011´\u0003\n$5\u0003\u0014\u001a\u001b\u0018\u0003\u000b$/-\u0003)LQGLQJ\u0003RI\u0003)DFW\u00031R\u0011\u0003\u0014\u0015\u001b\f\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n ,Q\u0003SDUWLFXODU\u000f\u0003>0\u00116\u0011@\u0003UHTXLUHG\u0003PLOLHX\u0003WKHUDS\\\u0003RQ\u0003D\u0003UHJXODU\u0003EDVLV\n DQG\u0003WUDLQHG\u0003VWDII\u0003WR\u0003UHVSRQG\u0003WR\u0003D\u0003UDQJH\u0003RI\u0003VLWXDWLRQV\u0011\u0003\u0003>0\u00116\u0011@\n UHFHLYHG\u0003PLOLHX\u0003WKHUDS\\\u0003LQ\u0003WKH\u0003UHVLGHQFH\u000f\u0003DQG\u0003VRPH\u0003PLOLHX\n WKHUDS\\\u0003ZDV\u0003DOVR\u0003DYDLODEOH\u0003DW\u0003WKH\u0003VFKRRO\u0011\u0003\u0003$W\u0003WKH\u0003WLPH\u0003RI\u0003KHU\n DVVHVVPHQW\u000f\u0003'U\u0011\u0003/DUJH\u0003EHOLHYHG\u0003WKDW [M.S.] could not have\n benefitted from her nonpublic school placement if she had not\n also had a residential placement. [M.S.] needed the residence\n placement to provide the behavioral support she needed.\n\n,G\u0011\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0015\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 23 of 25 Page ID #:2388\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n 7KH\u0003UHFRUG\u0003DOVR\u0003GHPRQVWUDWHV\u0003WKDW\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003DQG\u0003DWWRUQH\\V\nKDYH\u000f\u0003DW\u0003WLPHV\u000f\u0003DSSHDUHG\u0003WR\u0003UHTXHVW\u0003DQ\u0003,(3\u0003UHIOHFWLQJ\u0003D\u0003SODFHPHQW\u0003LQ\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\nFHQWHU\u0011\u0003\u0003)RU\u0003H[DPSOH\u000f\u0003ZKLOH\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003VLJQHG\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u001b\u000f\u0003\u0015\u0013\u0014\u0016\n,(3\u000f\u0003VKH\u0003GLVDJUHHG\u0003WKDW\u0003WKH\u0003,(3\u0003FRQVWLWXWHG\u0003D\u0003)$3(\u000f\u0003FRPPHQWLQJ\u0003DV\u0003IROORZV\u001d\u0003³,\u0003DJUHH\u0003WR\nLPSOHPHQW\u0003>VSHFLDO\u0003GD\\\u0003FODVV@\u0003SODFHPHQW\u0003ZKLOH\u0003>0\u00116\u0011@\u0003LV\u0003GHWDLQHG\u000f\u0003EXW\u0003PDLQWDLQ>@\u0003WKDW\u0003she\nrequires residential placement\u0011´\u0003\u0003$5\u0003\u001a\u0016\u0013\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\u0003\u0003,Q\u0003-XQH\u0003\u0015\u0013\u0014\u0016\u000f\u0003DOWKRXJK\n'&)6\u0003KDG\u0003DOUHDG\\\u0003SODFHG\u00030\u00116\u0011\u0003DW\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u000f\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\nQRQHWKHOHVV\u0003UHTXHVWHG\u0003LQ\u0003WKH\u0003,(3\u0003WKDW\u0003WKHUH\u0003EH\u0003DQ\u0003³educationally related\u0003PHQWDO\u0003KHDOWK\nDVVHVVPHQW\u0003IRU\u0003UHVLGHQWLDO\u0011´\u0003\u0003$5\u0003\u0014\u001a\u0019\u0016\u0003\u000b$/-\u0003)LQGLQJ\u0003RI\u0003)DFW\u00031R\u0011\u0003\u0015\u001b\f\u0003\u000bTXRWLQJ\u0003,(3\u0003FRQVHQW\nSDJH\f\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n 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$FFRUGLQJO\\\u000f\u0003WKH\u0003&RXUW\u0003ILQGV\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\u0003SUHGHWHUPLQDWLRQ\u0003RI\u00030\u00116\u0011¶V\nHGXFDWLRQDO\u0003SODFHPHQW\u000f\u0003DQG\u0003WKH\u0003'LVWULFW¶V\u0003IDLOXUH\u0003WR\u0003GLVFXVV\u0003WKH\u0003SRWHQWLDO\u0003QHFHVVLW\\\u0003RI\nLQFOXGLQJ\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003FHQWHU\u0003DV\u0003SDUW\u0003RI\u0003KHU\u0003,(3\u000f\u0003ZDV\u0003QRW\u0003KDUPOHVV\u0003DQG\u0003LQGHHG\nGHQLHG\u00030\u00116\u0011\u0003RI\u0003D\u0003)$3(\u0011\u0003\n\n %\u0011 :KHWKHU\u0003WKH\u0003'LVWULFW\u0003'HQLHG\u00030\u00116\u0011\u0003D\u0003)$3(\u0003E\\\u0003)DLOLQJ\u0003WR\u00032IIHU\u00033ODFHPHQW\n DW\u0003D\u00035HVLGHQWLDO\u00037UHDWPHQW\u0003)DFLOLW\\\u0003LQ\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003DQG\n 2FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJV\n\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0016\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 24 of 25 Page ID #:2389\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n %HFDXVH\u0003WKH\u0003&RXUW\u0003KDV\u0003FRQFOXGHG\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\u0003SURFHGXUDO\u0003YLRODWLRQ\u0003UHVXOWHG\u0003LQ\nWKH\u0003ORVV\u0003RI\u0003DQ\u0003HGXFDWLRQDO\u0003RSSRUWXQLW\\\u0003DQG\u0003WKXV\u0003WKH\u0003GHQLDO\u0003RI\u0003D\u0003)$3(\u000f\u0003WKH\u0003FRXUW\u0003QHHG\u0003QRW\nDOVR\u0003DGGUHVV\u0003ZKHWKHU\u00030\u00116\u0011¶V\u0003)HEUXDU\\\u0003DQG\u00032FWREHU\u0003\u0015\u0013\u0014\u0017\u0003,(3V\u0003ZHUH\u0003³UHDVRQDEO\\\nFDOFXODWHG\u0003WR\u0003HQDEOH\u0003>0\u00116\u0011@\u0003WR\u0003UHFHLYH\u0003HGXFDWLRQDO\u0003EHQHILWV\u0011´\u0003\u0003'RXJ\u0003&\u0011\u000f\u0003\u001a\u0015\u0013\u0003)\u0011\u0016G\u0003DW\u0003\u0014\u0013\u0017\u0016\n\u000bFLWDWLRQ\u0003RPLWWHG\f\u001e\u0003VHH\u0003DOVR\u0003'HDO\u000f\u0003\u0016\u001c\u0015\u0003)\u0011\u0003\u0016G\u0003DW\u0003\u001b\u0019\u0015\u0003\u000bQRWLQJ\u0003SODFHPHQW\u0003PXVW\u0003SURYLGH\u0003VWXGHQW\nZLWK\u0003D\u0003³PHDQLQJIXO´\u0003HGXFDWLRQDO\u0003EHQHILW\f\u0011\u0003\u00032I\u0003FRXUVH\u000f\u00030\u00116\u0011\u0003FRQWHQGV\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\nIDLOXUH\u0003WR\u0003RIIHU\u0003D\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003DW\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003DQG\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\n,(3\u0003PHHWLQJV\u0003GHQLHG\u0003KHU\u0003RI\u0003D\u0003)$3(\u0011\u0003\u00037KH\u0003$/-\u0003IRXQG\u0003RWKHUZLVH\u000f\u0003FRQFOXGLQJ\u000f\u0003LQ\nDFFRUGDQFH\u0003ZLWK\u0003LWV\u0003UHDVRQLQJ\u0003RQ\u0003WKH\u0003SUHGHWHUPLQDWLRQ\u0003LVVXH\u000f\u0003WKDW\u0003EHFDXVH\u0003RI\u00030\u00116\u0011¶V\n³GHSHQGHQF\\\u0003VWDWXV\u000f\u0003DQG\u0003DQ\u0003RUGHU\u0003E\\\u0003WKH\u0003MXYHQLOH\u0003FRXUW\u0003UHJDUGLQJ\u0003>KHU@\u0003UHVLGHQWLDO\nSODFHPHQW\u0003IRU\u0003QRQ\u0010HGXFDWLRQDO\u0003UHDVRQV\u000f\u0003>WKH\u0003'LVWULFW@\u0003ZDV\u0003QRW\u0003UHTXLUHG\u0003WR\u0003PDNH\u0003D\nUHVLGHQWLDO\u0003SODFHPHQW\u0003RIIHU\u0011´\u0003\u0003$5\u0003\u0014\u001b\u0014\u0018\u0003\u000b$/-\u0003&RQFOXVLRQ\u0003RI\u0003/DZ\u00031R\u0011\u0003\u0019\u001b\f\u0011\n\n 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\u0003\u0003,Q\u0003UHDFKLQJ\u0003LWV\u0003FRQFOXVLRQ\u0003KHUH\u000f\u0003WKH\u0003&RXUW\u0003QRWHV\u0003WKDW\u0003LW\u0003WDNHV\u0003QR\u0003SRVLWLRQ\u0003UHJDUGLQJ\n \u001b\n\nZKLFK\u0003SXEOLF\u0003HQWLW\\\u0003PD\\\u0003XOWLPDWHO\\\u0003EH\u0003UHVSRQVLEOH\u0003IRU\u0003SD\\PHQW\u0003RI\u0003UHVLGHQWLDO\u0003WUHDWPHQW\nVHUYLFHV\u0003LQ\u0003WKH\u0003HYHQW\u0003WKDW\u0003PXOWLSOHV\u0003HQWLWLHV\u000f\u0003OLNH\u0003'&)6\u0003DQG\u0003D\u0003ORFDO\u0003VFKRRO\u0003GLVWULFW\u000f\nLQGHSHQGHQWO\\\u0003GHFLGH\u0003D\u0003SDUWLFXODU\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003LV\u0003DSSURSULDWH\u0003IRU\u0003D\u0003JLYHQ\u0003FKLOG\nXQGHU\u0003WKH\u0003DJHQFLHV¶\u0003UHVSHFWLYH\u0003VWDWXWRU\\\u0003IUDPHZRUNV\u0003DQG\u0003REOLJDWLRQV\u0011\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0017\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 25 of 25 Page ID #:2390\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\nWUHDWPHQW\u0003IDFLOLW\\\u0003LQ\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003DQG\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJV\u0011\u0003\u00030\u00116\u0011\nLV\u0003WKH\u0003SUHYDLOLQJ\u0003SDUW\\\u0003RQ\u0003DOO\u0003LVVXHV\u0003LQ\u0003WKLV\u0003DSSHDO\u0011\n\n 7KH\u0003&RXUW\u00035(0$1'6\u0003WR\u0003WKH\u0003$/-\u0003IRU\u0003D\u0003GHWHUPLQDWLRQ\u0003UHJDUGLQJ\u0003WKH\u0003DSSURSULDWH\nUHOLHI\u0003LQ\u0003OLJKW\u0003RI\u0003WKH\u0003&RXUW¶V\u0003UXOLQJ\u0003KHUH\u0003DQG\u0003WKH\u0003HYLGHQFH\u0003LQ\u0003WKH\u0003UHFRUG\u0011\n\n &RXQVHO\u0003IRU\u0003SODLQWLII\u0003LV\u0003GLUHFWHG\u0003WR\u0003ILOH\u0003LQ\u0003WKLV\u0003&RXUW\u0003D\u0003QRWLFHG\u0010PRWLRQ\u0003IRU\u0003DQ\u0003DZDUG\nRI\u0003DWWRUQH\\V¶\u0003IHHV\u0003QR\u0003ODWHU\u0003WKDQ\u00030RQGD\\\u000f\u00032FWREHU\u0003\u0014\u0013\u000f\u0003\u0015\u0013\u0014\u0019\u0011\n\n ,7\u0003,6\u000362\u000325'(5('\u0011\n \u001d\n\n ,QLWLDOV\u0003RI\u00033UHSDUHU 602\n\n\n\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003*(1(5$/ 3DJH\u0003\u0015\u0018\u0003RI\u0003\u0015\u0018", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361680/", "author_raw": "The Honorable Robert W. Pratt, United States District Judge for"}]}	DOROTHY W NELSON	KIM MCLANE WARDLAW	ROBERT W PRATT	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584427/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: M. S. v. Lausd\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n M. S., a minor, by and through her No. 16-56472\n guardian ad litem R.H.,\n Plaintiff-Appellee, D.C. No.\n 2:15-cv-05819-\n v. CAS-MRW\n\n LOS ANGELES UNIFIED SCHOOL\n DISTRICT, a Public Entity, ORDER\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n Christina A. Snyder, District Judge, Presiding\n\n Argued and Submitted December 4, 2018\n Pasadena, California\n\n Filed January 24, 2019\n\n Before: Dorothy W. Nelson and Kim McLane Wardlaw,\n Circuit Judges, and Robert W. Pratt,* District Judge.\n\n\n\n\n \n The Honorable Robert W. Pratt, United States District Judge for\nthe Southern District of Iowa, sitting by designation.\n\f2 M.S. V. LAUSD\n\n SUMMARY \n\n\n Individuals with Disabilities Education Act\n\n The panel filed an order affirming the district court’s\nmemorandum and order, which reversed an administrative\nlaw judge’s decision in an action brought under the\nIndividuals with Disabilities Education Act, asserting that a\nstudent was denied a free and appropriate public education.\n\n The panel agreed with the district court’s conclusion that\nthe student was denied a free and appropriate public\neducation because the Los Angeles Unified School District\nwas required to consider whether a residential placement\nshould be offered to her for educational purposes as part of\nher individualized education plan notwithstanding that\nanother county agency, the Department of Children and\nFamily Services, had residentially placed her for mental\nhealth treatment under state law, and pursuant to a juvenile\ncourt order. The panel agreed that the LAUSD had an\nindependent obligation to ensure that a continuum of\nalternative placements was available to meet the student’s\neducational needs and to consider whether a residential\nplacement was necessary for educational purposes and not\nmerely necessary quite apart from the learning process. The\npanel affirmed for the reasons stated in the district court’s\nmemorandum and decision, which the panel attached as an\nappendix to its order.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f M.S. V. LAUSD 3\n\n COUNSEL\n\nBarrett K. Green (argued) and Cristen R. Hintze, Littler\nMendelson P.C., Los Angeles, California; Mary Kellogg,\nAssistant General Counsel II; Devora Navera Reed, Chief\nAdministrative Law & Litigation Counsel; David\nHolmquist, General Counsel; Office of General Counsel,\nLos Angeles Unified School District, Los Angeles,\nCalifornia; for Defendant-Appellant.\n\nAllison Barret Holcombe (argued), Los Angeles, California;\nShawna L. Parks, Law Office of Shawna L. Parks, Los\nAngeles, California; Janeen Steel, Learning Rights Law\nCenter, Los Angeles, California; for Plaintiff-Appellee.\n\nSummer D. Dalessandro and Howard J. Fulfrost, Fagen\nFriedman & Fulfrost LLP, Carlsbad, California; D. Michael\nAmbrose and Elaine M. Yama-Garcia, California School\nBoards Association/Education Legal Alliance, West\nSacramento, California; for Amicus Curiae California\nSchool Boards Association’s Educational Legal Alliance.\n\nSelene Almazan-Altobelli, Ellen Saideman, and Alexis\nCasillas, Catherine Merino Reisman Counsel of Parent\nAttorneys and Advocates Inc., Towson, Maryland, for Amici\nCuriae Council of Parent Attorneys and Advocates Inc. and\nCalifornia Association for Parent-Child Advocacy.\n\nSuge Lee, Carly J. Munson, and Ben Conway, Disability\nRights California, Oakland, California, for Amicus Curiae\nDisability Rights California.\n\f4 M.S. V. LAUSD\n\n ORDER\n\n The Los Angeles Unified School District (LAUSD)\nappeals from the district court’s Memorandum and Order\nreversing the administrative law judge’s (ALJ) decision in\nan Individuals with Disabilities Education Act (IDEA)\naction asserting the denial of a Free and Appropriate Public\nEducation (FAPE). 20 U.S.C. §§ 1400–1482.\n\n The district court correctly concluded that M.S. was\ndenied a FAPE because LAUSD was required to consider\nwhether a residential placement should be offered to M.S.\nfor educational purposes as part of her individualized\neducation plan (IEP) notwithstanding that another county\nagency, the Department of Children and Family Services\n(DCFS), had residentially placed her for mental health\ntreatment under state law, and pursuant to a Juvenile Court\norder. In a thorough and well-reasoned opinion, the district\ncourt concluded that the LAUSD “had an independent\nobligation to ‘ensure that a continuum of alternative\nplacements [was] available to meet [M.S.’s educational]\nneeds,’ 34 C.F.R. § 300.115(a)—and to consider whether a\nresidential placement was ‘[] necessary for educational\npurposes’ and not merely ‘necessary quite apart from the\nlearning process.’” See Clovis Unified Sch. Dist. v. Cal.\nOffice of Admin. Hearings, 903 F.2d 635, 643 (9th Cir.\n1990).\n\n We agree with the district court’s conclusion, and affirm\nfor the reasons stated in the district court’s Memorandum\nand Decision, reissued January 9, 2019, and attached hereto\nas Appendix A.\n\n AFFIRMED.\n\f M.S. V. LAUSD 5\n\n\n\n\nAppendix A\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 1 of 25 Page ID #:2366\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\n 3UHVHQW\u001d\u00037KH\u0003+RQRUDEOH &+5,67,1$\u0003$\u0011\u000361<'(5\n\n\n 'HSXW\\\u0003&OHUN &RXUW\u00035HSRUWHU\u0003\u0012\u00035HFRUGHU 7DSH\u00031R\u0011\n $WWRUQH\\V\u00033UHVHQW\u0003IRU\u00033ODLQWLIIV\u001d $WWRUQH\\V\u00033UHVHQW\u0003IRU\u0003'HIHQGDQWV\u001d\n 1\u0012$ 1\u0012$\n 3URFHHGLQJV\u001d\u0003 &255(&7('\u00030(025$1'80\u0003$1'\u000325'(5\u000321\u0003$33($/\n )520\u0003$'0,1,675$7,9(\u0003/$:\u0003-8'(¶6\u0003'(&,6,21\n\n 2Q\u00036HSWHPEHU\u0003\u0014\u0015\u000f\u0003\u0015\u0013\u0014\u0019\u000f\u0003WKH\u0003&RXUW\u0003LVVXHG\u0003DQ\u0003RUGHU\u0003LQ\u0003WKH\u0003DERYH\u0010FDSWLRQHG\u0003FDVH\nUHYHUVLQJ\u0003LQ\u0003SDUW\u0003WKH\u0003DGPLQLVWUDWLYH\u0003ODZ\u0003MXGJH¶V\u0003GHFLVLRQ\u0011\u0003\u00036HH\u0003&DVH\u00031R\u0011\u0003&9\u0003\u0014\u0018\u0010\u0018\u001b\u0014\u001c\n&$6\u000f\u0003'NW\u0011\u00031R\u0011\u0003\u0017\u001a\u0011\u0003\u00037KH\u0003&RXUW\u0003LVVXHV\u0003WKH\u0003IROORZLQJ\u0003FRUUHFWHG\u0003RUGHU\u0011\n\n,\u0011 ,1752'8&7,21\n\n 7KLV\u0003FDVH\u0003DULVHV\u0003XQGHU\u0003WKH\u0003,QGLYLGXDOV\u0003ZLWK\u0003'LVDELOLWLHV\u0003(GXFDWLRQ\u0003$FW\u0003\u000bWKH\n³,'($´\f\u000f\u0003\u0015\u0013\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0017\u0013\u0013\u000f\u0003HW\u0003VHT\u0011\u0003\u00032Q\u0003-XO\\\u0003\u0016\u0014\u000f\u0003\u0015\u0013\u0014\u0018\u000f\u0003SODLQWLII\u00030\u00116\u0011\u000f\u0003D\u0003PLQRU\u000f\u0003E\\\u0003DQG\nWKURXJK\u0003KHU\u0003XDUGLDQ\u0003$G\u0003/LWHP\u000f\u00035\u0011+\u0011\u0003\u000bFROOHFWLYHO\\\u000f\u0003³SODLQWLII´\u0003RU\u0003³0\u00116\u0011´\f\u000f\u0003ILOHG\u0003VXLW\nDJDLQVW\u0003GHIHQGDQW\u0003/RV\u0003$QJHOHV\u00038QLILHG\u00036FKRRO\u0003'LVWULFW\u0003\u000b³WKH\u0003'LVWULFW´\u0003RU\u0003³/$86'´\f\u000f\nDOOHJLQJ\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u0003DQG\u0003VHHNLQJ\u0003UHYHUVDO\u0003RI\u0003WKH\u0003$GPLQLVWUDWLYH\u0003/DZ\u0003-XGJH¶V\n\u000b³$/-´\f\u00030D\\\u0003\u0017\u000f\u0003\u0015\u0013\u0014\u0018\u0003GHFLVLRQ\u0003DV\u0003WR\u0003WKUHH\u0003LVVXHV\u0011\u0014\n\n 3UHVHQWO\\\u0003EHIRUH\u0003WKH\u0003&RXUW\u0003LV\u00030\u00116\u0011¶V\u0003DGPLQLVWUDWLYH\u0003DSSHDO\u0011\u0003\u0003$\u0003KHDULQJ\u0003ZDV\u0003KHOG\u0003RQ\n-XQH\u0003\u0016\u000f\u0003\u0015\u0013\u0014\u0019\u0011\u0003\u00033ODLQWLII\u0003SUHVHQWV\u0003WKH\u0003IROORZLQJ\u0003WKUHH\u0003SULPDU\\\u0003LVVXHV\u0003IRU\u0003GHWHUPLQDWLRQ\u001d\u0003\u000b\u0014\f\n:KHWKHU\u0003WKH\u0003'LVWULFW\u0003GHQLHG\u0003SODLQWLII\u0003RI\u0003D\u0003)UHH\u0003DQG\u0003$SSURSULDWH\u00033XEOLF\u0003(GXFDWLRQ\u0003XQGHU\nWKH\u0003,'($\u0003E\\\u0003IDLOLQJ\u0003WR\u0003GLVFXVV\u0003SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003DW\u0003WKH\u00032FWREHU\n\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u000f\u0003VHH\u00036WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0018\f\u001e\u0003\u000b\u0015\f\u0003:KHWKHU\u0003WKH\u0003'LVWULFW\u0003GHQLHG\u0003SODLQWLII\nRI\u0003D\u0003)UHH\u0003DQG\u0003$SSURSULDWH\u00033XEOLF\u0003(GXFDWLRQ\u0003XQGHU\u0003WKH\u0003,'($\u0003E\\\u0003SUHGHWHUPLQLQJ\u0003WKH\nTXHVWLRQ\u0003RI\u0003SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003DW\u0003WKH\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\n \u00030\u00116\u0011\u0003SUHVHQWHG\u0003D\u0003WRWDO\u0003RI\u0003WZHOYH\u0003LVVXHV\u0003WR\u0003WKH\u0003$/-\u000f\u0003DQG\u0003WKH\u0003'LVWULFW\u0003SUHYDLOHG\u0003RQ\n \u0014\n\nDOO\u0003EXW\u0003RQH\u0003RI\u0003WKHVH\u0003WZHOYH\u0003LVVXHV\u0011\u0003\u0003+HUH\u000f\u0003DV\u0003GLVFXVVHG\u0003LQ\u0003JUHDWHU\u0003GHWDLO\u0003infra\u000f\u00030\u00116\u0011\u0003RQO\\\nVHHNV\u0003UHYLHZ\u0003DQG\u0003UHYHUVDO\u0003RI\u0003WKUHH\u0003RI\u0003WKH\u0003HOHYHQ\u0003LVVXHV\u0003RQ\u0003ZKLFK\u0003WKH\u0003$/-\u0003UXOHG\u0003LQ\u0003IDYRU\u0003RI\nWKH\u0003'LVWULFW\u0011\u0003\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 2 of 25 Page ID #:2367\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 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&,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0017\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 5 of 25 Page ID #:2370\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n %\u0011 0DUFK\u0003\u0015\u0013\u0014\u0016\u00035HOHDVH\u0003IURP\u0003-XYHQLOH\u0003+DOO\u0003DQG\u00036XEVHTXHQW\u00033ODFHPHQW\n E\\\u0003'&)6\n\n 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7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n 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6KRUWO\\\u0003WKHUHDIWHU\u000f\u00030V\u0011\u0003.\u0011\u0003ZDV\u0003UHSODFHG\u0003DV\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003E\\\u00030V\u0011\n:\u000f\u0003ZKR\u0003FRQVHQWHG\u0003WR\u0003WKH\u0003LPSOHPHQWDWLRQ\u0003RI\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u000f\u0003EXW\u0003GLG\u0003QRW\u0003DJUHH\nWKDW\u0003LW\u0003FRQVWLWXWHG\u0003D\u0003)$3(\u0011\u0003\u00030\u00116\u0011\u0003FRQWLQXHG\u0003WR\u0003OLYH\u0003DW\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003XQGHU\u0003WKH\u0003DXWKRULW\\\nRI\u0003'&)6\u000f\u0003DQG\u0003WKH\u0003'LVWULFW\u0003EHJDQ\u0003WR\u0003LPSOHPHQW\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0011\u0003\n\n\n\n (\u0011 2FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u00030HHWLQJ\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0019\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 7 of 25 Page ID #:2372\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n ,Q\u00030D\\\u0003\u0015\u0013\u0014\u0017\u000f\u00030\u00116\u0011¶V\u0003DWWRUQH\\\u0003UHIHUUHG\u00030\u00116\u0011\u0003WR\u0003'U\u0011\u00030DU\\\u0003/DUJH\u0003IRU\u0003D\nFRPSUHKHQVLYH\u0003QHXURSV\\FKRORJLFDO\u0003DVVHVVPHQW\u0011\u0003\u0003'U\u0011\u0003/DUJH\u0003GUDIWHG\u0003D\u0003UHSRUW\u0003DQG\u0003VXEPLWWHG\nLW\u0003WR\u0003WKH\u0003'LVWULFW\u0003SULRU\u0003WR\u00030\u00116\u0011¶V\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u0011\u0003\u00032Q\u00032FWREHU\u0003\u0014\u0013\u000f\u0003\u0015\u0013\u0014\u0017\u000f\n0\u00116\u0011¶V\u0003FRXQVHO\u0003VHQW\u0003D\u0003OHWWHU\u0003WR\u00039LVWD¶V\u0003DVVLVWDQW\u0003SULQFLSDO\u000f\u0003DGYLVLQJ\u0003KHU\u0003WKDW\u0003KH\u0003ZLVKHG\u0003WR\nGLVFXVV\u0003IRXU\u0003WRSLFV\u0003DW\u0003WKH\u0003PHHWLQJ\u000f\u0003RQH\u0003RI\u0003ZKLFK\u0003ZDV\u0003SODFHPHQW\u0003LQ\u0003WKH\u0003OHDVW\u0003UHVWULFWLYH\nHQYLURQPHQW\u0003IRU\u00030\u00116\u0011\u000f\u0003LQFOXGLQJ\u0003LQFOXVLRQ\u0003DQG\u0003PDLQVWUHDPLQJ\u0003RSSRUWXQLWLHV\u0011\u0003\u0003$W\u0003WKH\u0003WLPH\nRI\u0003WKH\u0003,(3\u0003PHHWLQJ\u000f\u00030\u00116\u0011\u0003ZDV\u0003VWLOO\u0003UHVLGLQJ\u0003DW\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003DQG\u0003HQUROOHG\u0003LQ\u0003WKH\u00039LVWD\n6FKRRO\u0011\u0003\u0003\n\n 'XULQJ\u0003WKH\u0003PHHWLQJ\u000f\u0003WKH\u0003,(3\u0003WHDP\u0003GLVFXVVHG\u0003WKH\u0003IRXU\u0003WRSLFV\u0003WKDW\u00030\u00116\u0011¶V\u0003FRXQVHO\u0003KDG\nSUHYLRXVO\\\u0003DGYLVHG\u0003WKH\u0003SDUWLHV\u0003KH\u0003DQG\u0003WKH\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003ZDQWHG\u0003WR\u0003GLVFXVV\u0011\u0003\n7KH\u0003WHDP\u0003ILUVW\u0003DGGUHVVHG\u0003SODFHPHQW\u0011\u0003\u0003'XH\u0003WR\u00030\u00116¶V\u0003LQFUHDVHG\u0003DFDGHPLF\u0003DQG\u0003EHKDYLRUDO\nLPSURYHPHQW\u000f\u0003'&)6\u0003SODQQHG\u0003WR\u0003PRYH\u00030\u00116\u0011\u0003WR\u0003D\u0003OHVV\u0003UHVWULFWLYH\u000f\u0003OHYHO\u0003\u0014\u0017\u0003XQORFNHG\nUHVLGHQWLDO\u0003IDFLOLW\\\u0011\u0003\u00037KH\u0003WHDP\u0003GLVFXVVHG\u0003ZKHWKHU\u00030\u00116\u0011\u0003VKRXOG\u0003WDNH\u0003FODVVHV\u0003DW\u00039LVWD¶V\u0003RSHQ\nQRQSXEOLF\u0003VFKRRO\u0003LQ\u0003WKH\u0003HYHQW\u0003VKH\u0003ZHUH\u0003QRW\u0003WUDQVLWLRQHG\u0003WR\u0003DQRWKHU\u0003IDFLOLW\\\u000f\u0003DV\u0003ZHOO\u0003DV\nZKHWKHU\u00030\u00116\u0011\u0003FRXOG\u0003DWWHQG\u0003D\u0003SXEOLF\u0003VFKRRO\u0011\u0003\u0003:KLOH\u0003WKH\u0003,(3\u0003WHDP\u0003DFNQRZOHGJHG\u0003WKDW\nHYHQWXDOO\\\u00030\u00116\u0011\u0003PD\\\u0003³VWHS\u0003GRZQ\u0003WR\u0003D\u0003OHVV\u0003UHVWULFWLYH\u0003OHYHO\u0003RI\u0003UHVLGHQWLDO\u0003FDUH\u000f´\u0003WKH\nDGPLQLVWUDWLYH\u0003GHVLJQHH\u0003FDXWLRQHG\u0003WKDW\u0003³UHDGLQJ\u0003WKLV\u0003,(3\u000f\u0003,\u0003GRQ¶W\u0003NQRZ\u0003LI\u0003VKH¶V\u0003GRLQJ\u0003WKDW\nJUHDW\u0011´\u0003\u00030\u00116\u0011¶V\u0003DWWRUQH\\\u0003DOVR\u0003H[SODLQHG\u0003WKDW\u00030\u00116\u0011\u0003³KDV\u0003GLIILFXOW\\\u0003ZLWK\u0003WUDQVLWLRQ´\u0003DQG\u0003³LW\nVHHPV\u0003OLNH\u0003HYHU\\\u0003WLPH\u0003VKH\u0003VWDUWV\u0003VRPHZKHUH\u0003QHZ\u0003KHU\u0003EHKDYLRUV\u0003ZLOO\u0003ULVH\u0003XS\u0003DJDLQ\u0011´\u0003\u0003\n\n $OWKRXJK\u0003WKH\u0003'LVWULFW\u0003KDG\u0003UHFHLYHG\u0003'U\u0011\u0003/DUJH¶V\u0003QHXURSV\\FKRORJLFDO\u0003DVVHVVPHQW\u000f\u0003WKH\n,(3\u0003WHDP\u0003GLG\u0003QRW\u0003GLVFXVV\u0003RU\u0003UHYLHZ\u0003WKH\u0003DVVHVVPHQW\u0011\u0003\u00038OWLPDWHO\\\u000f\u0003LW\u0003ZDV\u0003GHFLGHG\u0003WKDW\u00030\u00116\u0011\nZRXOG\u0003UHPDLQ\u0003DW\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003DQG\u00039LVWD\u00036FKRRO\u0003XQWLO\u0003'&)6\u0003GHFLGHG\u0003RQ\u0003D\u0003QHZ\nUHVLGHQWLDO\u0003SODFHPHQW\u0011\u0003\u00030\u00116\u0011\u0003ZDV\u0003QRW\u0003RIIHUHG\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003DV\u0003SDUW\u0003RI\u0003KHU\u0003,(3\u0011\u0003\u00037KH\nHGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003DJUHHG\u0003WR\u0003WKH\u0003LPSOHPHQWDWLRQ\u0003RI\u0003WKH\u0003,(3\u0003EXW\u0003GLVDJUHHG\u0003WKDW\u0003LW\nFRQVWLWXWHG\u0003D\u0003)$3(\u0011\n\n )\u0011 -DQXDU\\\u0003\u0015\u0013\u0014\u0018\u00030RYHPHQW\u0003WR\u0003D\u0003/HVV\u00035HVWULFWLYH\u0003)DFLOLW\\\n\n ,Q\u0003RU\u0003DERXW\u0003PLG\u0010-DQXDU\\\u0003\u0015\u0013\u0014\u0018\u000f\u0003'&)6\u0003UHPRYHG\u00030\u00116\u0011\u0003IURP\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0003DQG\nSODFHG\u0003KHU\u0003LQ\u0003D\u0003OHVV\u0003UHVWULFWLYH\u0003IDFLOLW\\\u0003RXWVLGH\u0003WKH\u0003ERXQGDULHV\u0003RI\u0003WKH\u0003'LVWULFW\u0011\u0003\u0003$OPRVW\nLPPHGLDWHO\\\u000f\u00030\u00116\u0011\u0003UDQ\u0003DZD\\\u0003IURP\u0003WKLV\u0003IDFLOLW\\\u0011\u0003\u0003+HU\u0003ZKHUHDERXWV\u0003ZHUH\u0003XQNQRZQ\u0003IRU\u0003IRXU\nGD\\V\u0003DQG\u0003VKH\u0003GLG\u0003QRW\u0003DWWHQG\u0003VFKRRO\u0003GXULQJ\u0003WKLV\u0003WLPH\u0011\u0003\u0003(YHQWXDOO\\\u000f\u0003VKH\u0003ZDV\u0003ORFDWHG\u0003DQG\nUHWXUQHG\u0003E\\\u0003SROLFH\u0003WR\u0003WKH\u0003FDUH\u0003RI\u0003'&)6\u0011\u0003\u0003\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u001a\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 8 of 25 Page ID #:2373\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n '&)6\u0003WKHQ\u0003PDGH\u0003DQ\u0003HPHUJHQF\\\u0003SODFHPHQW\u0003IRU\u00030\u00116\u0011\u0003LQ\u0003'HOLOX\u0003$FKLHYHPHQW\u0003+RPH\u000f\nD\u0003WHPSRUDU\\\u0003IDFLOLW\\\u0011\u0003\u0003:KLOH\u0003WKH\u0003IDFLOLW\\\u0003LV\u0003GHVLJQHG\u0003IRU\u0003WHPSRUDU\\\u0003SODFHPHQW\u000f\u00030\u00116\u0011\nUHPDLQHG\u0003WKHUH\u0003IRU\u0003\u0016\u0013\u0003GD\\V\u0011\u0003\u0003'&)6\u0003HYHQWXDOO\\\u0003SODFHG\u00030\u00116\u0011\u0003LQ\u0003'LDPRQGDOH\u000f\u0003D\u0003OHYHO\u0003\u0014\u0015\nUHVLGHQWLDO\u0003/&,\u0003ZLWKLQ\u0003WKH\u0003ERXQGDULHV\u0003RI\u0003WKH\u0003'LVWULFW\u0011\u0003\u0003'LDPRQGDOH\u0003ZDV\u0003DOVR\u0003D\u0003OHVV\nUHVWULFWLYH\u0003HQYLURQPHQW\u0003WKDQ\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0011\u0003\u0003:KLOH\u00030\u00116\u0011\u0003ZDV\u0003UHVLGLQJ\u0003DW\u0003'HOLOX\u0003DQG\n'LDPRQGDOH\u000f\u00030\u00116\u0011¶V\u0003\u0003DWWRUQH\\V\u0003\u0003ILOHG\u0003D\u0003³VWD\\\u0003SXW´\u0003PRWLRQ\u000f\u0003SXUVXDQW\u0003WR\u0003\u0015\u0013\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0017\u0014\u0018\u000bM\f\u000f\nWR\u0003NHHS\u00030\u00116\u0011\u0003HQUROOHG\u0003DW\u0003WKH\u00039LVWD\u00036FKRRO\u000f\u0003ZKLFK\u0003ZDV\u0003WKH\u0003HGXFDWLRQDO\u0003SODFHPHQW\u0003VWDWHG\u0003RQ\nKHU\u0003ODWHVW\u0003,(3\u0011\u0003\u00031RWDEO\\\u000f\u0003ZKLOH\u0003WKH\u0003,(3\u0003FDOOHG\u0003IRU\u0003HGXFDWLRQDO\u0003SODFHPHQW\u0003DW\u0003WKH\u00039LVWD\nSchool\u000f\u0003LW\u0003GLG\u0003QRW\u0003FDOO\u0003IRU\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003FRPSRQHQW\u0003DW\u0003WKH\u00039LVWD\u0003Facility\u0011\u0003\u0003,QGHHG\u000f\nQRQH\u0003RI\u00030\u00116\u0011¶V\u0003,(3V\u0003UHIOHFWHG\u0003DQ\\\u0003QHHG\u0003IRU\u0003D\u0003SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\nOLNH\u0003WKH\u00039LVWD\u0003)DFLOLW\\\u0011\n\n,9\u0011 $'0,1,675$7,9(\u0003352&((',16\n\n 2Q\u00031RYHPEHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u000f\u0003VKRUWO\\\u0003DIWHU\u0003KHU\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u000f\u00030\u00116\u0011\nLQLWLDWHG\u0003D\u0003GXH\u0003SURFHVV\u0003KHDULQJ\u0003EHIRUH\u0003WKH\u00032IILFH\u0003RI\u0003$GPLQLVWUDWLYH\u0003+HDULQJV\u0003\u000b³2$+´\f\u0011\u0003\n6KH\u0003DOOHJHG\u0003WKDW\u0003WKH\u0003'LVWULFW\u0003IDLOHG\u0003WR\u0003SURYLGH\u0003KHU\u0003ZLWK\u0003D\u0003)$3(\u000f\u0003LQ\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u000f\nRQ\u0003WZHOYH\u0003VHSDUDWH\u0003JURXQGV\u0011\u0003\u0003)ROORZLQJ\u0003D\u0003VHYHQ\u0010GD\\\u0003KHDULQJ\u0003ZLWK\u0003QXPHURXV\u0003ZLWQHVVHV\u000f\nWKH\u0003$/-\u0003FRQFOXGHG\u0003WKDW\u0003WKH\u0003'LVWULFW\u0003³SURYLGHG\u0003>0\u00116\u0011@\u0003D\u0003)$3(\u0003LQ\u0003DOO\u0003DVSHFWV\u0003DW\u0003LVVXH\u0003LQ\u0003WKLV\nFDVH\u0003EXW\u0003RQH´²QDPHO\\\u000f\u0003WKH\u0003$/-\u0003FRQFOXGHG\u0003WKDW\u0003WKH\u0003'LVWULFW¶V\u0003IDLOXUH\u000f\u0003GXULQJ\u0003WKH\u00032FWREHU\n\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u000f\u0003WR\u0003FRQVLGHU\u0003'U\u0011\u00030DU\\\u0003/DUJH¶V\u0003QHXURSV\\FKRORJLFDO\u0003DVVHVVPHQW\nUHSRUW\u0003SHUWDLQLQJ\u0003WR\u00030\u00116\u0011\u0003FRQVWLWXWHG\u0003D\u0003SURFHGXUDO\u0003YLRODWLRQ\u0003RI\u0003WKH\u0003,'($\u0003ZKLFK\u0003GHSULYHG\n0\u00116\u0011\u0003RI\u0003D\u0003)$3(\u0011\u0003\u00036HH\u0003$5\u0003\u0014\u001a\u0018\u0018\u0003\u000b$/-¶V\u0003GLVFXVVLRQ\u0003RI\u00036WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0019\f\f\u0011\n\n 2I\u0003WKH\u0003HOHYHQ\u0003LVVXHV\u0003RQ\u0003ZKLFK\u0003WKH\u0003$/-\u0003UXOHG\u0003LQ\u0003IDYRU\u0003RI\u0003WKH\u0003'LVWULFW\u000f\u00030\u00116\u0011\u0003DSSHDOV\nRQO\\\u0003WKH\u0003IROORZLQJ\u0003WKUHH\u0003LVVXHV\u001d\n\n\n\n\n A. Whether the District deprived Student of a FAPE by\n reason of the following:\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0018\f\u001d IDLOLQJ\u0003WR\u0003GLVFXVV\u0003SODFHPHQW\u0003DW\u0003D\n UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003DW\u0003WKH\n 2FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJ\u001e\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u001b\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 9 of 25 Page ID #:2374\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u001a\f\u001d SUHGHWHUPLQLQJ\u0003WKH\u0003TXHVWLRQ\u0003RI\n SODFHPHQW\u0003DW\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\n IDFLOLW\\\u0003DW\u0003WKH\u00032FWREHU\u0003\u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\n PHHWLQJ\u001e\n\n 6WXGHQW\u0003,VVXH\u0003\u0014\u000b$\f\u000b\u0014\u0014\f\u001d IDLOLQJ\u0003WR\u0003RIIHU\u0003SODFHPHQW\u0003DW\u0003D\n UHVLGHQWLDO\u0003WUHDWPHQW\u0003IDFLOLW\\\u0003LQ\u0003WKH\n )HEUXDU\\\u0003\u0015\u0019\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003DQG\u00032FWREHU\n \u0015\u0014\u000f\u0003\u0015\u0013\u0014\u0017\u0003,(3\u0003PHHWLQJV\u0011\n\n 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&,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0014\u0014\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 12 of 25 Page ID #:2377\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 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2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 13 of 25 Page ID #:2378\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n >7@KH\u0003FRQJUHVVLRQDO\u0003HPSKDVLV\u0003XSRQ\u0003IXOO\u0003SDUWLFLSDWLRQ\u0003RI\n FRQFHUQHG\u0003SDUWLHV\u0003WKURXJKRXW\u0003WKH\u0003GHYHORSPHQW\u0003RI\u0003WKH\u0003,(3\u000f\u0003DV\n ZHOO\u0003DV\u0003WKH\u0003UHTXLUHPHQWV\u0003WKDW\u0003VWDWH\u0003DQG\u0003ORFDO\u0003SODQV\u0003EH\u0003VXEPLWWHG\n WR\u0003WKH\u00036HFUHWDU\\\u0003IRU\u0003DSSURYDO\u000f\u0003GHPRQVWUDWHV\u0003WKH\u0003OHJLVODWLYH\n FRQYLFWLRQ\u0003WKDW\u0003adequate compliance with the procedures\n prescribed would in 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'U\u0011\u00030DU\\\u0003/DUJH\u000f\u00030\u00116\u0011¶V\u0003H[SHUW\u000f\u0003WHVWLILHG\u0003DW\u0003WKH\u00032$+\u0003KHDULQJ\u0003WKDW\u0003³>L@Q\u0003KHU\u0003RSLQLRQ\u000f\n>0\u00116\u0011@\u0003UHTXLUHG\u0003WKH\u0003OHYHO\u0003\u0014\u0017\u0003UHVLGHQWLDO\u0003SODFHPHQW\u0003ZLWK\u0003WKH\u0003DWWDFKHG\u0003QRQSXEOLF\u0003VFKRRO>@\nEHFDXVH\u0003VKH\u0003QHHGHG\u0003D\u0003KLJK\u0003OHYHO\u0003RI\u0003FRQWDLQPHQW\u0003ERWK\u0003UHVLGHQWLDOO\\\u0003and educationally\u0011´\u0003\n$5\u0003\u0014\u001a\u001b\u0018\u0003\u000b$/-\u0003)LQGLQJ\u0003RI\u0003)DFW\u00031R\u0011\u0003\u0014\u0015\u001b\f\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n ,Q\u0003SDUWLFXODU\u000f\u0003>0\u00116\u0011@\u0003UHTXLUHG\u0003PLOLHX\u0003WKHUDS\\\u0003RQ\u0003D\u0003UHJXODU\u0003EDVLV\n DQG\u0003WUDLQHG\u0003VWDII\u0003WR\u0003UHVSRQG\u0003WR\u0003D\u0003UDQJH\u0003RI\u0003VLWXDWLRQV\u0011\u0003\u0003>0\u00116\u0011@\n UHFHLYHG\u0003PLOLHX\u0003WKHUDS\\\u0003LQ\u0003WKH\u0003UHVLGHQFH\u000f\u0003DQG\u0003VRPH\u0003PLOLHX\n WKHUDS\\\u0003ZDV\u0003DOVR\u0003DYDLODEOH\u0003DW\u0003WKH\u0003VFKRRO\u0011\u0003\u0003$W\u0003WKH\u0003WLPH\u0003RI\u0003KHU\n DVVHVVPHQW\u000f\u0003'U\u0011\u0003/DUJH\u0003EHOLHYHG\u0003WKDW [M.S.] could not have\n benefitted from her nonpublic school placement if she had not\n also had a residential placement. [M.S.] needed the residence\n placement to provide the behavioral support she needed.\n\n,G\u0011\u0003\u000bHPSKDVLV\u0003DGGHG\f\u0011\n\n&9\u0010\u001c\u0013\u0003\u000b\u0013\u0019\u0012\u0013\u0017\f &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/ 3DJH\u0003\u0015\u0015\u0003RI\u0003\u0015\u0018\n\fCase 2:15-cv-05819-CAS-MRW Document 80 Filed 01/09/19 Page 23 of 25 Page ID #:2388\n\n 81,7('\u000367$7(6\u0003',675,&7\u0003&2857\n &(175$/\u0003',675,&7\u00032)\u0003&$/,)251,$\n\n &,9,/\u00030,187(6\u0003\u0010\u0003(1(5$/\n &DVH\u00031R\u0011 \u0015\u001d\u0014\u0018\u0010FY\u0010\u0013\u0018\u001b\u0014\u001c\u0010&$6\u001005: 'DWH -DQXDU\\\u0003\u001c\u000f\u0003\u0015\u0013\u0014\u001c\n 7LWOH 0\u0011\u00036\u0011\u0003Y\u0011\u0003/26\u0003$1(/(6\u000381,),('\u00036&+22/\u0003',675,&7\n\n 7KH\u0003UHFRUG\u0003DOVR\u0003GHPRQVWUDWHV\u0003WKDW\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003DQG\u0003DWWRUQH\\V\nKDYH\u000f\u0003DW\u0003WLPHV\u000f\u0003DSSHDUHG\u0003WR\u0003UHTXHVW\u0003DQ\u0003,(3\u0003UHIOHFWLQJ\u0003D\u0003SODFHPHQW\u0003LQ\u0003D\u0003UHVLGHQWLDO\u0003WUHDWPHQW\nFHQWHU\u0011\u0003\u0003)RU\u0003H[DPSOH\u000f\u0003ZKLOH\u00030\u00116\u0011¶V\u0003HGXFDWLRQDO\u0003ULJKWV\u0003KROGHU\u0003VLJQHG\u0003WKH\u0003)HEUXDU\\\u0003\u0015\u001b\u000f\u0003\u0015\u0013\u0014\u0016\n,(3\u000f\u0003VKH\u0003GLVDJUHHG\u0003WKDW\u0003WKH\u0003,(3\u0003FRQVWLWXWHG\u0003D\u0003)$3(\u000f\u0003FRPPHQWLQJ\u0003DV\u0003IROORZV\u001d\u0003³,\u0003DJUHH\u0003WR\nLPSOHPHQW\u0003>VSHFLDO\u0003GD\\\u0003FODVV@\u0003SODFHPHQW\u0003ZKLOH\u0003>0\u00116\u0011@\u0003LV\u0003GHWDLQHG\u000f\u0003EXW\u0003PDLQWDLQ>@\u0003WKDW\u0003she\nrequires residential 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9,022,982	M. S., a minor, BY AND THROUGH her guardian ad litem R.H. v. LOS ANGELES UNIFIED SCHOOL DISTRICT, a Public Entity	M. S. v. L. A. Unified Sch. Dist.	2019-01-24	No. 16-56472	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016219/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022982/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: M. S., a minor, BY AND THROUGH her guardian ad litem R.H. v. LOS ANGELES UNIFIED SCHOOL DISTRICT, a Public Entity\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,584,833		Carl Curtis v. Irwin Industries, Inc.	2019-01-25	16-56515	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sandra S. Ikuta and John B. Owens, Circuit Judges, and Haywood S. Gilliam, Jr.,* District Judge.", "parties": "", "opinions": [{"author": "IKUTA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CARL CURTIS, an individual; No. 16-56515\n ARTHUR WILLIAMS,\n Plaintiffs-Appellants, D.C. No.\n 2:15-cv-02480-ODW-E\n v.\n\n IRWIN INDUSTRIES, INC., a OPINION\n California corporation; DOES,\n 1 through 100, inclusive,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Central District of California\n Otis D. Wright II, District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Pasadena, California\n\n Filed January 25, 2019\n\n Before: Sandra S. Ikuta and John B. Owens, Circuit\n Judges, and Haywood S. Gilliam, Jr.,* District Judge.\n\n Opinion by Judge Ikuta\n\n\n \n The Honorable Haywood S. Gilliam, Jr., United States District\nJudge for the Northern District of California, sitting by designation.\n\f2 CURTIS V. IRWIN INDUSTRIES\n\n SUMMARY\n\n\n Labor Law\n\n The panel affirmed in part the district court’s dismissal of\na wage-and-hour suit and remanded in part.\n\n Plaintiffs worked for a company that conducted\noperations on oil platforms located off the coast of California,\non the Outer Continental Shelf. The panel held that\nplaintiffs’ claim for overtime pay was preempted under § 301\nof the Labor Management Relations Act because California\novertime law does not apply to an employee working under\na qualifying collective bargaining agreement; therefore,\nplaintiffs’ right to overtime existed solely as a result of their\nCBAs.\n\n The panel remanded to the district court to review meal\nand rest period and minimum wage claims, as well as\nderivative claims, and address issues of preemption under\n§ 301 and the Outer Continental Shelf Lands Act, as well as\nissues of California labor law.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f CURTIS V. IRWIN INDUSTRIES 3\n\n COUNSEL\n\nMichael A. Strauss (argued) and Aris E. Karakalos, Strauss\n& Strauss APC, Ventura, California, for Plaintiffs-Appellants.\n\nRonald J. Holland (argued), Ellen M. Bronchetti, and\nChristopher M. Foster, DLA Piper LLP, San Francisco,\nCalifornia, for Defendant-Appellee.\n\n\n OPINION\n\nIKUTA, Circuit Judge:\n\n Carl Curtis brought a putative class action lawsuit against\nhis former employer, Irwin Industries (Irwin), alleging that\nIrwin denied him overtime pay, failed to give him meal and\nrest periods, and failed to pay him minimum wage for the\n12 hours he was off duty.1 Curtis’s claim for overtime pay is\npreempted under § 301 of the Labor Management Relations\nAct (LMRA), 29 U.S.C. § 185, because California overtime\nlaw does not apply to an employee working under a\nqualifying collective bargaining agreement, Cal. Lab. Code\n§ 514, and Curtis worked under such an agreement. We\nremand Curtis’s remaining claims to the district court to\naddress in the first instance.\n\n\n\n\n 1\n Arthur Williams is also a named plaintiff. However, because he\nraises the same arguments as Curtis, and the specific facts of his work for\nIrwin are not relevant to our disposition of the case, we refer only to Curtis\nin this appeal.\n\f4 CURTIS V. IRWIN INDUSTRIES\n\n I\n\n Curtis is a former employee of Irwin, a company that\nconducts operations on oil platforms located off the coast of\nCalifornia, on the Outer Continental Shelf.2 While working\nfor Irwin, Curtis was regularly scheduled to work seven 12-\nhour shifts in a seven-day period, with twelve hours on duty,\nfollowed by twelve hours off duty.\n\n As a member of United Steel, Paper and Forestry, Rubber,\nManufacturing, Energy, Allied Industrial and Service\nWorkers International Union, Local 1945 (Union), Curtis was\nsubject to two collective bargaining agreements (CBAs)\nbetween the Union and Irwin: the National Master\nAgreement by and between Irwin’s Operations Group and the\nUnion, and the National Master Agreement by and between\nIrwin’s Maintenance and Construction Group and the Union.\nBoth agreements include detailed provisions regarding wages,\novertime, and hours, as well as provisions requiring\nemployees to grieve and arbitrate disputes concerning the\napplication and terms of the CBAs.\n\n Without using the dispute-resolution provisions of the\nCBAs, Curtis filed a putative class action complaint against\nIrwin in California state court. The complaint was based on\nCurtis’s theory that his 12 off-duty hours counted as “hours\nworked” for purposes of California labor laws, see Cal. Lab.\nCode § 510, because, as a practical matter, he was unable to\nleave the oil platform during that time. Curtis relied on a\nrecent California Supreme Court case holding that security\nguards were “entitled to compensation for all on-call hours\n\n 2\n Curtis worked for Irwin from approximately December 2013 to\nApril 2014.\n\f CURTIS V. IRWIN INDUSTRIES 5\n\nspent at their assigned worksites under their employer’s\ncontrol.” Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833,\n836 (2015). Extending Mendiola’s reasoning from on-call\nhours to off-duty hours, Curtis argues that Irwin violated\nvarious California wage and hour laws by failing to recognize\nhis 12 hours of off-duty time as “hours worked.”\nSpecifically, the complaint alleges that Irwin denied him\novertime pay for the 12 hours he was off duty, see Cal. Lab.\nCode § 510, failed to give him meal and rest periods for that\nperiod, see Cal. Lab. Code §§ 226.7, 512, and failed to pay\nhim minimum wage for that period, see Cal. Lab. Code\n§§ 1194, 1197. The complaint also raised four claims that are\nderivative of his overtime, meal and rest period, and\nminimum wage claims.3\n\n Irwin removed the action to district court, relying on\n§ 301 of the LMRA, 29 U.S.C. § 185, and the Outer\nContinental Shelf Lands Act (OCSLA), 43 U.S.C.\n§ 1331–1356b, as the basis for federal jurisdiction. Once in\nfederal court, Irwin filed a motion to dismiss on the ground\nthat Curtis’s claims are preempted by § 301 of the LMRA. In\nhis opposition, Curtis raised a number of arguments,\nincluding his contentions that the CBAs did not apply at all\nbecause their scope does not extend to work conducted on the\nOuter Continental Shelf; California’s minimum wage and\nhour standards are not preempted by § 301 of the LMRA\n\n 3\n These derivative claims are: (1) failure to provide an accurate pay\nstub, Cal. Lab. Code § 226(e); (2) engaging in unfair business practices,\nCal. Bus. & Prof. Code § 17200; (3) failure to pay the correct wages at\ntermination, Cal. Lab. Code § 201; and (4) a demand for civil penalties\nunder California’s Private Attorneys General Act, Cal. Lab. Code § 2699.\nThese claims can succeed only if Curtis prevails on his claims that Irwin\nviolated California labor law by failing to recognize his 12 off-duty hours\nas “hours worked,” see Cal Lab. Code § 510.\n\f6 CURTIS V. IRWIN INDUSTRIES\n\nunder binding state and federal precedents; Curtis’s overtime\nand meal break claims were not precluded by section 514 of\nthe California Labor Code; and California law applied to the\nOuter Continental Shelf.\n\n The district court granted Irwin’s motion to dismiss. The\ncourt based this conclusion solely on the ground that there\nwas a need to interpret the CBAs in order to resolve the\nparties’ dispute regarding their applicability, and therefore the\nstate law claims were preempted by § 301 of the LMRA.\nAdditionally, the district court ordered the parties to proceed\nto arbitration under the terms of the applicable CBAs.\n\n Curtis filed a motion for reconsideration, arguing that his\nclaims were founded on non-negotiable state-law rights that\nare independent of the CBAs. In his reply to Irwin’s\nopposition, Curtis stated, for the first time: “Plaintiffs are\nwilling to concede that the CBAs are generally applicable to\nPlaintiffs because such a concession has zero effect on their\nultimate rights to pursue their statutorily-guaranteed rights in\ncourt—a right that exists independently of these CBAs.”\n\n Given the timing and minimal nature of this concession,\nit is not surprising that the district court missed it.\nAccordingly, the district court affirmed its dismissal of\nCurtis’s claims as preempted under § 301 on the ground that\nCurtis disputed the applicability of the CBAs, and it would be\nnecessary to give the CBAs “more than merely a cursory\nreading to determine whether they actually apply to [Curtis’s]\nclaims.” The court did not address any other basis for\npreemption. However, the district court retracted the order to\narbitrate.\n\f CURTIS V. IRWIN INDUSTRIES 7\n\n Curtis timely appealed. The district court had jurisdiction\nunder 29 U.S.C. § 185(c),4 and we have jurisdiction under\n28 U.S.C. § 1291. We review de novo a district court’s\ndismissal under Rule 12(b)(6) of the Federal Rules of Civil\nProcedure. Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir.\n2017). We accept “all factual allegations in the complaint as\ntrue and construe the pleadings in the light most favorable to\nthe nonmoving party.” Rowe v. Educ. Credit Mgmt. Corp.,\n559 F.3d 1028, 1029–30 (9th Cir. 2009) (internal quotations\nmarks and citation omitted).\n\n II\n\n The central dispute on appeal is whether Curtis’s claims,\nwhich he styles as state law claims, are preempted by § 301\nof the LMRA. Section 301 provides that “[s]uits for violation\nof contracts between an employer and a labor organization\n. . . may be brought in any district court of the United\nStates.” 29 U.S.C. § 185(a). Although § 301 contains no\nexpress language of preemption, the Supreme Court has long\ninterpreted the LMRA as authorizing federal courts to create\na uniform body of federal common law to adjudicate disputes\nthat arise out of labor contracts. See Allis-Chalmers Corp. v.\nLueck, 471 U.S. 202, 210 (1985); Teamsters v. Lucas Flour\nCo., 369 U.S. 95, 103–04 (1962). Thus, any suit “alleging a\nviolation of a provision of a labor contract must be brought\nunder § 301 and be resolved by reference to federal law.”\nLueck, 471 U.S. at 210. “A state rule that purports to define\nthe meaning or scope of a term in a contract suit therefore is\n\n\n 4\n Irwin asserts that the district court had jurisdiction pursuant to\nOCSLA as well. Because we hold that jurisdiction over the overtime\nclaim was proper under § 301 of the LMRA, we do not address whether\ncomplete preemption exists under OCSLA.\n\f8 CURTIS V. IRWIN INDUSTRIES\n\npre-empted by federal labor law.” Id. Although normally\nfederal preemption is a defense that does not authorize\nremoval to federal court, § 301 has such “extraordinary pre-\nemptive power” that it “converts an ordinary state common\nlaw complaint into one stating a federal claim for purposes of\nthe well-pleaded complaint rule.” Metro. Life Ins. v. Taylor,\n481 U.S. 58, 65 (1987). In other words, a civil complaint\nraising claims preempted by § 301 raises a federal question\nthat can be removed to a federal court. See id.\n\n As explained in Alaska Airlines Inc. v. Schurke, federal\npreemption under § 301 “is an essential component of federal\nlabor policy” for three reasons. 898 F.3d 904, 917–18 (9th\nCir. 2018) (en banc). First, “a collective bargaining\nagreement is more than just a contract; it is an effort to erect\na system of industrial self-government.” Id. at 918 (internal\nquotation marks and citations omitted). Thus, a CBA is part\nof the “continuous collective bargaining process.” United\nSteelworkers v. Enter. Wheel & Car Corp. (Steelworkers III),\n363 U.S. 593, 596 (1960). Second, because the CBA is\ndesigned to govern the entire employment relationship,\nincluding disputes which the drafters may not have\nanticipated, it “calls into being a new common law—the\ncommon law of a particular industry or of a particular plant.”\nUnited Steelworkers v. Warrior & Gulf Navigation Co.\n(Steelworkers II), 363 U.S. 574, 579 (1960). Accordingly,\nthe labor arbitrator is usually the appropriate adjudicator for\nCBA disputes because he was chosen due to the “parties’\nconfidence in his knowledge of the common law of the shop\nand their trust in his personal judgment to bring to bear\nconsiderations which are not expressed in the contract as\ncriteria for judgment.” Id. at 582. Third, grievance and\narbitration procedures “provide certain procedural benefits,\nincluding a more prompt and orderly settlement of CBA\n\f CURTIS V. IRWIN INDUSTRIES 9\n\ndisputes than that offered by the ordinary judicial process.”\nSchurke, 898 F.3d at 918 (internal quotation marks and\ncitations omitted).\n\n While § 301 preemption furthers important interests, the\nSupreme Court has stressed that “§ 301 cannot be read\nbroadly to pre-empt nonnegotiable rights conferred on\nindividual employees as a matter of state law.” Livadas v.\nBradshaw, 512 U.S. 107, 123 (1994). To extend § 301\npreemption beyond its defined role “would be inconsistent\nwith congressional intent.” Lueck, 471 U.S. at 212. For this\nreason, “[s]etting minimum wages, regulating work hours and\npay periods, requiring paid and unpaid leave, protecting\nworker safety, prohibiting discrimination in employment, and\nestablishing other worker rights remains well within the\ntraditional police power of the states,” and claims alleging\nviolations of such protections will not necessarily be\npreempted, even when the plaintiff is covered by a CBA.\nSchurke, 898 F.3d at 919–20.\n\n To ensure that § 301 preemption “extends only as far as\nnecessary to protect the role of labor arbitration in resolving\nCBA disputes,” we employ a two-step test. Id. at 913–14.\nFirst, we ask whether the asserted cause of action involves a\n“right [that] exists solely as a result of the CBA.” Kobold v.\nGood Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th\nCir. 2016) (quoting Burnside v. Kiewit Pac. Corp., 491 F.3d\n1053, 1059 (9th Cir. 2007)). The essential inquiry is this:\nDoes the claim seek “purely to vindicate a right or duty\ncreated by the CBA itself[?]” Schurke, 898 F.3d at 921. If\nso, “then the claim is preempted, and [the] analysis ends\nthere.” Burnside, 491 F.3d at 1059.\n\f10 CURTIS V. IRWIN INDUSTRIES\n\n But if not, we proceed to the second step and ask\n“whether a plaintiff’s state law right is substantially\ndependent on analysis of [the CBA],” which turns on whether\nthe claim cannot be resolved by simply “look[ing] to” versus\n“interpreting” the CBA. Kobald, 832 F.3d at 1033 (internal\nquotation marks and citations omitted). We have stressed\nthat “interpretation” is construed narrowly in this context.\nSee Schurke, 898 F.3d at 921. At this second step of the\nanalysis, “claims are only preempted to the extent there is an\nactive dispute over ‘the meaning of contract terms.’” Id.\n(quoting Livadas, 512 U.S. at 124). Accordingly, a state law\nclaim may avoid preemption if it does not raise questions\nabout the scope, meaning, or application of the CBA. See\nLivadas, 512 U.S. at 125.\n\n III\n\n We first apply this framework to Curtis’s claims that\nIrwin violated California labor law by failing to recognize his\n12 off-duty hours as “hours worked,” see Cal Lab. Code\n§ 510(a), in order to determine whether these claims are\npreempted by § 301 of the LMRA.\n\n We begin with Curtis’s claim that Irwin violated section\n510(a) of the California Labor Code, which provides a default\nrule for overtime.5 This section provides that any work in\n\n 5\n California Labor Code section 510(a) states, in pertinent part:\n\n (a) Eight hours of labor constitutes a day’s work. Any\n work in excess of eight hours in one workday and any\n work in excess of 40 hours in any one workweek and\n the first eight hours worked on the seventh day of work\n in any one workweek shall be compensated at the rate\n of no less than one and one-half times the regular rate\n\f CURTIS V. IRWIN INDUSTRIES 11\n\nexcess of a specified number of hours “shall be compensated”\nat a specified rate of pay. Cal. Lab. Code § 510(a). Curtis\nargues that Irwin violated this section by failing to pay him\nthe required overtime rates for the 12 hours he spent off-duty.\nFurther, Curtis argues that this section gives him a non-\nnegotiable state right to such overtime pay for his 12 off-duty\nhours, independent of any interpretation of the CBA.\n\n Curtis’s argument fails, however, in light of section\n510(a)(2), which provides that the “requirements of this\nsection do not apply to the payment of overtime\ncompensation to an employee working pursuant to . . . [a]n\nalternative workweek schedule adopted pursuant to a\ncollective bargaining agreement pursuant to Section 514.”\nSection 514 in turn states that “Sections 510 and 511 do not\napply to an employee covered by a valid collective bargaining\nagreement if the agreement expressly provides for the wages,\nhours of work, and working conditions of the employees, and\nif the agreement provides premium wage rates for all\n\n\n of pay for an employee. Any work in excess of\n 12 hours in one day shall be compensated at the rate of\n no less than twice the regular rate of pay for an\n employee. In addition, any work in excess of eight\n hours on any seventh day of a workweek shall be\n compensated at the rate of no less than twice the regular\n rate of pay of an employee. Nothing in this section\n requires an employer to combine more than one rate of\n overtime compensation in order to calculate the amount\n to be paid to an employee for any hour of overtime\n work. The requirements of this section do not apply to\n the payment of overtime compensation to an employee\n working pursuant to any of the following: . . . (2) An\n alternative workweek schedule adopted pursuant to a\n collective bargaining agreement pursuant to Section\n 514.\n\f12 CURTIS V. IRWIN INDUSTRIES\n\novertime hours worked and a regular hourly rate of pay for\nthose employees of not less than 30 percent more than the\nstate minimum wage.” Cal. Lab. Code § 514. By its terms,\ntherefore, the default definition of overtime and overtime\nrates in section 510 does not apply to an employee who is\nsubject to a qualifying CBA. If Curtis’s CBAs in this case\nmeet the requirements of section 514, Curtis’s right to\novertime “exists solely as a result of the CBA,” and therefore\nis preempted under § 301. Kobold, 832 F.3d at 1032.\n\n Curtis does not dispute that both CBAs expressly provide\nfor “the wages, hours of work, and working conditions of the\nemployees, and . . . premium wage rates for all overtime\nhours worked and a regular hourly rate of pay for those\nemployees of not less than 30 percent more than the state\nminimum wage,” as required by section 514. See Cal. Lab.\nCode § 514. Rather, he argues that the CBAs do not meet the\nrequirements of section 514 because the CBAs’s definition of\novertime (and overtime rates) is not the same as section 510’s\ndefinition of overtime (and overtime rates). Put differently,\nCurtis argues that to qualify for the exemption from section\n510’s definition of overtime, a CBA must provide employees\nwith overtime that is equivalent to section 510’s definition of\novertime.\n\n This interpretation of section 510 fails as a matter of\nstatutory interpretation, and as construed by state courts.\nObviously, if every employer had to meet all the requirements\nof section 510(a), it would render the collective bargaining\nexception in sections 510(a)(2) and 514 superfluous. The\nCalifornia Supreme Court has long made clear that\n“interpretations which render any part of a statute superfluous\nare to be avoided.” Wells v. One2One Learning Found.,\n39 Cal. 4th 1164, 1207 (2006), as modified (Oct. 25, 2006).\n\f CURTIS V. IRWIN INDUSTRIES 13\n\n Moreover, California courts have rejected this\ninterpretation of section 510. See Vranish v. Exxon Mobil\nCorp., 223 Cal. App. 4th 103, 107 (2014). In Vranish, union-\nrepresented workers claimed that their employer violated\nsection 510 by failing to pay premium wages for all\n“overtime hours worked.” Id. at 106. While it was\n“undisputed that plaintiffs were compensated for all overtime\nworked in accordance with the CBA,” the CBA’s definition\nof “overtime” was less generous than section 510’s definition.\nId. Specifically, the CBA provided “that overtime is not paid\nfor hours worked between eight and 12 in a workday,” while\nsection 510 required that overtime wages be paid for any\nwork in excess of eight hours in one workday. Id. at 107,\n109. The parties disputed whether the employer was\n“required to pay plaintiffs ‘overtime,’ as that word is defined\nin section 510, subdivision (a), or was it only required to pay\na premium for overtime worked as that word is defined in the\nCBA.” Id. at 109. The court concluded that “pursuant to the\nplain statutory language, . . . legislative history and opinions\nand comments from the [California Division of Labor\nStandards Enforcement]” an employer is required to pay only\nfor overtime as defined by a qualifying CBA. Id. at 113.\nThus, if a CBA satisfies the requirements of section 514, the\nrequirements of section 510(a) “do not apply.” Cal. Lab.\nCode §§ 510(a), 514.\n\n Further, Vranish noted that this “interpretation makes\nsense.” 223 Cal. App. 4th at 111. While section 510\nestablishes a default definition of overtime applicable to non-\nunionized employees, unionized employees “have sought and\nreceived alternative wage protections through the collective\nbargaining process.” Id. (quoting Firestone v. S. Cal. Gas\nCo., 219 F.3d 1063, 1067 (9th Cir. 2000)). Thus, the\nCalifornia legislature deemed it appropriate to allow\n\f14 CURTIS V. IRWIN INDUSTRIES\n\nunionized employees to contract around section 510(a)’s\nrequirements by “bargain[ing] over not only the rate of\novertime pay, but also when overtime pay will begin.” Id.\n(internal quotation marks and citation omitted). Accordingly,\nwhen such a bargain has been struck, courts look to the CBA\nto determine the definition of “overtime.” See Flowers v.\nL.A. Cty. Metro. Transp. Auth., 243 Cal. App. 4th 66, 85\n(2015) (holding that the exemption for collective bargaining\nagreements in section 514 allows parties to “contractually\nagree, through the collective bargaining process, to exclude\nthe specified tasks from the definition of ‘overtime hours\nworked’”).\n\n Curtis argues that we should adhere to our analysis in\nGregory v. SCIE, LLC, 317 F.3d 1050, 1053 (9th Cir. 2003),\nwhich was issued before Vranish was decided. Gregory\nassumed that the collective bargaining agreement at issue met\nthe requirements of section 514 and provided “premium wage\nrates” for overtime hours worked, as “overtime hours” were\ndefined in the CBA. Id. But without the benefit of any\nCalifornia cases, Gregory held that section 510, rather than a\nCBA, defined which hours constituted “overtime hours.” Id.\nat 1053 n.4. Under this interpretation, we held it was\nnecessary to interpret state law in order to resolve the parties’\ndispute, and therefore the employee’s claim was not\npreempted. Id. at 1054.\n\n Curtis’s argument fails, however, because we are bound\nto follow the rulings of intermediate state courts “absent\nconvincing evidence that the California Supreme Court would\nreject th[ose] interpretation[s].” In re Watts, 298 F.3d 1077,\n1082–83 (9th Cir. 2002) (collecting cases); see also Muniz v.\nUnited Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013).\nBecause Vranish and Flowers provided a reasonable statutory\n\f CURTIS V. IRWIN INDUSTRIES 15\n\ninterpretation that avoided rendering sections 510(a)(2) and\n514 superfluous, and was consistent with legislative history,\nsee Vranish, 223 Cal. App. 4th at 109–10, we see no reason\nthat the California Supreme Court would reject it.\nAccordingly, we conclude that Gregory was overruled by\nintervening California case law.\n\n Under the reasoning of Vranish and Flowers, Curtis’s\nCBAs in this case meet the requirements of section 514, and\ntherefore Curtis’s claim for overtime pay is controlled by his\nCBAs. Because Curtis’s right to overtime “exists solely as a\nresult of the CBA,” Kobold, 832 F.3d at 1032, his claim that\nIrwin violated overtime requirements by not paying him for\nthe 12 off-duty hours is preempted under § 301. Thus, his\nclaim fails at step one of the preemption analysis.6\n\n IV\n\n We now turn to Curtis’s remaining claims. Curtis argues\nthat Irwin improperly denied him rest and meal periods\nduring the 12 hours he was off duty, in violation of sections\n226.7 and 512(a) of the California Labor Code. He also\nclaims that Irwin violated sections 1194 and 1197 of the\nCalifornia Labor Code, which establish a right to receive the\n“legal minimum wage” during this 12-hour off-duty period.\n\n Irwin, in turn, argues that Curtis’s rights to rest and meal\nperiods and to a minimum wage substantially depend on an\nanalysis of the CBAs, and therefore are preempted under\n\n\n 6\n Because we hold that Curtis’s state law overtime claim is preempted\nby § 301, we need not address whether Curtis “clearly and unmistakably”\nconsented to the arbitration of his state law claims pursuant to 14 Penn\nPlaza LLC v. Pyett, 556 U.S. 247, 251 (2009).\n\f16 CURTIS V. IRWIN INDUSTRIES\n\n§ 301. According to Irwin, California’s Industrial Welfare\nCommission has issued an order that exempts an employer\nfrom providing the statutory meal and rest breaks where a\nqualifying CBA is in place. See Wage Order 16-2001, Cal.\nCode Regs. tit. 8, § 11160(11). Further, Irwin argues that\nresolving Curtis’s minimum wage claims requires an analysis\nof the CBAs to determine the degree of Irwin’s control over\nCurtis’s off-duty activities, which Mendiola deemed to be the\ncentral inquiry for overtime claims.\n\n In addition to these preemption issues, there remains a\ndispute as to whether Curtis’s meal and rest period, final pay,\nand pay stub claims are preempted by OCSLA. Under\nOCSLA, federal law generally governs claims relating to the\nOuter Continental Shelf, but the civil and criminal laws of\neach adjacent state are deemed to be applicable federal law to\nthe extent they are “applicable and not inconsistent” with\nfederal law. 43 U.S.C. § 1333(a)(2)(A). In Newton v. Parker\nDrilling Management Services, Ltd., we held that claims\nbrought pursuant to California’s minimum wage and overtime\nlaws are applicable and not inconsistent with the Fair Labor\nStandards Act, and therefore applied on the Outer Continental\nShelf. 881 F.3d 1078, 1084 (9th Cir. 2018), cert granted, ___\nS. Ct. ___, 2019 WL 166875 (U.S. Jan. 11, 2019). But\nNewton did not resolve whether California’s meal period,\nfinal pay, and pay stub laws are “applicable” and “not\ninconsistent with existing federal law,” instead remanding\nthose claims to the district court. Id. at 1099. Nor did\nNewton address whether the LMRA (or the National Labor\nRelations Act) is consistent with California labor law.\n\n The district court did not consider any of these issues,\nfocusing instead on Curtis’s argument that the CBAs did not\napply to his activities on the Outer Continental Shelf.\n\f CURTIS V. IRWIN INDUSTRIES 17\n\nAlthough Curtis conceded the applicability of the CBAs in\nhis motion to reconsider reply brief, the district court did not\nconsider Curtis’s claims in light of this concession.7\nMoreover, these claims raise complex issues of state law that\nhave not been fully briefed by the parties.8 Because the\ndistrict court is better able to decide these questions in the\nfirst instance, see Ariz. Libertarian Party, Inc. v. Bayless,\n351 F.3d 1277, 1283 (9th Cir. 2003), we remand to the\ndistrict court to review Curtis’s meal and rest period and\nminimum wage claims, as well as the four derivative claims.9\n\n AFFIRMED IN PART AND REMANDED IN PART.\n\n\n\n 7\n Because Curtis first conceded that the CBAs apply to him in his\nmotion for reconsideration reply brief, Irwin argues that Curtis is\nprecluded from arguing that his claims are not preempted by § 301 even\nthough the CBAs apply. But Curtis vigorously argued that his claims\nwere not preempted by § 301 before the district court. Because “it is\nclaims that are deemed waived or forfeited, not arguments,” we reject\nIrwin’s contentions that Curtis waived this argument. United States v.\nPallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).\n 8\n The parties have not addressed, for example, whether Curtis’s claim\nthat Irwin denied him meal periods in violation of California Labor Code\nsection 512(a) requires an analysis of whether Curtis is “an employee\nspecified in” section 512(f), in which case Curtis may be subject to the\nCBA exemption in section 512(e). Nor did the parties discuss whether the\nCBA exemption applies to Curtis due to Wage Order 16-2001, Cal. Code\nRegs. tit. 8, § 11160(11), and whether the Wage Order could be\n“harmonize[d]” with section 512. See Brinker Rest. Corp. v. Superior\nCourt, 53 Cal. 4th 1004, 1027 (2012). In addition, as explained above,\nCurtis argues that Mendiola, 60 Cal. 4th 833, provides the legal basis for\nhis minimum wage claim, but the parties failed to fully address whether\napplying Mendiola here requires an analysis of the CBA.\n 9\n The parties shall bear their own costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362086/", "author_raw": "IKUTA, Circuit Judge:"}]}	SANDRA S IKUTA	JOHN B OWENS	HAYWOOD S GILLIAM JR	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584833/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Carl Curtis v. Irwin Industries, Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CARL CURTIS, an individual; No. 16-56515\n ARTHUR WILLIAMS,\n Plaintiffs-Appellants, D.C. No.\n 2:15-cv-02480-ODW-E\n v.\n\n IRWIN INDUSTRIES, INC., a OPINION\n California corporation; DOES,\n 1 through 100, inclusive,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Central District of California\n Otis D. Wright II, District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Pasadena, California\n\n Filed January 25, 2019\n\n Before: Sandra S. Ikuta and John B. Owens, Circuit\n Judges, and Haywood S. Gilliam, Jr.,* District Judge.\n\n Opinion by Judge Ikuta\n\n\n \n The Honorable Haywood S. Gilliam, Jr., United States District\nJudge for the Northern District of California, sitting by designation.\n\f2 CURTIS V. IRWIN INDUSTRIES\n\n SUMMARY\n\n\n Labor Law\n\n The panel affirmed in part the district court’s dismissal of\na wage-and-hour suit and remanded in part.\n\n Plaintiffs worked for a company that conducted\noperations on oil platforms located off the coast of California,\non the Outer Continental Shelf. The panel held that\nplaintiffs’ claim for overtime pay was preempted under § 301\nof the Labor Management Relations Act because California\novertime law does not apply to an employee working under\na qualifying collective bargaining agreement; therefore,\nplaintiffs’ right to overtime existed solely as a result of their\nCBAs.\n\n The panel remanded to the district court to review meal\nand rest period and minimum wage claims, as well as\nderivative claims, and address issues of preemption under\n§ 301 and the Outer Continental Shelf Lands Act, as well as\nissues of California labor law.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f CURTIS V. IRWIN INDUSTRIES 3\n\n COUNSEL\n\nMichael A. Strauss (argued) and Aris E. Karakalos, Strauss\n& Strauss APC, Ventura, California, for Plaintiffs-Appellants.\n\nRonald J. Holland (argued), Ellen M. Bronchetti, and\nChristopher M. Foster, DLA Piper LLP, San Francisco,\nCalifornia, for Defendant-Appellee.\n\n\n OPINION\n\nIKUTA, Circuit Judge:\n\n Carl Curtis brought a putative class action lawsuit against\nhis former employer, Irwin Industries (Irwin), alleging that\nIrwin denied him overtime pay, failed to give him meal and\nrest periods, and failed to pay him minimum wage for the\n12 hours he was off duty.1 Curtis’s claim for overtime pay is\npreempted under § 301 of the Labor Management Relations\nAct (LMRA), 29 U.S.C. § 185, because California overtime\nlaw does not apply to an employee working under a\nqualifying collective bargaining agreement, Cal. Lab. Code\n§ 514, and Curtis worked under such an agreement. We\nremand Curtis’s remaining claims to the district court to\naddress in the first instance.\n\n\n\n\n 1\n Arthur Williams is also a named plaintiff. However, because he\nraises the same arguments as Curtis, and the specific facts of his work for\nIrwin are not relevant to our disposition of the case, we refer only to Curtis\nin this appeal.\n\f4 CURTIS V. IRWIN INDUSTRIES\n\n I\n\n Curtis is a former employee of Irwin, a company that\nconducts operations on oil platforms located off the coast of\nCalifornia, on the Outer Continental Shelf.2 While working\nfor Irwin, Curtis was regularly scheduled to work seven 12-\nhour shifts in a seven-day period, with twelve hours on duty,\nfollowed by twelve hours off duty.\n\n As a member of United Steel, Paper and Forestry, Rubber,\nManufacturing, Energy, Allied Industrial and Service\nWorkers International Union, Local 1945 (Union), Curtis was\nsubject to two collective bargaining agreements (CBAs)\nbetween the Union and Irwin: the National Master\nAgreement by and between Irwin’s Operations Group and the\nUnion, and the National Master Agreement by and between\nIrwin’s Maintenance and Construction Group and the Union.\nBoth agreements include detailed provisions regarding wages,\novertime, and hours, as well as provisions requiring\nemployees to grieve and arbitrate disputes concerning the\napplication and terms of the CBAs.\n\n Without using the dispute-resolution provisions of the\nCBAs, Curtis filed a putative class action complaint against\nIrwin in California state court. The complaint was based on\nCurtis’s theory that his 12 off-duty hours counted as “hours\nworked” for purposes of California labor laws, see Cal. Lab.\nCode § 510, because, as a practical matter, he was unable to\nleave the oil platform during that time. Curtis relied on a\nrecent California Supreme Court case holding that security\nguards were “entitled to compensation for all on-call hours\n\n 2\n Curtis worked for Irwin from approximately December 2013 to\nApril 2014.\n\f CURTIS V. IRWIN INDUSTRIES 5\n\nspent at their assigned worksites under their employer’s\ncontrol.” Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833,\n836 (2015). Extending Mendiola’s reasoning from on-call\nhours to off-duty hours, Curtis argues that Irwin violated\nvarious California wage and hour laws by failing to recognize\nhis 12 hours of off-duty time as “hours worked.”\nSpecifically, the complaint alleges that Irwin denied him\novertime pay for the 12 hours he was off duty, see Cal. Lab.\nCode § 510, failed to give him meal and rest periods for that\nperiod, see Cal. Lab. Code §§ 226.7, 512, and failed to pay\nhim minimum wage for that period, see Cal. Lab. Code\n§§ 1194, 1197. The complaint also raised four claims that are\nderivative of his overtime, meal and rest period, and\nminimum wage claims.3\n\n Irwin removed the action to district court, relying on\n§ 301 of the LMRA, 29 U.S.C. § 185, and the Outer\nContinental Shelf Lands Act (OCSLA), 43 U.S.C.\n§ 1331–1356b, as the basis for federal jurisdiction. Once in\nfederal court, Irwin filed a motion to dismiss on the ground\nthat Curtis’s claims are preempted by § 301 of the LMRA. In\nhis opposition, Curtis raised a number of arguments,\nincluding his contentions that the CBAs did not apply at all\nbecause their scope does not extend to work conducted on the\nOuter Continental Shelf; California’s minimum wage and\nhour standards are not preempted by § 301 of the LMRA\n\n 3\n These derivative claims are: (1) failure to provide an accurate pay\nstub, Cal. Lab. Code § 226(e); (2) engaging in unfair business practices,\nCal. Bus. & Prof. Code § 17200; (3) failure to pay the correct wages at\ntermination, Cal. Lab. Code § 201; and (4) a demand for civil penalties\nunder California’s Private Attorneys General Act, Cal. Lab. Code § 2699.\nThese claims can succeed only if Curtis prevails on his claims that Irwin\nviolated California labor law by failing to recognize his 12 off-duty hours\nas “hours worked,” see Cal Lab. Code § 510.\n\f6 CURTIS V. IRWIN INDUSTRIES\n\nunder binding state and federal precedents; Curtis’s overtime\nand meal break claims were not precluded by section 514 of\nthe California Labor Code; and California law applied to the\nOuter Continental Shelf.\n\n The district court granted Irwin’s motion to dismiss. The\ncourt based this conclusion solely on the ground that there\nwas a need to interpret the CBAs in order to resolve the\nparties’ dispute regarding their applicability, and therefore the\nstate law claims were preempted by § 301 of the LMRA.\nAdditionally, the district court ordered the parties to proceed\nto arbitration under the terms of the applicable CBAs.\n\n Curtis filed a motion for reconsideration, arguing that his\nclaims were founded on non-negotiable state-law rights that\nare independent of the CBAs. In his reply to Irwin’s\nopposition, Curtis stated, for the first time: “Plaintiffs are\nwilling to concede that the CBAs are generally applicable to\nPlaintiffs because such a concession has zero effect on their\nultimate rights to pursue their statutorily-guaranteed rights in\ncourt—a right that exists independently of these CBAs.”\n\n Given the timing and minimal nature of this concession,\nit is not surprising that the district court missed it.\nAccordingly, the district court affirmed its dismissal of\nCurtis’s claims as preempted under § 301 on the ground that\nCurtis disputed the applicability of the CBAs, and it would be\nnecessary to give the CBAs “more than merely a cursory\nreading to determine whether they actually apply to [Curtis’s]\nclaims.” The court did not address any other basis for\npreemption. However, the district court retracted the order to\narbitrate.\n\f CURTIS V. IRWIN INDUSTRIES 7\n\n Curtis timely appealed. The district court had jurisdiction\nunder 29 U.S.C. § 185(c),4 and we have jurisdiction under\n28 U.S.C. § 1291. We review de novo a district court’s\ndismissal under Rule 12(b)(6) of the Federal Rules of Civil\nProcedure. Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir.\n2017). We accept “all factual allegations in the complaint as\ntrue and construe the pleadings in the light most favorable to\nthe nonmoving party.” Rowe v. Educ. Credit Mgmt. Corp.,\n559 F.3d 1028, 1029–30 (9th Cir. 2009) (internal quotations\nmarks and citation omitted).\n\n II\n\n The central dispute on appeal is whether Curtis’s claims,\nwhich he styles as state law claims, are preempted by § 301\nof the LMRA. Section 301 provides that “[s]uits for violation\nof contracts between an employer and a labor organization\n. . . may be brought in any district court of the United\nStates.” 29 U.S.C. § 185(a). Although § 301 contains no\nexpress language of preemption, the Supreme Court has long\ninterpreted the LMRA as authorizing federal courts to create\na uniform body of federal common law to adjudicate disputes\nthat arise out of labor contracts. See Allis-Chalmers Corp. v.\nLueck, 471 U.S. 202, 210 (1985); Teamsters v. Lucas Flour\nCo., 369 U.S. 95, 103–04 (1962). Thus, any suit “alleging a\nviolation of a provision of a labor contract must be brought\nunder § 301 and be resolved by reference to federal law.”\nLueck, 471 U.S. at 210. “A state rule that purports to define\nthe meaning or scope of a term in a contract suit therefore is\n\n\n 4\n Irwin asserts that the district court had jurisdiction pursuant to\nOCSLA as well. Because we hold that jurisdiction over the overtime\nclaim was proper under § 301 of the LMRA, we do not address whether\ncomplete preemption exists under OCSLA.\n\f8 CURTIS V. IRWIN INDUSTRIES\n\npre-empted by federal labor law.” Id. Although normally\nfederal preemption is a defense that does not authorize\nremoval to federal court, § 301 has such “extraordinary pre-\nemptive power” that it “converts an ordinary state common\nlaw complaint into one stating a federal claim for purposes of\nthe well-pleaded complaint rule.” Metro. Life Ins. v. Taylor,\n481 U.S. 58, 65 (1987). In other words, a civil complaint\nraising claims preempted by § 301 raises a federal question\nthat can be removed to a federal court. See id.\n\n As explained in Alaska Airlines Inc. v. Schurke, federal\npreemption under § 301 “is an essential component of federal\nlabor policy” for three reasons. 898 F.3d 904, 917–18 (9th\nCir. 2018) (en banc). First, “a collective bargaining\nagreement is more than just a contract; it is an effort to erect\na system of industrial self-government.” Id. at 918 (internal\nquotation marks and citations omitted). Thus, a CBA is part\nof the “continuous collective bargaining process.” United\nSteelworkers v. Enter. Wheel & Car Corp. (Steelworkers III),\n363 U.S. 593, 596 (1960). Second, because the CBA is\ndesigned to govern the entire employment relationship,\nincluding disputes which the drafters may not have\nanticipated, it “calls into being a new common law—the\ncommon law of a particular industry or of a particular plant.”\nUnited Steelworkers v. Warrior & Gulf Navigation Co.\n(Steelworkers II), 363 U.S. 574, 579 (1960). Accordingly,\nthe labor arbitrator is usually the appropriate adjudicator for\nCBA disputes because he was chosen due to the “parties’\nconfidence in his knowledge of the common law of the shop\nand their trust in his personal judgment to bring to bear\nconsiderations which are not expressed in the contract as\ncriteria for judgment.” Id. at 582. Third, grievance and\narbitration procedures “provide certain procedural benefits,\nincluding a more prompt and orderly settlement of CBA\n\f CURTIS V. IRWIN INDUSTRIES 9\n\ndisputes than that offered by the ordinary judicial process.”\nSchurke, 898 F.3d at 918 (internal quotation marks and\ncitations omitted).\n\n While § 301 preemption furthers important interests, the\nSupreme Court has stressed that “§ 301 cannot be read\nbroadly to pre-empt nonnegotiable rights conferred on\nindividual employees as a matter of state law.” Livadas v.\nBradshaw, 512 U.S. 107, 123 (1994). To extend § 301\npreemption beyond its defined role “would be inconsistent\nwith congressional intent.” Lueck, 471 U.S. at 212. For this\nreason, “[s]etting minimum wages, regulating work hours and\npay periods, requiring paid and unpaid leave, protecting\nworker safety, prohibiting discrimination in employment, and\nestablishing other worker rights remains well within the\ntraditional police power of the states,” and claims alleging\nviolations of such protections will not necessarily be\npreempted, even when the plaintiff is covered by a CBA.\nSchurke, 898 F.3d at 919–20.\n\n To ensure that § 301 preemption “extends only as far as\nnecessary to protect the role of labor arbitration in resolving\nCBA disputes,” we employ a two-step test. Id. at 913–14.\nFirst, we ask whether the asserted cause of action involves a\n“right [that] exists solely as a result of the CBA.” Kobold v.\nGood Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1032 (9th\nCir. 2016) (quoting Burnside v. Kiewit Pac. Corp., 491 F.3d\n1053, 1059 (9th Cir. 2007)). The essential inquiry is this:\nDoes the claim seek “purely to vindicate a right or duty\ncreated by the CBA itself[?]” Schurke, 898 F.3d at 921. If\nso, “then the claim is preempted, and [the] analysis ends\nthere.” Burnside, 491 F.3d at 1059.\n\f10 CURTIS V. IRWIN INDUSTRIES\n\n But if not, we proceed to the second step and ask\n“whether a plaintiff’s state law right is substantially\ndependent on analysis of [the CBA],” which turns on whether\nthe claim cannot be resolved by simply “look[ing] to” versus\n“interpreting” the CBA. Kobald, 832 F.3d at 1033 (internal\nquotation marks and citations omitted). We have stressed\nthat “interpretation” is construed narrowly in this context.\nSee Schurke, 898 F.3d at 921. At this second step of the\nanalysis, “claims are only preempted to the extent there is an\nactive dispute over ‘the meaning of contract terms.’” Id.\n(quoting Livadas, 512 U.S. at 124). Accordingly, a state law\nclaim may avoid preemption if it does not raise questions\nabout the scope, meaning, or application of the CBA. See\nLivadas, 512 U.S. at 125.\n\n III\n\n We first apply this framework to Curtis’s claims that\nIrwin violated California labor law by failing to recognize his\n12 off-duty hours as “hours worked,” see Cal Lab. Code\n§ 510(a), in order to determine whether these claims are\npreempted by § 301 of the LMRA.\n\n We begin with Curtis’s claim that Irwin violated section\n510(a) of the California Labor Code, which provides a default\nrule for overtime.5 This section provides that any work in\n\n 5\n California Labor Code section 510(a) states, in pertinent part:\n\n (a) Eight hours of labor constitutes a day’s work. Any\n work in excess of eight hours in one workday and any\n work in excess of 40 hours in any one workweek and\n the first eight hours worked on the seventh day of work\n in any one workweek shall be compensated at the rate\n of no less than one and one-half times the regular rate\n\f CURTIS V. IRWIN INDUSTRIES 11\n\nexcess of a specified number of hours “shall be compensated”\nat a specified rate of pay. Cal. Lab. Code § 510(a). Curtis\nargues that Irwin violated this section by failing to pay him\nthe required overtime rates for the 12 hours he spent off-duty.\nFurther, Curtis argues that this section gives him a non-\nnegotiable state right to such overtime pay for his 12 off-duty\nhours, independent of any interpretation of the CBA.\n\n Curtis’s argument fails, however, in light of section\n510(a)(2), which provides that the “requirements of this\nsection do not apply to the payment of overtime\ncompensation to an employee working pursuant to . . . [a]n\nalternative workweek schedule adopted pursuant to a\ncollective bargaining agreement pursuant to Section 514.”\nSection 514 in turn states that “Sections 510 and 511 do not\napply to an employee covered by a valid collective bargaining\nagreement if the agreement expressly provides for the wages,\nhours of work, and working conditions of the employees, and\nif the agreement provides premium wage rates for all\n\n\n of pay for an employee. Any work in excess of\n 12 hours in one day shall be compensated at the rate of\n no less than twice the regular rate of pay for an\n employee. In addition, any work in excess of eight\n hours on any seventh day of a workweek shall be\n compensated at the rate of no less than twice the regular\n rate of pay of an employee. Nothing in this section\n requires an employer to combine more than one rate of\n overtime compensation in order to calculate the amount\n to be paid to an employee for any hour of overtime\n work. The requirements of this section do not apply to\n the payment of overtime compensation to an employee\n working pursuant to any of the following: . . . (2) An\n alternative workweek schedule adopted pursuant to a\n collective bargaining agreement pursuant to Section\n 514.\n\f12 CURTIS V. IRWIN INDUSTRIES\n\novertime hours worked and a regular hourly rate of pay for\nthose employees of not less than 30 percent more than the\nstate minimum wage.” Cal. Lab. Code § 514. By its terms,\ntherefore, the default definition of overtime and overtime\nrates in section 510 does not apply to an employee who is\nsubject to a qualifying CBA. If Curtis’s CBAs in this case\nmeet the requirements of section 514, Curtis’s right to\novertime “exists solely as a result of the CBA,” and therefore\nis preempted under § 301. Kobold, 832 F.3d at 1032.\n\n Curtis does not dispute that both CBAs expressly provide\nfor “the wages, hours of work, and working conditions of the\nemployees, and . . . premium wage rates for all overtime\nhours worked and a regular hourly rate of pay for those\nemployees of not less than 30 percent more than the state\nminimum wage,” as required by section 514. See Cal. Lab.\nCode § 514. Rather, he argues that the CBAs do not meet the\nrequirements of section 514 because the CBAs’s definition of\novertime (and overtime rates) is not the same as section 510’s\ndefinition of overtime (and overtime rates). Put differently,\nCurtis argues that to qualify for the exemption from section\n510’s definition of overtime, a CBA must provide employees\nwith overtime that is equivalent to section 510’s definition of\novertime.\n\n This interpretation of section 510 fails as a matter of\nstatutory interpretation, and as construed by state courts.\nObviously, if every employer had to meet all the requirements\nof section 510(a), it would render the collective bargaining\nexception in sections 510(a)(2) and 514 superfluous. The\nCalifornia Supreme Court has long made clear that\n“interpretations which render any part of a statute superfluous\nare to be avoided.” Wells v. One2One Learning Found.,\n39 Cal. 4th 1164, 1207 (2006), as modified (Oct. 25, 2006).\n\f CURTIS V. IRWIN INDUSTRIES 13\n\n Moreover, California courts have rejected this\ninterpretation of section 510. See Vranish v. Exxon Mobil\nCorp., 223 Cal. App. 4th 103, 107 (2014). In Vranish, union-\nrepresented workers claimed that their employer violated\nsection 510 by failing to pay premium wages for all\n“overtime hours worked.” Id. at 106. While it was\n“undisputed that plaintiffs were compensated for all overtime\nworked in accordance with the CBA,” the CBA’s definition\nof “overtime” was less generous than section 510’s definition.\nId. Specifically, the CBA provided “that overtime is not paid\nfor hours worked between eight and 12 in a workday,” while\nsection 510 required that overtime wages be paid for any\nwork in excess of eight hours in one workday. Id. at 107,\n109. The parties disputed whether the employer was\n“required to pay plaintiffs ‘overtime,’ as that word is defined\nin section 510, subdivision (a), or was it only required to pay\na premium for overtime worked as that word is defined in the\nCBA.” Id. at 109. The court concluded that “pursuant to the\nplain statutory language, . . . legislative history and opinions\nand comments from the [California Division of Labor\nStandards Enforcement]” an employer is required to pay only\nfor overtime as defined by a qualifying CBA. Id. at 113.\nThus, if a CBA satisfies the requirements of section 514, the\nrequirements of section 510(a) “do not apply.” Cal. Lab.\nCode §§ 510(a), 514.\n\n Further, Vranish noted that this “interpretation makes\nsense.” 223 Cal. App. 4th at 111. While section 510\nestablishes a default definition of overtime applicable to non-\nunionized employees, unionized employees “have sought and\nreceived alternative wage protections through the collective\nbargaining process.” Id. (quoting Firestone v. S. Cal. Gas\nCo., 219 F.3d 1063, 1067 (9th Cir. 2000)). Thus, the\nCalifornia legislature deemed it appropriate to allow\n\f14 CURTIS V. IRWIN INDUSTRIES\n\nunionized employees to contract around section 510(a)’s\nrequirements by “bargain[ing] over not only the rate of\novertime pay, but also when overtime pay will begin.” Id.\n(internal quotation marks and citation omitted). Accordingly,\nwhen such a bargain has been struck, courts look to the CBA\nto determine the definition of “overtime.” See Flowers v.\nL.A. Cty. Metro. Transp. Auth., 243 Cal. App. 4th 66, 85\n(2015) (holding that the exemption for collective bargaining\nagreements in section 514 allows parties to “contractually\nagree, through the collective bargaining process, to exclude\nthe specified tasks from the definition of ‘overtime hours\nworked’”).\n\n Curtis argues that we should adhere to our analysis in\nGregory v. SCIE, LLC, 317 F.3d 1050, 1053 (9th Cir. 2003),\nwhich was issued before Vranish was decided. Gregory\nassumed that the collective bargaining agreement at issue met\nthe requirements of section 514 and provided “premium wage\nrates” for overtime hours worked, as “overtime hours” were\ndefined in the CBA. Id. But without the benefit of any\nCalifornia cases, Gregory held that section 510, rather than a\nCBA, defined which hours constituted “overtime hours.” Id.\nat 1053 n.4. Under this interpretation, we held it was\nnecessary to interpret state law in order to resolve the parties’\ndispute, and therefore the employee’s claim was not\npreempted. Id. at 1054.\n\n Curtis’s argument fails, however, because we are bound\nto follow the rulings of intermediate state courts “absent\nconvincing evidence that the California Supreme Court would\nreject th[ose] interpretation[s].” In re Watts, 298 F.3d 1077,\n1082–83 (9th Cir. 2002) (collecting cases); see also Muniz v.\nUnited Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013).\nBecause Vranish and Flowers provided a reasonable statutory\n\f CURTIS V. IRWIN INDUSTRIES 15\n\ninterpretation that avoided rendering sections 510(a)(2) and\n514 superfluous, and was consistent with legislative history,\nsee Vranish, 223 Cal. App. 4th at 109–10, we see no reason\nthat the California Supreme Court would reject it.\nAccordingly, we conclude that Gregory was overruled by\nintervening California case law.\n\n Under the reasoning of Vranish and Flowers, Curtis’s\nCBAs in this case meet the requirements of section 514, and\ntherefore Curtis’s claim for overtime pay is controlled by his\nCBAs. Because Curtis’s right to overtime “exists solely as a\nresult of the CBA,” Kobold, 832 F.3d at 1032, his claim that\nIrwin violated overtime requirements by not paying him for\nthe 12 off-duty hours is preempted under § 301. Thus, his\nclaim fails at step one of the preemption analysis.6\n\n IV\n\n We now turn to Curtis’s remaining claims. Curtis argues\nthat Irwin improperly denied him rest and meal periods\nduring the 12 hours he was off duty, in violation of sections\n226.7 and 512(a) of the California Labor Code. He also\nclaims that Irwin violated sections 1194 and 1197 of the\nCalifornia Labor Code, which establish a right to receive the\n“legal minimum wage” during this 12-hour off-duty period.\n\n Irwin, in turn, argues that Curtis’s rights to rest and meal\nperiods and to a minimum wage substantially depend on an\nanalysis of the CBAs, and therefore are preempted under\n\n\n 6\n Because we hold that Curtis’s state law overtime claim is preempted\nby § 301, we need not address whether Curtis “clearly and unmistakably”\nconsented to the arbitration of his state law claims pursuant to 14 Penn\nPlaza LLC v. Pyett, 556 U.S. 247, 251 (2009).\n\f16 CURTIS V. IRWIN INDUSTRIES\n\n§ 301. According to Irwin, California’s Industrial Welfare\nCommission has issued an order that exempts an employer\nfrom providing the statutory meal and rest breaks where a\nqualifying CBA is in place. See Wage Order 16-2001, Cal.\nCode Regs. tit. 8, § 11160(11). Further, Irwin argues that\nresolving Curtis’s minimum wage claims requires an analysis\nof the CBAs to determine the degree of Irwin’s control over\nCurtis’s off-duty activities, which Mendiola deemed to be the\ncentral inquiry for overtime claims.\n\n In addition to these preemption issues, there remains a\ndispute as to whether Curtis’s meal and rest period, final pay,\nand pay stub claims are preempted by OCSLA. Under\nOCSLA, federal law generally governs claims relating to the\nOuter Continental Shelf, but the civil and criminal laws of\neach adjacent state are deemed to be applicable federal law to\nthe extent they are “applicable and not inconsistent” with\nfederal law. 43 U.S.C. § 1333(a)(2)(A). In Newton v. Parker\nDrilling Management Services, Ltd., we held that claims\nbrought pursuant to California’s minimum wage and overtime\nlaws are applicable and not inconsistent with the Fair Labor\nStandards Act, and therefore applied on the Outer Continental\nShelf. 881 F.3d 1078, 1084 (9th Cir. 2018), cert granted, ___\nS. Ct. ___, 2019 WL 166875 (U.S. Jan. 11, 2019). But\nNewton did not resolve whether California’s meal period,\nfinal pay, and pay stub laws are “applicable” and “not\ninconsistent with existing federal law,” instead remanding\nthose claims to the district court. Id. at 1099. Nor did\nNewton address whether the LMRA (or the National Labor\nRelations Act) is consistent with California labor law.\n\n The district court did not consider any of these issues,\nfocusing instead on Curtis’s argument that the CBAs did not\napply to his activities on the Outer Continental Shelf.\n\f CURTIS V. IRWIN INDUSTRIES 17\n\nAlthough Curtis conceded the applicability of the CBAs in\nhis motion to reconsider reply brief, the district court did not\nconsider Curtis’s claims in light of this concession.7\nMoreover, these claims raise complex issues of state law that\nhave not been fully briefed by the parties.8 Because the\ndistrict court is better able to decide these questions in the\nfirst instance, see Ariz. Libertarian Party, Inc. v. Bayless,\n351 F.3d 1277, 1283 (9th Cir. 2003), we remand to the\ndistrict court to review Curtis’s meal and rest period and\nminimum wage claims, as well as the four derivative claims.9\n\n AFFIRMED IN PART AND REMANDED IN PART.\n\n\n\n 7\n Because Curtis first conceded that the CBAs apply to him in his\nmotion for reconsideration reply brief, Irwin argues that Curtis is\nprecluded from arguing that his claims are not preempted by § 301 even\nthough the CBAs apply. But Curtis vigorously argued that his claims\nwere not preempted by § 301 before the district court. Because “it is\nclaims that are deemed waived or forfeited, not arguments,” we reject\nIrwin’s contentions that Curtis waived this argument. United States v.\nPallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).\n 8\n The parties have not addressed, for example, whether Curtis’s claim\nthat Irwin denied him meal periods in violation of California Labor Code\nsection 512(a) requires an analysis of whether Curtis is “an employee\nspecified in” section 512(f), in which case Curtis may be subject to the\nCBA exemption in section 512(e). Nor did the parties discuss whether the\nCBA exemption applies to Curtis due to Wage Order 16-2001, Cal. Code\nRegs. tit. 8, § 11160(11), and whether the Wage Order could be\n“harmonize[d]” with section 512. See Brinker Rest. Corp. v. Superior\nCourt, 53 Cal. 4th 1004, 1027 (2012). In addition, as explained above,\nCurtis argues that Mendiola, 60 Cal. 4th 833, provides the legal basis for\nhis minimum wage claim, but the parties failed to fully address whether\napplying Mendiola here requires an analysis of the CBA.\n 9\n The parties shall bear their own costs on appeal.\n[END_CASE]", "role": "user" } ]
4,585,193		Serah Karingithi v. Matthew Whitaker	2019-01-28	16-70885	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: M. Margaret McKeown, William A. Fletcher, and Jay S. Bybee, Circuit Judges.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSERAH NJOKI KARINGITHI, No. 16-70885\n Petitioner,\n Agency No.\n v. A087-020-992\n\nMATTHEW G. WHITAKER, Acting\nAttorney General, OPINION\n Respondent.\n\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted October 11, 2018\n San Francisco, California\n\n Filed January 28, 2019\n\n Before: M. Margaret McKeown, William A. Fletcher,\n and Jay S. Bybee, Circuit Judges.\n\n Opinion by Judge McKeown\n\f2 KARINGITHI V. WHITAKER\n\n SUMMARY \n\n\n Immigration\n\n The panel denied Serah Karingithi’s petition for review\nof the Board of Immigration Appeals’ denial of relief from\nremoval, holding that a notice to appear that does not specify\nthe time and date of an alien’s initial removal hearing vests\nan immigration judge with jurisdiction over the removal\nproceedings, so long as a notice of hearing specifying this\ninformation is later sent to the alien in a timely manner.\n\n The Supreme Court recently held in Pereira v. Sessions,\n138 S. Ct. 2105 (2018), that a notice to appear lacking the\ntime and date of the hearing before an immigration judge is\ninsufficient to trigger the stop-time rule for purposes of\ncancellation of removal relief. In light of Pereira, Karingithi\nargued that a notice to appear lacking the time and date of\nthe hearing was insufficient to vest jurisdiction with the\nimmigration court.\n\n The panel rejected this argument. The panel noted that\nPereira addressed the required contents of a notice to appear\nin the context of the stop-time rule and the continuous\nphysical presence requirement for cancellation of removal\nunder 8 U.S.C. §§ 1229(a), 1229b, but was not in any way\nconcerned with the immigration court’s jurisdiction. The\npanel held that Pereira’s narrow ruling does not control the\nanalysis of the immigration court’s jurisdiction because,\nunlike the stop-time rule, the immigration court’s\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f KARINGITHI V. WHITAKER 3\n\njurisdiction does not hinge on § 1229(a). The panel\nexplained that the issue of immigration court jurisdiction is\ninstead governed by federal immigration regulations,\nincluding 8 C.F.R. §§ 1003.13, 1003.14(a), 1003.15(b),\nwhich do not require that the charging document include the\ntime and date of the hearing.\n\n The panel noted that its reading of the regulations was\nconsistent with the Board’s recent decision in Matter of\nBermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), which held\nthat “a notice to appear that does not specify the time and\nplace of an alien’s initial removal hearing vests an\nImmigration Judge with jurisdiction over the removal\nproceedings . . . so long as a notice of hearing specifying this\ninformation is later sent to the alien.” The panel also\nconcluded that the Board’s decision in Bermudez-Cota\nwarranted deference.\n\n Because the charging document in this case satisfied the\nregulatory requirements, and Karingithi received subsequent\ntimely notices including the time and date of her hearing, the\npanel held that the immigration judge had jurisdiction over\nthe removal proceedings.\n\n The panel declined to consider Karingithi’s argument, in\nthe alternative, that Pereira renders her eligible for\ncancellation of removal, because cancellation relief was a\nnew claim that was not part of the present petition for review.\n\n The panel addressed the merits of Karingithi’s petition\nfor review of the denial of asylum and related relief in a\ncontemporaneously filed memorandum disposition.\n\f4 KARINGITHI V. WHITAKER\n\n COUNSEL\n\nRudy Lieberman (argued), Law Office of Rudy Lieberman,\nSan Francisco, California, for Petitioner.\n\nGreg D. Mack (argued) and Leslie M. McKay, Senior\nLitigation Counsel; Terri J. Scadron, Assistant Director;\nJoseph H. Hunt, Assistant Attorney General; Office of\nImmigration Litigation, Civil Division, United States\nDepartment of Justice, Washington, D.C.; for Respondent.\n\nLonny Hoffman, Law Foundation Professor of Law,\nUniversity of Houston Law Center, Houston, Texas, as and\nfor Amicus Curiae.\n\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n We consider whether the Immigration Court has\njurisdiction over removal proceedings when the initial notice\nto appear does not specify the time and date of the\nproceedings, but later notices of hearing include that\ninformation. This question is governed by federal\nimmigration regulations, which provide that jurisdiction\nvests in the Immigration Court when a charging document,\nsuch as a notice to appear, is filed. 8 C.F.R. §§ 1003.13,\n1003.14(a). The regulations specify the information a notice\nto appear must contain; however, the time and date of\nremoval proceedings are not specified. 8 C.F.R.\n§ 1003.15(b). Because the charging document in this case\nsatisfied the regulatory requirements, we conclude the\nImmigration Judge (“IJ”) had jurisdiction over the removal\nproceedings. This reading is consistent with the recent\n\f KARINGITHI V. WHITAKER 5\n\ninterpretation of these regulations by the Board of\nImmigration Appeals (“BIA” or the “Board”), see Matter of\nBermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the\nonly other court of appeals to reach this issue, see\nHernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th\nCir. 2018). We also note that the petitioner, Serah Njoki\nKaringithi, had actual notice of the hearings through\nmultiple follow-up notices that provided the date and time of\neach hearing.\n\n The Supreme Court recently addressed the required\ncontents of a notice to appear in the context of cancellation\nof removal under 8 U.S.C. §§ 1229(a), 1229b. Pereira v.\nSessions, 138 S. Ct. 2105 (2018). Pereira was not in any\nway concerned with the Immigration Court’s jurisdiction.\nRather, the Court considered what information a notice to\nappear must contain to trigger the stop-time rule, which\ndetermines whether a noncitizen has been continuously\npresent in the United States long enough to be eligible for\ncancellation of removal. Id. at 2110; see also 8 U.S.C.\n§ 1229b. Unlike the stop-time rule, the Immigration Court’s\njurisdiction does not hinge on § 1229(a), so Pereira’s narrow\nruling does not control our analysis. We conclude that the IJ\nhad jurisdiction over Karingithi’s removal proceedings and\nthat the Board properly denied her petition. We address the\nmerits of Karingithi’s petition for review in a separate\nmemorandum disposition filed contemporaneously with this\nOpinion.\n\n BACKGROUND\n\n Karingithi, a native of Kenya, entered the United States\non July 7, 2006 on a tourist visa. She violated her visa’s\nterms by remaining in the United States past its six-month\nlimit. On April 3, 2009, the Department of Homeland\nSecurity commenced removal proceedings by filing a notice\n\f6 KARINGITHI V. WHITAKER\n\nto appear with the Immigration Court, charging Karingithi\nwith removability under 8 U.S.C. § 1227(a)(1)(B). The\nnotice to appear specified the location of the removal\nhearing. The date and time were “To Be Set.” The same\nday, Karingithi was issued a notice of hearing, which\nprovided the date and time of the hearing.\n\n Karingithi conceded removability, but filed with the\nImmigration Court an application for asylum, withholding of\nremoval, and protection under the Convention Against\nTorture. In the alternative, she requested voluntary\ndeparture. After multiple continuances spanning five years,\nas well as numerous hearing notices providing the date and\ntime of proceedings, the IJ rejected all four grounds for\nrelief, and ordered Karingithi removed. The BIA affirmed.\nKaringithi now challenges the IJ’s jurisdiction over her\nremoval proceedings and the BIA’s decision.\n\n ANALYSIS\n\n The Attorney General has promulgated regulations\ngoverning removal proceedings, including when jurisdiction\nvests with the IJ. The relevant regulation, entitled\n“Jurisdiction and commencement of proceedings,” dictates\nthat “[j]urisdiction vests, and proceedings before an\nImmigration Judge commence, when a charging document\nis filed with the Immigration Court.” 8 C.F.R. § 1003.14(a).\nA charging document is “the written instrument which\ninitiates a proceeding before an Immigration Judge,” and one\nof the enumerated examples is a notice to appear. 8 C.F.R.\n§ 1003.13.\n\n Because both the regulation and a statutory provision,\n8 U.S.C. § 1229(a), list requirements for the contents of a\nnotice to appear, we consider whether their requirements\ndiffer, and if so, which authority governs the Immigration\n\f KARINGITHI V. WHITAKER 7\n\nCourt’s jurisdiction. According to the regulation, a notice to\nappear must include specified information, such as “[t]he\nnature of the proceedings,” “[t]he acts or conduct alleged to\nbe in violation of law,” and “[n]otice that the alien may be\nrepresented, at no cost to the government, by counsel or\nother representative.” 8 C.F.R. § 1003.15(b). Importantly,\nthe regulation does not require that the time and date of\nproceedings appear in the initial notice. See id. Rather, the\nregulation compels inclusion of such information “where\npracticable.” 8 C.F.R. § 1003.18(b) (emphasis added).\nWhen “that information is not contained in the Notice to\nAppear,” the regulation requires the IJ to “schedul[e] the\ninitial removal hearing and provid[e] notice to the\ngovernment and the alien of the time, place, and date of\nhearing.” 1 Id.\n\n Section 1229(a) requires that “[i]n removal proceedings\n. . . written notice (in this section referred to as a ‘notice to\nappear’) [ ] be given” to the noncitizen. The statute goes on\nto specify what information the notice must contain, and it\nlargely mirrors the regulation’s requirements with one\nsignificant difference: it requires, without qualification,\ninclusion of “[t]he time and place at which the proceedings\nwill be held.” 8 U.S.C. § 1229(a)(1)(G)(i). Notably, the\nstatute is silent as to the jurisdiction of the Immigration\nCourt. See generally 8 U.S.C. § 1229.\n\n Karingithi argues that if a notice to appear does not state\nthe time for her initial removal hearing, it is not only\n\n 1\n Pereira appears to discount the relevance of 8 C.F.R. § 1003.18 in\nthe distinct context of eligibility for cancellation of removal. See\nPereira, 138 S. Ct. at 2111. However, as discussed below, Pereira’s\nnarrow holding does not govern the jurisdictional question that we\naddress.\n\f8 KARINGITHI V. WHITAKER\n\ndefective under § 1229(a), but also does not vest jurisdiction\nwith the IJ. The flaw in this logic is that the regulations, not\n§1229(a), define when jurisdiction vests. Section 1229 says\nnothing about the Immigration Court’s jurisdiction. And for\ntheir part, the regulations make no reference to § 1229(a)’s\ndefinition of a “notice to appear.” See generally 8 C.F.R.\n§§ 1003.13–1003.14. If the regulations did not clearly\nenumerate requirements for the contents of a notice to appear\nfor jurisdictional purposes, we might presume they sub\nsilentio incorporated § 1229(a)’s definition. Cf. Sorenson v.\nSec’y of Treasury, 475 U.S. 851, 860 (1986) (“The normal\nrule of statutory construction assumes that identical words\nused in different parts of the same act are intended to have\nthe same meaning.” (internal quotation marks omitted)). But\nthe plain, exhaustive list of requirements in the jurisdictional\nregulations renders that presumption inapplicable here. Not\nonly does that list not include the time of the hearing, reading\nsuch a requirement into the regulations would render\nmeaningless their command that such information need only\nbe included “where practicable.” 8 C.F.R. § 1003.18(b).\nThe regulatory definition, not the one set forth in § 1229(a),\ngoverns the Immigration Court’s jurisdiction. A notice to\nappear need not include time and date information to satisfy\nthis standard. Karingithi’s notice to appear met the\nregulatory requirements and therefore vested jurisdiction in\nthe IJ.\n\n Pereira does not point to a different conclusion. To\nbegin, Pereira dealt with an issue distinct from the\njurisdictional question confronting us in this case. At issue\nwas the Attorney General’s statutory authority to cancel\nremoval of “an alien who . . . has been physically present in\nthe United States for a continuous period of not less than\n10 years immediately preceding the date of” her application\nfor relief. 8 U.S.C. § 1229b(b)(1)(A). Under the statute’s\n\f KARINGITHI V. WHITAKER 9\n\n“stop-time rule,” the “period of . . . continuous physical\npresence” is “deemed to end . . . when the alien is served a\nnotice to appear under section 1229(a).” 8 U.S.C.\n§ 1229b(d)(1). In Pereira, the Court acknowledged that it\ndecided only a single, “narrow question”: “If the\nGovernment serves a noncitizen with a document that is\nlabeled ‘notice to appear,’ but the document fails to specify\neither the time or place of the removal proceedings, does it\ntrigger the stop-time rule?” Pereira, 138 S. Ct. at 2110. The\nCourt held it did not, emphasizing multiple times the\nnarrowness of its ruling. See, e.g., id. at 2110, 2113.\n\n Pereira’s analysis hinges on “the intersection” of two\nstatutory provisions: § 1229b(d)(1)’s stop-time rule and\n§ 1229(a)’s definition of a notice to appear. Id. at 2110. The\nstop-time rule is not triggered by any “notice to appear”—it\nrequires a “notice to appear under section 1229(a).”\n8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats\nthis statutory cross-reference as crucial: “the word ‘under’\nprovides the glue that bonds the stop-time rule to the\nsubstantive time-and-place requirements mandated by\n§ 1229(a).” Pereira, 138 S. Ct. at 2117. There is no “glue”\nto bind § 1229(a) and the jurisdictional regulations: the\nregulations do not reference § 1229(a), which itself makes\nno mention of the IJ’s jurisdiction. Pereira’s definition of a\n“notice to appear under section 1229(a)” does not govern the\nmeaning of “notice to appear” under an unrelated regulatory\nprovision.\n\n In short, Pereira simply has no application here. The\nCourt never references 8 C.F.R. §§ 1003.13, 1003.14, or\n1003.15, nor does the word “jurisdiction” appear in the\nmajority opinion. This silence is hardly surprising, because\nthe only question was whether the petitioner was eligible for\ncancellation of removal. Pereira, 138 S. Ct. at 2112–13.\n\f10 KARINGITHI V. WHITAKER\n\nThe Court’s resolution of that “narrow question” cannot be\nrecast into the broad jurisdictional rule Karingithi advocates.\n\n The BIA recently issued a precedential opinion in which\nit rejected an argument identical to the one advanced by\nKaringithi. Bermudez-Cota, 27 I. & N. Dec. at 442–44. The\nBIA’s interpretations of its regulations are due “substantial\ndeference,” and should be upheld “so long as the\ninterpretation sensibly conforms to the purpose and wording\nof the regulations.” Lezama-Garcia v. Holder, 666 F.3d\n518, 525 (9th Cir. 2011) (internal quotation marks omitted).\nWe therefore defer to the Board’s interpretations of\nambiguous regulations unless they are “plainly erroneous,”\n“inconsistent with the regulation,” or do “not reflect the\nagency’s fair and considered judgment.” Id. (internal\nquotation marks omitted). Bermudez-Cota easily meets this\nstandard and is consistent with our analysis.\n\n In Bermudez-Cota, the Board stated that “a notice to\nappear that does not specify the time and place of an alien’s\ninitial removal hearing vests an Immigration Judge with\njurisdiction over the removal proceedings . . . so long as a\nnotice of hearing specifying this information is later sent to\nthe alien.” Id. at 447. Regarding the regulations, the Board\nemphasized that 8 C.F.R. § 1003.14(a) does not “mandate\nthat the [charging] document specify the time and date of the\ninitial hearing before jurisdiction will vest” and that\n“8 C.F.R. § 1003.15(b) . . . does not mandate that the time\nand date of the initial hearing must be included in that\ndocument.” Id. at 445. The Board also noted that the\nregulations only require a notice to appear to include the\n“time, place and date of the initial removal hearing, where\npracticable.” Id. at 444 (quoting 8 C.F.R. § 1003.18(b))\n(emphasis in original).\n\f KARINGITHI V. WHITAKER 11\n\n The BIA also found Pereira’s analysis inapplicable to\nthe Immigration Court’s jurisdiction, noting that “the\nrespondent is not seeking cancellation of removal, and the\n‘stop-time’ rule is not at issue, so Pereira is distinguishable.”\nId. at 443. The BIA placed significant weight on the fact\nthat, in Pereira, “the Court did not purport to invalidate the\nalien’s underlying removal proceedings or suggest that\nproceedings should be terminated.” Id.\n\n Recognizing the weakness of her jurisdictional\nargument, Karingithi urges, in the alternative, that Pereira\nrenders her eligible for cancellation of removal. However,\ncancellation is a new claim that is not part of this petition for\nreview. Karingithi has raised her cancellation claim in a\nmotion to reconsider to the BIA, and she must await its\ndetermination. See Plaza-Ramirez v. Sessions, 908 F.3d\n282, 286 (7th Cir. 2018) (refusing to consider cancellation\nclaim pending before BIA that had not been raised in initial\nadministrative proceeding); see also Garcia v. Lynch,\n786 F.3d 789, 792–93 (9th Cir. 2015) (noting that we cannot\n“reach[ ] the merits of a legal claim not presented in\nadministrative proceedings below” (internal quotation marks\nomitted)).\n\n The bottom line is that the Immigration Court had\njurisdiction over Karingithi’s removal proceedings. And, as\nin Bermudez-Cota, the hearing notices Karingithi received\nspecified the time and date of her removal proceedings.\nThus, we do not decide whether jurisdiction would have\nvested if she had not received this information in a timely\nfashion.\n\n PETITION DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362446/", "author_raw": "McKEOWN, Circuit Judge:"}]}	M MARGARET MCKEOWN	WILLIAM A FLETCHER	JAY S BYBEE	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585193/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Serah Karingithi v. Matthew Whitaker\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSERAH NJOKI KARINGITHI, No. 16-70885\n Petitioner,\n Agency No.\n v. A087-020-992\n\nMATTHEW G. WHITAKER, Acting\nAttorney General, OPINION\n Respondent.\n\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted October 11, 2018\n San Francisco, California\n\n Filed January 28, 2019\n\n Before: M. Margaret McKeown, William A. Fletcher,\n and Jay S. Bybee, Circuit Judges.\n\n Opinion by Judge McKeown\n\f2 KARINGITHI V. WHITAKER\n\n SUMMARY \n\n\n Immigration\n\n The panel denied Serah Karingithi’s petition for review\nof the Board of Immigration Appeals’ denial of relief from\nremoval, holding that a notice to appear that does not specify\nthe time and date of an alien’s initial removal hearing vests\nan immigration judge with jurisdiction over the removal\nproceedings, so long as a notice of hearing specifying this\ninformation is later sent to the alien in a timely manner.\n\n The Supreme Court recently held in Pereira v. Sessions,\n138 S. Ct. 2105 (2018), that a notice to appear lacking the\ntime and date of the hearing before an immigration judge is\ninsufficient to trigger the stop-time rule for purposes of\ncancellation of removal relief. In light of Pereira, Karingithi\nargued that a notice to appear lacking the time and date of\nthe hearing was insufficient to vest jurisdiction with the\nimmigration court.\n\n The panel rejected this argument. The panel noted that\nPereira addressed the required contents of a notice to appear\nin the context of the stop-time rule and the continuous\nphysical presence requirement for cancellation of removal\nunder 8 U.S.C. §§ 1229(a), 1229b, but was not in any way\nconcerned with the immigration court’s jurisdiction. The\npanel held that Pereira’s narrow ruling does not control the\nanalysis of the immigration court’s jurisdiction because,\nunlike the stop-time rule, the immigration court’s\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f KARINGITHI V. WHITAKER 3\n\njurisdiction does not hinge on § 1229(a). The panel\nexplained that the issue of immigration court jurisdiction is\ninstead governed by federal immigration regulations,\nincluding 8 C.F.R. §§ 1003.13, 1003.14(a), 1003.15(b),\nwhich do not require that the charging document include the\ntime and date of the hearing.\n\n The panel noted that its reading of the regulations was\nconsistent with the Board’s recent decision in Matter of\nBermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), which held\nthat “a notice to appear that does not specify the time and\nplace of an alien’s initial removal hearing vests an\nImmigration Judge with jurisdiction over the removal\nproceedings . . . so long as a notice of hearing specifying this\ninformation is later sent to the alien.” The panel also\nconcluded that the Board’s decision in Bermudez-Cota\nwarranted deference.\n\n Because the charging document in this case satisfied the\nregulatory requirements, and Karingithi received subsequent\ntimely notices including the time and date of her hearing, the\npanel held that the immigration judge had jurisdiction over\nthe removal proceedings.\n\n The panel declined to consider Karingithi’s argument, in\nthe alternative, that Pereira renders her eligible for\ncancellation of removal, because cancellation relief was a\nnew claim that was not part of the present petition for review.\n\n The panel addressed the merits of Karingithi’s petition\nfor review of the denial of asylum and related relief in a\ncontemporaneously filed memorandum disposition.\n\f4 KARINGITHI V. WHITAKER\n\n COUNSEL\n\nRudy Lieberman (argued), Law Office of Rudy Lieberman,\nSan Francisco, California, for Petitioner.\n\nGreg D. Mack (argued) and Leslie M. McKay, Senior\nLitigation Counsel; Terri J. Scadron, Assistant Director;\nJoseph H. Hunt, Assistant Attorney General; Office of\nImmigration Litigation, Civil Division, United States\nDepartment of Justice, Washington, D.C.; for Respondent.\n\nLonny Hoffman, Law Foundation Professor of Law,\nUniversity of Houston Law Center, Houston, Texas, as and\nfor Amicus Curiae.\n\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n We consider whether the Immigration Court has\njurisdiction over removal proceedings when the initial notice\nto appear does not specify the time and date of the\nproceedings, but later notices of hearing include that\ninformation. This question is governed by federal\nimmigration regulations, which provide that jurisdiction\nvests in the Immigration Court when a charging document,\nsuch as a notice to appear, is filed. 8 C.F.R. §§ 1003.13,\n1003.14(a). The regulations specify the information a notice\nto appear must contain; however, the time and date of\nremoval proceedings are not specified. 8 C.F.R.\n§ 1003.15(b). Because the charging document in this case\nsatisfied the regulatory requirements, we conclude the\nImmigration Judge (“IJ”) had jurisdiction over the removal\nproceedings. This reading is consistent with the recent\n\f KARINGITHI V. WHITAKER 5\n\ninterpretation of these regulations by the Board of\nImmigration Appeals (“BIA” or the “Board”), see Matter of\nBermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the\nonly other court of appeals to reach this issue, see\nHernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th\nCir. 2018). We also note that the petitioner, Serah Njoki\nKaringithi, had actual notice of the hearings through\nmultiple follow-up notices that provided the date and time of\neach hearing.\n\n The Supreme Court recently addressed the required\ncontents of a notice to appear in the context of cancellation\nof removal under 8 U.S.C. §§ 1229(a), 1229b. Pereira v.\nSessions, 138 S. Ct. 2105 (2018). Pereira was not in any\nway concerned with the Immigration Court’s jurisdiction.\nRather, the Court considered what information a notice to\nappear must contain to trigger the stop-time rule, which\ndetermines whether a noncitizen has been continuously\npresent in the United States long enough to be eligible for\ncancellation of removal. Id. at 2110; see also 8 U.S.C.\n§ 1229b. Unlike the stop-time rule, the Immigration Court’s\njurisdiction does not hinge on § 1229(a), so Pereira’s narrow\nruling does not control our analysis. We conclude that the IJ\nhad jurisdiction over Karingithi’s removal proceedings and\nthat the Board properly denied her petition. We address the\nmerits of Karingithi’s petition for review in a separate\nmemorandum disposition filed contemporaneously with this\nOpinion.\n\n BACKGROUND\n\n Karingithi, a native of Kenya, entered the United States\non July 7, 2006 on a tourist visa. She violated her visa’s\nterms by remaining in the United States past its six-month\nlimit. On April 3, 2009, the Department of Homeland\nSecurity commenced removal proceedings by filing a notice\n\f6 KARINGITHI V. WHITAKER\n\nto appear with the Immigration Court, charging Karingithi\nwith removability under 8 U.S.C. § 1227(a)(1)(B). The\nnotice to appear specified the location of the removal\nhearing. The date and time were “To Be Set.” The same\nday, Karingithi was issued a notice of hearing, which\nprovided the date and time of the hearing.\n\n Karingithi conceded removability, but filed with the\nImmigration Court an application for asylum, withholding of\nremoval, and protection under the Convention Against\nTorture. In the alternative, she requested voluntary\ndeparture. After multiple continuances spanning five years,\nas well as numerous hearing notices providing the date and\ntime of proceedings, the IJ rejected all four grounds for\nrelief, and ordered Karingithi removed. The BIA affirmed.\nKaringithi now challenges the IJ’s jurisdiction over her\nremoval proceedings and the BIA’s decision.\n\n ANALYSIS\n\n The Attorney General has promulgated regulations\ngoverning removal proceedings, including when jurisdiction\nvests with the IJ. The relevant regulation, entitled\n“Jurisdiction and commencement of proceedings,” dictates\nthat “[j]urisdiction vests, and proceedings before an\nImmigration Judge commence, when a charging document\nis filed with the Immigration Court.” 8 C.F.R. § 1003.14(a).\nA charging document is “the written instrument which\ninitiates a proceeding before an Immigration Judge,” and one\nof the enumerated examples is a notice to appear. 8 C.F.R.\n§ 1003.13.\n\n Because both the regulation and a statutory provision,\n8 U.S.C. § 1229(a), list requirements for the contents of a\nnotice to appear, we consider whether their requirements\ndiffer, and if so, which authority governs the Immigration\n\f KARINGITHI V. WHITAKER 7\n\nCourt’s jurisdiction. According to the regulation, a notice to\nappear must include specified information, such as “[t]he\nnature of the proceedings,” “[t]he acts or conduct alleged to\nbe in violation of law,” and “[n]otice that the alien may be\nrepresented, at no cost to the government, by counsel or\nother representative.” 8 C.F.R. § 1003.15(b). Importantly,\nthe regulation does not require that the time and date of\nproceedings appear in the initial notice. See id. Rather, the\nregulation compels inclusion of such information “where\npracticable.” 8 C.F.R. § 1003.18(b) (emphasis added).\nWhen “that information is not contained in the Notice to\nAppear,” the regulation requires the IJ to “schedul[e] the\ninitial removal hearing and provid[e] notice to the\ngovernment and the alien of the time, place, and date of\nhearing.” 1 Id.\n\n Section 1229(a) requires that “[i]n removal proceedings\n. . . written notice (in this section referred to as a ‘notice to\nappear’) [ ] be given” to the noncitizen. The statute goes on\nto specify what information the notice must contain, and it\nlargely mirrors the regulation’s requirements with one\nsignificant difference: it requires, without qualification,\ninclusion of “[t]he time and place at which the proceedings\nwill be held.” 8 U.S.C. § 1229(a)(1)(G)(i). Notably, the\nstatute is silent as to the jurisdiction of the Immigration\nCourt. See generally 8 U.S.C. § 1229.\n\n Karingithi argues that if a notice to appear does not state\nthe time for her initial removal hearing, it is not only\n\n 1\n Pereira appears to discount the relevance of 8 C.F.R. § 1003.18 in\nthe distinct context of eligibility for cancellation of removal. See\nPereira, 138 S. Ct. at 2111. However, as discussed below, Pereira’s\nnarrow holding does not govern the jurisdictional question that we\naddress.\n\f8 KARINGITHI V. WHITAKER\n\ndefective under § 1229(a), but also does not vest jurisdiction\nwith the IJ. The flaw in this logic is that the regulations, not\n§1229(a), define when jurisdiction vests. Section 1229 says\nnothing about the Immigration Court’s jurisdiction. And for\ntheir part, the regulations make no reference to § 1229(a)’s\ndefinition of a “notice to appear.” See generally 8 C.F.R.\n§§ 1003.13–1003.14. If the regulations did not clearly\nenumerate requirements for the contents of a notice to appear\nfor jurisdictional purposes, we might presume they sub\nsilentio incorporated § 1229(a)’s definition. Cf. Sorenson v.\nSec’y of Treasury, 475 U.S. 851, 860 (1986) (“The normal\nrule of statutory construction assumes that identical words\nused in different parts of the same act are intended to have\nthe same meaning.” (internal quotation marks omitted)). But\nthe plain, exhaustive list of requirements in the jurisdictional\nregulations renders that presumption inapplicable here. Not\nonly does that list not include the time of the hearing, reading\nsuch a requirement into the regulations would render\nmeaningless their command that such information need only\nbe included “where practicable.” 8 C.F.R. § 1003.18(b).\nThe regulatory definition, not the one set forth in § 1229(a),\ngoverns the Immigration Court’s jurisdiction. A notice to\nappear need not include time and date information to satisfy\nthis standard. Karingithi’s notice to appear met the\nregulatory requirements and therefore vested jurisdiction in\nthe IJ.\n\n Pereira does not point to a different conclusion. To\nbegin, Pereira dealt with an issue distinct from the\njurisdictional question confronting us in this case. At issue\nwas the Attorney General’s statutory authority to cancel\nremoval of “an alien who . . . has been physically present in\nthe United States for a continuous period of not less than\n10 years immediately preceding the date of” her application\nfor relief. 8 U.S.C. § 1229b(b)(1)(A). Under the statute’s\n\f KARINGITHI V. WHITAKER 9\n\n“stop-time rule,” the “period of . . . continuous physical\npresence” is “deemed to end . . . when the alien is served a\nnotice to appear under section 1229(a).” 8 U.S.C.\n§ 1229b(d)(1). In Pereira, the Court acknowledged that it\ndecided only a single, “narrow question”: “If the\nGovernment serves a noncitizen with a document that is\nlabeled ‘notice to appear,’ but the document fails to specify\neither the time or place of the removal proceedings, does it\ntrigger the stop-time rule?” Pereira, 138 S. Ct. at 2110. The\nCourt held it did not, emphasizing multiple times the\nnarrowness of its ruling. See, e.g., id. at 2110, 2113.\n\n Pereira’s analysis hinges on “the intersection” of two\nstatutory provisions: § 1229b(d)(1)’s stop-time rule and\n§ 1229(a)’s definition of a notice to appear. Id. at 2110. The\nstop-time rule is not triggered by any “notice to appear”—it\nrequires a “notice to appear under section 1229(a).”\n8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats\nthis statutory cross-reference as crucial: “the word ‘under’\nprovides the glue that bonds the stop-time rule to the\nsubstantive time-and-place requirements mandated by\n§ 1229(a).” Pereira, 138 S. Ct. at 2117. There is no “glue”\nto bind § 1229(a) and the jurisdictional regulations: the\nregulations do not reference § 1229(a), which itself makes\nno mention of the IJ’s jurisdiction. Pereira’s definition of a\n“notice to appear under section 1229(a)” does not govern the\nmeaning of “notice to appear” under an unrelated regulatory\nprovision.\n\n In short, Pereira simply has no application here. The\nCourt never references 8 C.F.R. §§ 1003.13, 1003.14, or\n1003.15, nor does the word “jurisdiction” appear in the\nmajority opinion. This silence is hardly surprising, because\nthe only question was whether the petitioner was eligible for\ncancellation of removal. Pereira, 138 S. Ct. at 2112–13.\n\f10 KARINGITHI V. WHITAKER\n\nThe Court’s resolution of that “narrow question” cannot be\nrecast into the broad jurisdictional rule Karingithi advocates.\n\n The BIA recently issued a precedential opinion in which\nit rejected an argument identical to the one advanced by\nKaringithi. Bermudez-Cota, 27 I. & N. Dec. at 442–44. The\nBIA’s interpretations of its regulations are due “substantial\ndeference,” and should be upheld “so long as the\ninterpretation sensibly conforms to the purpose and wording\nof the regulations.” Lezama-Garcia v. Holder, 666 F.3d\n518, 525 (9th Cir. 2011) (internal quotation marks omitted).\nWe therefore defer to the Board’s interpretations of\nambiguous regulations unless they are “plainly erroneous,”\n“inconsistent with the regulation,” or do “not reflect the\nagency’s fair and considered judgment.” Id. (internal\nquotation marks omitted). Bermudez-Cota easily meets this\nstandard and is consistent with our analysis.\n\n In Bermudez-Cota, the Board stated that “a notice to\nappear that does not specify the time and place of an alien’s\ninitial removal hearing vests an Immigration Judge with\njurisdiction over the removal proceedings . . . so long as a\nnotice of hearing specifying this information is later sent to\nthe alien.” Id. at 447. Regarding the regulations, the Board\nemphasized that 8 C.F.R. § 1003.14(a) does not “mandate\nthat the [charging] document specify the time and date of the\ninitial hearing before jurisdiction will vest” and that\n“8 C.F.R. § 1003.15(b) . . . does not mandate that the time\nand date of the initial hearing must be included in that\ndocument.” Id. at 445. The Board also noted that the\nregulations only require a notice to appear to include the\n“time, place and date of the initial removal hearing, where\npracticable.” Id. at 444 (quoting 8 C.F.R. § 1003.18(b))\n(emphasis in original).\n\f KARINGITHI V. WHITAKER 11\n\n The BIA also found Pereira’s analysis inapplicable to\nthe Immigration Court’s jurisdiction, noting that “the\nrespondent is not seeking cancellation of removal, and the\n‘stop-time’ rule is not at issue, so Pereira is distinguishable.”\nId. at 443. The BIA placed significant weight on the fact\nthat, in Pereira, “the Court did not purport to invalidate the\nalien’s underlying removal proceedings or suggest that\nproceedings should be terminated.” Id.\n\n Recognizing the weakness of her jurisdictional\nargument, Karingithi urges, in the alternative, that Pereira\nrenders her eligible for cancellation of removal. However,\ncancellation is a new claim that is not part of this petition for\nreview. Karingithi has raised her cancellation claim in a\nmotion to reconsider to the BIA, and she must await its\ndetermination. See Plaza-Ramirez v. Sessions, 908 F.3d\n282, 286 (7th Cir. 2018) (refusing to consider cancellation\nclaim pending before BIA that had not been raised in initial\nadministrative proceeding); see also Garcia v. Lynch,\n786 F.3d 789, 792–93 (9th Cir. 2015) (noting that we cannot\n“reach[ ] the merits of a legal claim not presented in\nadministrative proceedings below” (internal quotation marks\nomitted)).\n\n The bottom line is that the Immigration Court had\njurisdiction over Karingithi’s removal proceedings. And, as\nin Bermudez-Cota, the hearing notices Karingithi received\nspecified the time and date of her removal proceedings.\nThus, we do not decide whether jurisdiction would have\nvested if she had not received this information in a timely\nfashion.\n\n PETITION DENIED.\n[END_CASE]", "role": "user" } ]
4,585,194		Michael Cuero v. Scott Kernan	2019-01-28	12-55911	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.", "parties": "", "opinions": [{"author": "rehearing, Judge Wardlaw wrote that she would have", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MICHAEL DANIEL CUERO, No. 12-55911\n Petitioner-Appellant,\n D.C. No.\n v. 3:08-cv-02008-\n BTM-WMC\n SCOTT KERNAN,\n Respondent-Appellee.\n ORDER\n\n Filed January 28, 2019\n\n Before: Diarmuid F. O’Scannlain, Barry G. Silverman,\n and Kim McLane Wardlaw, Circuit Judges.\n\n\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel denied a petition for panel rehearing in a case\nin which, on remand from the Supreme Court, the panel\naffirmed the judgment of the district court in light of Kernan\nv. Cuero, 138 S. Ct. 4 (2017).\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n2 CUERO V. KERNAN\n\n Dissenting from the denial of the petition for panel\nrehearing, Judge Wardlaw wrote that she would have\nreversed in part and remanded with instructions to remand to\nthe state court for any further consideration it deems\nnecessary to remediate the violation of Cuero’s due process\nrights.\n\n\n ORDER\n\n Both Judges O’Scannlain and Silverman voted to deny\nAppellant’s petition for panel rehearing. Judge Wardlaw\nvotes to grant the petition for panel rehearing. Accordingly,\nAppellant’s petition for panel rehearing is DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362447/", "author_raw": "rehearing, Judge Wardlaw wrote that she would have"}, {"author": "WARDLAW, Circuit Judge, dissenting", "type": "dissent", "text": "WARDLAW, Circuit Judge, dissenting:\n\n With respect, I would grant Cuero’s petition for panel\nrehearing. I agree with Cuero’s reading of the Supreme\nCourt’s opinion in Kernan v. Cuero, 138 S. Ct. 4 (2017),\nreh’g denied, 138 S. Ct. 724 (2018). On remand, I would\nhave entered an order that reversed in part and remanded\nwith instructions to remand to the state court for any further\nconsideration it deems necessary to remediate the violation\nof Cuero’s due process rights. On the assumption that the\nparties likely will once again find themselves in state court,\nI write to clarify what the Supreme Court did and didn’t hold\nin Kernan.\n\n 1. First, the Supreme Court left intact our panel holding\nthat the “State violated the Constitution when it moved to\namend the complaint.” Id. at 8. In Cuero v. Cate, 827 F.3d\n879 (9th Cir. 2016), we found that Cuero entered a binding,\njudicially approved plea agreement that contained a charge\n\n CUERO V. KERNAN 3\n\nbargain that resulted in an agreed maximum sentence of\n14 years and 4 months. We held that the State breached this\nagreement in violation of Cuero’s clearly established\nconstitutional due process rights by seeking to amend the\ncriminal complaint after the binding plea agreement was\nsigned and judicially approved, resulting in an indeterminate\n64 years to life sentence. The Supreme Court did not disturb\nthis holding and it remains the law of the case.\n\n 2. The Supreme Court reversed only our holding that\nspecific performance of the plea agreement, i.e. an\nimposition of a 14 year, 4 month sentence as originally\nbargained, was the required remedy. It did so because it was\n“unable to find in Supreme Court precedent that ‘clearly\nestablished federal law’ demanding specific performance as\na remedy.” Kernan, 138 S. Ct. at 8. As the Court wrote,\n“We decide no other issue in this case.” Id. at 9.\n\n 3. The Supreme Court rejected Cuero’s mootness\nargument based on his having been resentenced, stating\n“[r]eversal would simply ‘und[o] what the habeas corpus\ncourt did,’ namely, permit the state courts to determine in the\nfirst instance the lawfulness of a longer sentence not yet\nserved.” Id. at 7 (citation omitted). The Court then\n“remand[ed] the case for further proceedings consistent with\nthis opinion.” Id. at 9.\n\n Consistency with the Kernan Supreme Court decision\nrequires that any resentencing that may occur must take into\naccount the State’s breach of Cuero’s plea agreement in\nviolation of Cuero’s due process rights. The state court\nremains free to remedy this breach by requiring specific\nperformance of the original plea agreement. Kernan stands\nmerely for the proposition that the state court is not required\nto do so by clearly established Supreme Court law.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362447/", "author_raw": "WARDLAW, Circuit Judge, dissenting"}]}	DIARMUID F O'SCANNLAIN	BARRY G SILVERMAN	KIM MCLANE WARDLAW	1		{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585194/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michael Cuero v. Scott Kernan\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MICHAEL DANIEL CUERO, No. 12-55911\n Petitioner-Appellant,\n D.C. No.\n v. 3:08-cv-02008-\n BTM-WMC\n SCOTT KERNAN,\n Respondent-Appellee.\n ORDER\n\n Filed January 28, 2019\n\n Before: Diarmuid F. O’Scannlain, Barry G. Silverman,\n and Kim McLane Wardlaw, Circuit Judges.\n\n\n\n SUMMARY \n\n\n Habeas Corpus\n\n The panel denied a petition for panel rehearing in a case\nin which, on remand from the Supreme Court, the panel\naffirmed the judgment of the district court in light of Kernan\nv. Cuero, 138 S. Ct. 4 (2017).\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n2 CUERO V. KERNAN\n\n Dissenting from the denial of the petition for panel\nrehearing, Judge Wardlaw wrote that she would have\nreversed in part and remanded with instructions to remand to\nthe state court for any further consideration it deems\nnecessary to remediate the violation of Cuero’s due process\nrights.\n\n\n ORDER\n\n Both Judges O’Scannlain and Silverman voted to deny\nAppellant’s petition for panel rehearing. Judge Wardlaw\nvotes to grant the petition for panel rehearing. Accordingly,\nAppellant’s petition for panel rehearing is DENIED.\n[END_CASE]", "role": "user" } ]
4,585,195		Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC	2019-01-28	17-16510	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ASPIC ENGINEERING AND No. 17-16510\n CONSTRUCTION COMPANY,\n Plaintiff-Appellant, D.C. No.\n 4:17-cv-00224-\n v. YGR\n\n ECC CENTCOM CONSTRUCTORS\n LLC; ECC INTERNATIONAL LLC, OPINION\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Yvonne Gonzalez Rogers, District Judge, Presiding\n\n Argued and Submitted December 17, 2018\n San Francisco, California\n\n Filed January 28, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n SUMMARY \n\n\n Arbitration\n\n The panel affirmed the district court’s order vacating\nunder the Federal Arbitration Act an arbitration award\nconcerning the termination for convenience of two\nsubcontracts for the construction of buildings and facilities\nin Afghanistan.\n\n The subcontracts were in support of defendants’ prime\ncontracts with the U.S. Army Corps of Engineers. The\nsubcontracts incorporated by reference Federal Acquisition\nRegulation (“FAR”) clauses governing termination for\nconvenience, and they contained a clause mandating that\nplaintiff, a local company, owed to defendants the same\nobligations that defendants owed to the U.S. government.\nVoiding parts of the subcontracts, the arbitrator awarded\nplaintiff some of its claimed costs despite plaintiff’s failure\nto comply with FAR requirements.\n\n The panel held that, in finding that plaintiff need not\ncomply with the FAR provisions, the arbitrator exceeded his\npowers and failed to draw the essence of the award from the\nsubcontracts. The arbitrator’s award was “irrational”\nbecause he improperly based his conclusion not on past\npractices, but on his rationalization that to enforce the FAR\nclauses on plaintiff would be unjust.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 3\n\n COUNSEL\n\nWalt Pennington (argued), Pennington Law Firm, San\nDiego, California, for Plaintiff-Appellant.\n\nJoseph G. Martinez (argued), Dentons US LLP, Denver,\nColorado; Andrew S. Azarmi, Dentons US LLP, San\nFrancisco, California; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In this opinion, we review the award to Aspic\nEngineering and Construction Company (Aspic) following\narbitration between Aspic and ECC Centcom Constructors,\nLLC and ECC International, LLC (together, ECC). ECC and\nAspic entered into arbitration to resolve how much money\nECC owed Aspic after ECC terminated for convenience two\nsubcontracts it had awarded to Aspic. The arbitrator\nawarded Aspic just over $1 million, but ECC sought\nsuccessfully to vacate the award in the district court. We\naffirm the district court’s vacation of the arbitration award.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. The Subcontracts\n\n In support of its prime contracts with the United States\nArmy Corps of Engineers (USACE), ECC awarded Aspic\ntwo subcontracts for the construction of various buildings\nand facilities in Afghanistan. The first was to be performed\nin Badghis province (the Badghis Subcontract). The second\nrequired the construction of a training facility in Sheberghan\nprovince (Sheberghan Subcontract).\n\f4 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n The Badghis Subcontract and the Shebergan Subcontract\n(together, the Subcontracts) contained terms and conditions\n“applicable to all U.S. Government subcontracts.”\nSpecifically, the Subcontracts incorporated many Federal\nAcquisition Regulation (FAR) 1 clauses by reference, or in\nhaec verba. These clauses included FAR 49.2 through 49.6,\nwhich govern termination for convenience. The\nSubcontracts also contained the following clause mandating\nthat Aspic owe to ECC the same obligations that ECC owed\nto the United States government, as set forth in the FAR\nclauses: “The obligations of [ECC] to the Government as\nprovided in said clauses shall be deemed to be the\nobligations of Subcontractor to [ECC].”\n\n USACE eventually terminated ECC’s prime contract for\nconvenience on the Badghis project. Days later, ECC\nnotified Aspic that it was terminating the Badghis\nSubcontract for convenience. Understandably, Aspic sought\npayment for its expenses. On February 9, 2014, Aspic\nsubmitted its termination settlement proposal for the\nBadghis project to ECC. After review, ECC informed Aspic\nthat the corroborative documents it had submitted in support\nof its settlement proposal were inadequate, and Aspic\nadmitted it did not have many of the required materials.\nNevertheless, ECC eventually submitted its termination\nsettlement proposal to USACE, and included Aspic’s claim\nfor $229,915 in termination costs within that proposal.\n\n Upon receipt of the termination settlement proposal,\nUSACE notified ECC that it would not pay any of ECC’s\nsubcontractor termination costs—including the money\nAspic claimed it was owed—until the Defense Contract\n\n 1\n Title 48 of the Code of Federal Regulations contains the FAR\nregulations.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 5\n\nAudit Agency had conducted an audit. Following that audit,\nUSACE informed ECC that it had overpaid Aspic for its\nperformance under the Badghis Subcontract. In light of that\ndetermination, USACE refused to pay any of Aspic’s\nclaimed termination costs.\n\n USACE also terminated ECC’s contract for the\nSheberghan project for convenience. Two days later, ECC\nterminated the Sheberghan Subcontract for convenience.\n\n Aspic again submitted a termination settlement proposal\nto ECC, this time requesting $1,032,462. ECC, however, did\nnot present these claimed costs to the USACE. USACE\neventually issued a no-cost termination settlement between\nUSACE and ECC—a settlement in which USACE claimed\nthat the money previously paid to ECC and its\nsubcontractors, including Aspic, constituted adequate\ncompensation.\n\nII. Prior Proceedings\n\n Aspic believed it deserved more money for its efforts\nunder the Subcontracts. In August 2015, it submitted a\nsettlement demand for $652,000 on the Sheberghan\nSubcontract. ECC refused to pay, so Aspic filed for\narbitration. Aspic again tried to settle the dispute—issuing\nsettlement offers of $830,000 to ECC Centcom Constructors\nand $150,000 to ECC International—but ECC did not accept\neither of these offers.\n\n In accordance with the Subcontracts, the parties\nproceeded to arbitration. 2 The Arbitrator issued a Partial\n 2\n Part A “General Terms and Conditions” of the Subcontracts\ncontained provisions requiring arbitration for disputes arising from the\ncontracts and the application of California law.\n\f6 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nFinal Award, awarding Aspic $1,072,520.90 and holding\nECC Centcom Constructors and ECC International jointly\nand severally liable for the total amount. Aspic then sought\nattorneys’ fees and costs. Contemporaneously, ECC moved\nto reduce the Partial Final Award by Aspic’s waived\ndamages, and opposed Aspic’s request by arguing that each\nparty ought to bear its own attorneys’ fees. The Arbitrator’s\nFinal Award (the Award) incorporated the Partial Final\nAward, denied attorneys’ fees and costs, and awarded Aspic\nhalf of the administrative fees and expenses.\n\n Aspic filed a petition in the Superior Court for San Mateo\nCounty, California seeking to confirm the Award. Aspic\nalso sought to reverse the Arbitrator’s determination that it\nwas not entitled to attorneys’ fees. The Superior Court\naffirmed the Award and modified it to award Aspic\nattorneys’ fees of $435,840, plus all of its arbitration costs.\nThe Superior Court then denied ECC’s ex parte application\nto vacate its prior order.\n\n ECC removed the case to the Northern District of\nCalifornia. Before the district court, ECC renewed its effort\nto vacate the Award and the Superior Court’s judgment.\nAspic did not oppose ECC’s motion to vacate the Superior\nCourt’s judgment, and the district court granted that motion.\n\n The district court then held a hearing on the parties’\nmotions to vacate the Award and to confirm and correct the\nAward. Following the hearing, the district court vacated the\nAward. The court held that the Award conflicted with the\ncontract because the arbitrator “voided and reconstructed\nparts of the Subcontracts based on a belief that the\nSubcontracts did not reflect a ‘true meetings [sic] of the\nminds.’” Aspic moved for reconsideration, which the court\ndenied. Aspic then timely appealed.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 7\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 9 U.S.C. § 16 and\n28 U.S.C. § 1291. The Supreme Court has held that review\nof a district court’s decision confirming an arbitration award\n“should proceed like review of any other district court\ndecision finding an agreement between two parties, e.g.,\naccepting findings of fact that are not ‘clearly erroneous’ but\ndeciding questions of law de novo.” First Options of\nChicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). We\napply the same standard of review where the district court\nvacates an arbitration award. See Aramark Facility Servs. v.\nServ. Emp’s Int’l Union, Local 1877, AFL CIO, 530 F.3d\n817, 822 (9th Cir. 2008) (applying de novo review for legal\nrulings and clear error for findings of fact).\n\n ANALYSIS\n\n Aspic offers a litany of reasons why the Arbitrator’s\nAward was rational. However, that argument ignores our\nlimited powers when reviewing arbitrated cases. Pursuant to\nthe Federal Arbitration Act (FAA), we “must” confirm an\narbitration award unless we vacate, modify, or correct the\naward as prescribed in 9 U.S.C. §§ 10 and 11. Bosack v.\nSoward, 586 F.3d 1096, 1102 (9th Cir. 2009). “Neither\nerroneous legal conclusions nor unsubstantiated factual\nfindings justify federal court review” of an arbitral award\nunder the FAA. Id. Review of an arbitration award is “both\nlimited and highly deferential.” Comedy Club, Inc. v.\nImprov W. Assocs., 553 F.3d 1277, 1288 (9th Cir. 2009)\n(quoting Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d\n1187, 1193 (9th Cir. 2004)).\n\n We may vacate an arbitration award where, among other\nreasons, “the arbitrators exceeded their powers, or so\nimperfectly executed them that a mutual, final, and definite\n\f8 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\naward upon the subject matter submitted was not made.”\n9 U.S.C. § 10. We have held that arbitrators “exceed their\npowers” when the award is “completely irrational” or\nexhibits a “manifest disregard of the law.” Kyocera Corp. v.\nPrudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th\nCir. 2003) (internal citations omitted).\n\n An award is completely irrational “only where the\narbitration decision fails to draw its essence from the\nagreement.” Comedy Club, 553 F.3d at 1288 (quoting\nHoffman v. Cargill Inc., 236 F.3d 458, 461–62 (8th Cir.\n2001)). An arbitration award “draws its essence from the\nagreement” if the award is derived from the agreement,\nviewed “in light of the agreement’s language and context, as\nwell as other indications of the parties’ intentions.” Bosack,\n586 F.3d at 1106 (quoting McGrann v. First Albany Corp.,\n424 F.3d 743, 749 (8th Cir. 2005)). Under this standard of\nreview, we decide “only whether the [arbitrator’s] decision\n‘draws its essence’ from the contract,” not the “rightness or\nwrongness” of the arbitrator’s contract interpretation. Id.\n(quoting Pacific Reinsurance Mgmt. Corp. v. Ohio\nReinsurance Corp., 935 F.2d 1019, 1024 (9th Cir. 1991)).\n\n The question in this appeal, therefore, is not whether the\nArbitrator’s Award was reasonable overall, but whether the\nArbitrator exceeded his powers in finding that Aspic need\nnot comply with the FAR provisions. We hold that he did.\n\n In this case, the Arbitrator held, in relevant part:\n\n The parties entered into two lengthy\n subcontract agreements for the two projects\n which were prepared by ECC and presented\n to ASPIC. Each subcontract included very\n detailed provisions relating to Federal\n regulations governing the work as well as\n\fASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 9\n\n pass through and ‘Pay when/if Paid’ clauses.\n The subcontracts were somewhat onerous as\n to ASPIC and were clearly drafted to give\n every advantage to ECC. In light of the fact\n that the ASPIC was a local Afghanistan\n subcontractor that had some experience with\n government contracting but not nearly as\n extensive as that of ECC, and in view of the\n fact that the normal business practices and\n customs of subcontractors in Afghanistan\n were more ‘primitive’ than those of U.S[.]\n subcontractors experienced with U.S[.]\n Government work, it was not reasonable to\n expect that Afghanistan subcontractors\n would be able to conform to the strict and\n detailed requirements of general contractors\n on U.S. Federal projects. Notwithstanding\n that expectation, ECC prepared its\n subcontract agreements to require the same\n level of precision and adherence to Federal\n procedures from ASPIC as ECC had toward\n the USACE through the pass through\n provisions of the agreements.\n\n It was not reasonable that when the parties\n entered into the subcontract agreements, they\n both had the same expectations as to the\n performance of the agreements. ECC could\n not expect that ASPIC would be capable of\n modifying their local business practices to\n completely and strictly conform to the US\n governmental contracting practices that were\n normal to ECC. There was not a true meeting\n of the minds when the subcontract\n agreements were entered. Hence, ASPIC was\n\f10 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n not held to the strict provisions of the\n subcontract agreements that ECC had to the\n USACE. This arbitration demonstrated that\n ASPIC conducted its business practices in a\n manner normal to Afghanistan which was\n clearly not the same as a U[.]S[.]\n subcontractor working on a Federal project in\n the U.S. (emphasis added).\n\n Aspic contends that vacatur of the Award is not\nwarranted because the Arbitrator did not exceed his powers\nin holding that ECC never intended for Aspic to conform\nfully to the Subcontracts’ terms. Conversely, ECC argues\nthat the Arbitrator erred by explicitly disregarding the\nSubcontracts’ requirements. The crux of this dispute,\ntherefore, is whether the Arbitrator improperly strayed from\nthe plain text of the contract.\n\n An arbitrator may interpret the contract “in light of . . .\nindications of the parties’ intentions” and find that the\nparties’ conduct modified the text of a contract. See Bosack,\n586 F.3d at 1106. In Metzler Contracting Co. v. Stephens,\nfor example, we held that an arbitrator acted within his\npowers when he concluded that the parties, “through their\nacts and conduct,” had waived a portion of the underlying\ncost-plus contract. 479 F. App’x 783, 784 (9th Cir. 2012).\nWe found “plausible” the arbitrator’s interpretation of the\ncontract despite the contract’s provision limiting the parties’\nability to waive contract provisions. Id. at 784–85.\n\n What an arbitrator may not do, however, is disregard\ncontract provisions to achieve a desired result. In Pacific\nMotor Trucking Co. v. Automotive Machinists Union, the\narbitrator ruled that the company could not demote an\nemployee from the Working Foreman position\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 11\n\nnotwithstanding the fact that the contract granted the\ncompany discretion over the position. 702 F.2d 176, 177\n(9th Cir. 1983). We noted that while the arbitrator attempted\nto “justify the award on the basis of past practice . . . there\nwas no practice indicating that the employer lacked\ndiscretion over maintaining the [Working Foreman]\nposition.” Id. Thus, we held that the district court properly\nvacated the award because the arbitrator “dispense[d] his\nown brand of industrial justice” by “disregard[ing] a specific\ncontract provision to correct what he perceived as an\ninjustice.” Id. (quoting United Steelworkers of Am. v.\nEnterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).\n\n Here, the Subcontracts incorporate numerous FAR\nprovisions, including those that govern termination for\nconvenience and the settlement procedure. FAR § 52.249-2\nsets forth the procedure to be used in the event of termination\nfor convenience. 48 C.F.R. § 52.249-2. FAR § 49.108-3\nrequires that each settlement be “supported by accounting\ndata and other information sufficient for adequate review by\nthe Government,” and “in general conformity with the\npolicies and principles . . . in this subpart and subparts 49.2\nor 49.3.” 48 C.F.R. § 49.108-3.\n\n As the district court determined, the Award “conflicts\ndirectly with the [Sub]contract[s].” The Arbitrator\nrecognized that the Subcontracts’ pass-through provisions\nobligated Aspic to meet the FAR requirements, yet he found\nthat Aspic “was not held to the[se] strict provisions” based\non Aspic “conduct[ing] its business practices in a manner\nnormal to Afghanistan.” This finding alone—if based on\npast practice—would be insufficient for us to vacate an\narbitral award.\n\n In arriving at that conclusion, however, the Arbitrator\nevaded the pass-through provisions by determining that\n\f12 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nthere was not a true “meeting of the minds” when the parties\nformed the Subcontracts because “the normal business\npractices and customs of subcontractors in Afghanistan were\nmore ‘primitive’ than those of U.S. subcontractors,” and\nECC could not expect Aspic to “strictly conform” to United\nStates governmental contracting regulations. The Arbitrator\nthen alluded to Aspic’s hand-written receipts written in the\n“native language” and the use of dates from the Islamic\ncalendar. The Arbitrator found that rejecting Aspic’s\nsupporting materials because they were not translated into\nEnglish and the Gregorian calendar “would result in a\nforfeiture and unfairness in the resolution of the Aspic\nclaims.”\n\n These facts demonstrate that despite finding that the\nSubcontracts plainly required Aspic to comply with the FAR\nsections, the Arbitrator reasoned that the expectation of a\nseemingly less sophisticated contractor complying with\nthese regulations was unreasonable. Thus, the Arbitrator did\nnot base his conclusion upon Aspic and ECC’s actual past\nprocedures, but upon his rationalization that to enforce the\nFAR clauses on Aspic would be unjust. This an arbitrator\nmay not do.\n\n By concluding that Aspic need not comply with the FAR\nrequirements, the Arbitrator exceeded his authority and\nfailed to draw the essence of the Award from the\nSubcontracts. The Award disregarded specific provisions of\nthe plain text in an effort to prevent what the Arbitrator\ndeemed an unfair result. Such an award is “irrational.”\n\n Our conclusion is further supported by the fact that\nneither party argued that the FAR provisions did not apply\nin their arbitration briefs. To the contrary, substantial\nportions of the parties’ briefs emphasize the other’s failure\nto comply with certain FAR sections: Aspic decried ECC’s\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 13\n\nviolation of its duty to settle set forth in FAR § 49.108-3, and\nECC contended that Aspic failed to properly present its\nsettlement costs to ECC pursuant to FAR § 52.249-2.\n\n We observe that it is a serious matter when an arbitral\naward determines that a (sub)contractor need not comply\nwith the federal contracting regulations when no past\npractices demonstrate variation from those requirements.\nThese regulations, while undoubtedly extensive, permit the\ngovernment to maintain fairly uniform contracting standards\nin the many contracts it enters into with parties located in the\nUnited States and around the world. See 48 C.F.R. § 1.101\n(“The [FAR] System is established for the codification and\npublication of uniform policies and procedures for\nacquisition by all executive agencies.”). To allow\ncontractors and subcontractors, foreign or domestic, to evade\nthe FAR provisions because a subcontractor was too\nunsophisticated or inexperienced to fully understand them\nwould potentially cripple the government’s ability to\ncontract with private entities, and would violate controlling\nfederal law.\n\n CONCLUSION\n\n We have become an arbitration nation. An increasing\nnumber of private disputes are resolved not by courts, but by\narbitrators. Although courts play a limited role in reviewing\narbitral awards, our duty remains an important one. When\nan arbitrator disregards the plain text of a contract without\nlegal justification simply to reach a result that he believes is\njust, we must intervene.\n\n The Arbitrator’s Award in this case was “irrational”\nbecause it directly conflicted with the Subcontracts’ FAR-\nrelated provisions, without evidence of the parties’ past\npractices deviating from them, in order to achieve a desired\n\f14 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\noutcome. We therefore affirm the district court’s vacatur of\nthe Award. Because we affirm the district court, we also\nconclude that Aspic’s argument that the Arbitrator erred in\nfailing to award it attorneys’ fees and arbitral costs is moot.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362448/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	JANE A RESTANI	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585195/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ASPIC ENGINEERING AND No. 17-16510\n CONSTRUCTION COMPANY,\n Plaintiff-Appellant, D.C. No.\n 4:17-cv-00224-\n v. YGR\n\n ECC CENTCOM CONSTRUCTORS\n LLC; ECC INTERNATIONAL LLC, OPINION\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Yvonne Gonzalez Rogers, District Judge, Presiding\n\n Argued and Submitted December 17, 2018\n San Francisco, California\n\n Filed January 28, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n SUMMARY \n\n\n Arbitration\n\n The panel affirmed the district court’s order vacating\nunder the Federal Arbitration Act an arbitration award\nconcerning the termination for convenience of two\nsubcontracts for the construction of buildings and facilities\nin Afghanistan.\n\n The subcontracts were in support of defendants’ prime\ncontracts with the U.S. Army Corps of Engineers. The\nsubcontracts incorporated by reference Federal Acquisition\nRegulation (“FAR”) clauses governing termination for\nconvenience, and they contained a clause mandating that\nplaintiff, a local company, owed to defendants the same\nobligations that defendants owed to the U.S. government.\nVoiding parts of the subcontracts, the arbitrator awarded\nplaintiff some of its claimed costs despite plaintiff’s failure\nto comply with FAR requirements.\n\n The panel held that, in finding that plaintiff need not\ncomply with the FAR provisions, the arbitrator exceeded his\npowers and failed to draw the essence of the award from the\nsubcontracts. The arbitrator’s award was “irrational”\nbecause he improperly based his conclusion not on past\npractices, but on his rationalization that to enforce the FAR\nclauses on plaintiff would be unjust.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 3\n\n COUNSEL\n\nWalt Pennington (argued), Pennington Law Firm, San\nDiego, California, for Plaintiff-Appellant.\n\nJoseph G. Martinez (argued), Dentons US LLP, Denver,\nColorado; Andrew S. Azarmi, Dentons US LLP, San\nFrancisco, California; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In this opinion, we review the award to Aspic\nEngineering and Construction Company (Aspic) following\narbitration between Aspic and ECC Centcom Constructors,\nLLC and ECC International, LLC (together, ECC). ECC and\nAspic entered into arbitration to resolve how much money\nECC owed Aspic after ECC terminated for convenience two\nsubcontracts it had awarded to Aspic. The arbitrator\nawarded Aspic just over $1 million, but ECC sought\nsuccessfully to vacate the award in the district court. We\naffirm the district court’s vacation of the arbitration award.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. The Subcontracts\n\n In support of its prime contracts with the United States\nArmy Corps of Engineers (USACE), ECC awarded Aspic\ntwo subcontracts for the construction of various buildings\nand facilities in Afghanistan. The first was to be performed\nin Badghis province (the Badghis Subcontract). The second\nrequired the construction of a training facility in Sheberghan\nprovince (Sheberghan Subcontract).\n\f4 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n The Badghis Subcontract and the Shebergan Subcontract\n(together, the Subcontracts) contained terms and conditions\n“applicable to all U.S. Government subcontracts.”\nSpecifically, the Subcontracts incorporated many Federal\nAcquisition Regulation (FAR) 1 clauses by reference, or in\nhaec verba. These clauses included FAR 49.2 through 49.6,\nwhich govern termination for convenience. The\nSubcontracts also contained the following clause mandating\nthat Aspic owe to ECC the same obligations that ECC owed\nto the United States government, as set forth in the FAR\nclauses: “The obligations of [ECC] to the Government as\nprovided in said clauses shall be deemed to be the\nobligations of Subcontractor to [ECC].”\n\n USACE eventually terminated ECC’s prime contract for\nconvenience on the Badghis project. Days later, ECC\nnotified Aspic that it was terminating the Badghis\nSubcontract for convenience. Understandably, Aspic sought\npayment for its expenses. On February 9, 2014, Aspic\nsubmitted its termination settlement proposal for the\nBadghis project to ECC. After review, ECC informed Aspic\nthat the corroborative documents it had submitted in support\nof its settlement proposal were inadequate, and Aspic\nadmitted it did not have many of the required materials.\nNevertheless, ECC eventually submitted its termination\nsettlement proposal to USACE, and included Aspic’s claim\nfor $229,915 in termination costs within that proposal.\n\n Upon receipt of the termination settlement proposal,\nUSACE notified ECC that it would not pay any of ECC’s\nsubcontractor termination costs—including the money\nAspic claimed it was owed—until the Defense Contract\n\n 1\n Title 48 of the Code of Federal Regulations contains the FAR\nregulations.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 5\n\nAudit Agency had conducted an audit. Following that audit,\nUSACE informed ECC that it had overpaid Aspic for its\nperformance under the Badghis Subcontract. In light of that\ndetermination, USACE refused to pay any of Aspic’s\nclaimed termination costs.\n\n USACE also terminated ECC’s contract for the\nSheberghan project for convenience. Two days later, ECC\nterminated the Sheberghan Subcontract for convenience.\n\n Aspic again submitted a termination settlement proposal\nto ECC, this time requesting $1,032,462. ECC, however, did\nnot present these claimed costs to the USACE. USACE\neventually issued a no-cost termination settlement between\nUSACE and ECC—a settlement in which USACE claimed\nthat the money previously paid to ECC and its\nsubcontractors, including Aspic, constituted adequate\ncompensation.\n\nII. Prior Proceedings\n\n Aspic believed it deserved more money for its efforts\nunder the Subcontracts. In August 2015, it submitted a\nsettlement demand for $652,000 on the Sheberghan\nSubcontract. ECC refused to pay, so Aspic filed for\narbitration. Aspic again tried to settle the dispute—issuing\nsettlement offers of $830,000 to ECC Centcom Constructors\nand $150,000 to ECC International—but ECC did not accept\neither of these offers.\n\n In accordance with the Subcontracts, the parties\nproceeded to arbitration. 2 The Arbitrator issued a Partial\n 2\n Part A “General Terms and Conditions” of the Subcontracts\ncontained provisions requiring arbitration for disputes arising from the\ncontracts and the application of California law.\n\f6 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nFinal Award, awarding Aspic $1,072,520.90 and holding\nECC Centcom Constructors and ECC International jointly\nand severally liable for the total amount. Aspic then sought\nattorneys’ fees and costs. Contemporaneously, ECC moved\nto reduce the Partial Final Award by Aspic’s waived\ndamages, and opposed Aspic’s request by arguing that each\nparty ought to bear its own attorneys’ fees. The Arbitrator’s\nFinal Award (the Award) incorporated the Partial Final\nAward, denied attorneys’ fees and costs, and awarded Aspic\nhalf of the administrative fees and expenses.\n\n Aspic filed a petition in the Superior Court for San Mateo\nCounty, California seeking to confirm the Award. Aspic\nalso sought to reverse the Arbitrator’s determination that it\nwas not entitled to attorneys’ fees. The Superior Court\naffirmed the Award and modified it to award Aspic\nattorneys’ fees of $435,840, plus all of its arbitration costs.\nThe Superior Court then denied ECC’s ex parte application\nto vacate its prior order.\n\n ECC removed the case to the Northern District of\nCalifornia. Before the district court, ECC renewed its effort\nto vacate the Award and the Superior Court’s judgment.\nAspic did not oppose ECC’s motion to vacate the Superior\nCourt’s judgment, and the district court granted that motion.\n\n The district court then held a hearing on the parties’\nmotions to vacate the Award and to confirm and correct the\nAward. Following the hearing, the district court vacated the\nAward. The court held that the Award conflicted with the\ncontract because the arbitrator “voided and reconstructed\nparts of the Subcontracts based on a belief that the\nSubcontracts did not reflect a ‘true meetings [sic] of the\nminds.’” Aspic moved for reconsideration, which the court\ndenied. Aspic then timely appealed.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 7\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 9 U.S.C. § 16 and\n28 U.S.C. § 1291. The Supreme Court has held that review\nof a district court’s decision confirming an arbitration award\n“should proceed like review of any other district court\ndecision finding an agreement between two parties, e.g.,\naccepting findings of fact that are not ‘clearly erroneous’ but\ndeciding questions of law de novo.” First Options of\nChicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). We\napply the same standard of review where the district court\nvacates an arbitration award. See Aramark Facility Servs. v.\nServ. Emp’s Int’l Union, Local 1877, AFL CIO, 530 F.3d\n817, 822 (9th Cir. 2008) (applying de novo review for legal\nrulings and clear error for findings of fact).\n\n ANALYSIS\n\n Aspic offers a litany of reasons why the Arbitrator’s\nAward was rational. However, that argument ignores our\nlimited powers when reviewing arbitrated cases. Pursuant to\nthe Federal Arbitration Act (FAA), we “must” confirm an\narbitration award unless we vacate, modify, or correct the\naward as prescribed in 9 U.S.C. §§ 10 and 11. Bosack v.\nSoward, 586 F.3d 1096, 1102 (9th Cir. 2009). “Neither\nerroneous legal conclusions nor unsubstantiated factual\nfindings justify federal court review” of an arbitral award\nunder the FAA. Id. Review of an arbitration award is “both\nlimited and highly deferential.” Comedy Club, Inc. v.\nImprov W. Assocs., 553 F.3d 1277, 1288 (9th Cir. 2009)\n(quoting Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d\n1187, 1193 (9th Cir. 2004)).\n\n We may vacate an arbitration award where, among other\nreasons, “the arbitrators exceeded their powers, or so\nimperfectly executed them that a mutual, final, and definite\n\f8 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\naward upon the subject matter submitted was not made.”\n9 U.S.C. § 10. We have held that arbitrators “exceed their\npowers” when the award is “completely irrational” or\nexhibits a “manifest disregard of the law.” Kyocera Corp. v.\nPrudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th\nCir. 2003) (internal citations omitted).\n\n An award is completely irrational “only where the\narbitration decision fails to draw its essence from the\nagreement.” Comedy Club, 553 F.3d at 1288 (quoting\nHoffman v. Cargill Inc., 236 F.3d 458, 461–62 (8th Cir.\n2001)). An arbitration award “draws its essence from the\nagreement” if the award is derived from the agreement,\nviewed “in light of the agreement’s language and context, as\nwell as other indications of the parties’ intentions.” Bosack,\n586 F.3d at 1106 (quoting McGrann v. First Albany Corp.,\n424 F.3d 743, 749 (8th Cir. 2005)). Under this standard of\nreview, we decide “only whether the [arbitrator’s] decision\n‘draws its essence’ from the contract,” not the “rightness or\nwrongness” of the arbitrator’s contract interpretation. Id.\n(quoting Pacific Reinsurance Mgmt. Corp. v. Ohio\nReinsurance Corp., 935 F.2d 1019, 1024 (9th Cir. 1991)).\n\n The question in this appeal, therefore, is not whether the\nArbitrator’s Award was reasonable overall, but whether the\nArbitrator exceeded his powers in finding that Aspic need\nnot comply with the FAR provisions. We hold that he did.\n\n In this case, the Arbitrator held, in relevant part:\n\n The parties entered into two lengthy\n subcontract agreements for the two projects\n which were prepared by ECC and presented\n to ASPIC. Each subcontract included very\n detailed provisions relating to Federal\n regulations governing the work as well as\n\fASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 9\n\n pass through and ‘Pay when/if Paid’ clauses.\n The subcontracts were somewhat onerous as\n to ASPIC and were clearly drafted to give\n every advantage to ECC. In light of the fact\n that the ASPIC was a local Afghanistan\n subcontractor that had some experience with\n government contracting but not nearly as\n extensive as that of ECC, and in view of the\n fact that the normal business practices and\n customs of subcontractors in Afghanistan\n were more ‘primitive’ than those of U.S[.]\n subcontractors experienced with U.S[.]\n Government work, it was not reasonable to\n expect that Afghanistan subcontractors\n would be able to conform to the strict and\n detailed requirements of general contractors\n on U.S. Federal projects. Notwithstanding\n that expectation, ECC prepared its\n subcontract agreements to require the same\n level of precision and adherence to Federal\n procedures from ASPIC as ECC had toward\n the USACE through the pass through\n provisions of the agreements.\n\n It was not reasonable that when the parties\n entered into the subcontract agreements, they\n both had the same expectations as to the\n performance of the agreements. ECC could\n not expect that ASPIC would be capable of\n modifying their local business practices to\n completely and strictly conform to the US\n governmental contracting practices that were\n normal to ECC. There was not a true meeting\n of the minds when the subcontract\n agreements were entered. Hence, ASPIC was\n\f10 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n not held to the strict provisions of the\n subcontract agreements that ECC had to the\n USACE. This arbitration demonstrated that\n ASPIC conducted its business practices in a\n manner normal to Afghanistan which was\n clearly not the same as a U[.]S[.]\n subcontractor working on a Federal project in\n the U.S. (emphasis added).\n\n Aspic contends that vacatur of the Award is not\nwarranted because the Arbitrator did not exceed his powers\nin holding that ECC never intended for Aspic to conform\nfully to the Subcontracts’ terms. Conversely, ECC argues\nthat the Arbitrator erred by explicitly disregarding the\nSubcontracts’ requirements. The crux of this dispute,\ntherefore, is whether the Arbitrator improperly strayed from\nthe plain text of the contract.\n\n An arbitrator may interpret the contract “in light of . . .\nindications of the parties’ intentions” and find that the\nparties’ conduct modified the text of a contract. See Bosack,\n586 F.3d at 1106. In Metzler Contracting Co. v. Stephens,\nfor example, we held that an arbitrator acted within his\npowers when he concluded that the parties, “through their\nacts and conduct,” had waived a portion of the underlying\ncost-plus contract. 479 F. App’x 783, 784 (9th Cir. 2012).\nWe found “plausible” the arbitrator’s interpretation of the\ncontract despite the contract’s provision limiting the parties’\nability to waive contract provisions. Id. at 784–85.\n\n What an arbitrator may not do, however, is disregard\ncontract provisions to achieve a desired result. In Pacific\nMotor Trucking Co. v. Automotive Machinists Union, the\narbitrator ruled that the company could not demote an\nemployee from the Working Foreman position\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 11\n\nnotwithstanding the fact that the contract granted the\ncompany discretion over the position. 702 F.2d 176, 177\n(9th Cir. 1983). We noted that while the arbitrator attempted\nto “justify the award on the basis of past practice . . . there\nwas no practice indicating that the employer lacked\ndiscretion over maintaining the [Working Foreman]\nposition.” Id. Thus, we held that the district court properly\nvacated the award because the arbitrator “dispense[d] his\nown brand of industrial justice” by “disregard[ing] a specific\ncontract provision to correct what he perceived as an\ninjustice.” Id. (quoting United Steelworkers of Am. v.\nEnterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).\n\n Here, the Subcontracts incorporate numerous FAR\nprovisions, including those that govern termination for\nconvenience and the settlement procedure. FAR § 52.249-2\nsets forth the procedure to be used in the event of termination\nfor convenience. 48 C.F.R. § 52.249-2. FAR § 49.108-3\nrequires that each settlement be “supported by accounting\ndata and other information sufficient for adequate review by\nthe Government,” and “in general conformity with the\npolicies and principles . . . in this subpart and subparts 49.2\nor 49.3.” 48 C.F.R. § 49.108-3.\n\n As the district court determined, the Award “conflicts\ndirectly with the [Sub]contract[s].” The Arbitrator\nrecognized that the Subcontracts’ pass-through provisions\nobligated Aspic to meet the FAR requirements, yet he found\nthat Aspic “was not held to the[se] strict provisions” based\non Aspic “conduct[ing] its business practices in a manner\nnormal to Afghanistan.” This finding alone—if based on\npast practice—would be insufficient for us to vacate an\narbitral award.\n\n In arriving at that conclusion, however, the Arbitrator\nevaded the pass-through provisions by determining that\n\f12 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nthere was not a true “meeting of the minds” when the parties\nformed the Subcontracts because “the normal business\npractices and customs of subcontractors in Afghanistan were\nmore ‘primitive’ than those of U.S. subcontractors,” and\nECC could not expect Aspic to “strictly conform” to United\nStates governmental contracting regulations. The Arbitrator\nthen alluded to Aspic’s hand-written receipts written in the\n“native language” and the use of dates from the Islamic\ncalendar. The Arbitrator found that rejecting Aspic’s\nsupporting materials because they were not translated into\nEnglish and the Gregorian calendar “would result in a\nforfeiture and unfairness in the resolution of the Aspic\nclaims.”\n\n These facts demonstrate that despite finding that the\nSubcontracts plainly required Aspic to comply with the FAR\nsections, the Arbitrator reasoned that the expectation of a\nseemingly less sophisticated contractor complying with\nthese regulations was unreasonable. Thus, the Arbitrator did\nnot base his conclusion upon Aspic and ECC’s actual past\nprocedures, but upon his rationalization that to enforce the\nFAR clauses on Aspic would be unjust. This an arbitrator\nmay not do.\n\n By concluding that Aspic need not comply with the FAR\nrequirements, the Arbitrator exceeded his authority and\nfailed to draw the essence of the Award from the\nSubcontracts. The Award disregarded specific provisions of\nthe plain text in an effort to prevent what the Arbitrator\ndeemed an unfair result. Such an award is “irrational.”\n\n Our conclusion is further supported by the fact that\nneither party argued that the FAR provisions did not apply\nin their arbitration briefs. To the contrary, substantial\nportions of the parties’ briefs emphasize the other’s failure\nto comply with certain FAR sections: Aspic decried ECC’s\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 13\n\nviolation of its duty to settle set forth in FAR § 49.108-3, and\nECC contended that Aspic failed to properly present its\nsettlement costs to ECC pursuant to FAR § 52.249-2.\n\n We observe that it is a serious matter when an arbitral\naward determines that a (sub)contractor need not comply\nwith the federal contracting regulations when no past\npractices demonstrate variation from those requirements.\nThese regulations, while undoubtedly extensive, permit the\ngovernment to maintain fairly uniform contracting standards\nin the many contracts it enters into with parties located in the\nUnited States and around the world. See 48 C.F.R. § 1.101\n(“The [FAR] System is established for the codification and\npublication of uniform policies and procedures for\nacquisition by all executive agencies.”). To allow\ncontractors and subcontractors, foreign or domestic, to evade\nthe FAR provisions because a subcontractor was too\nunsophisticated or inexperienced to fully understand them\nwould potentially cripple the government’s ability to\ncontract with private entities, and would violate controlling\nfederal law.\n\n CONCLUSION\n\n We have become an arbitration nation. An increasing\nnumber of private disputes are resolved not by courts, but by\narbitrators. Although courts play a limited role in reviewing\narbitral awards, our duty remains an important one. When\nan arbitrator disregards the plain text of a contract without\nlegal justification simply to reach a result that he believes is\njust, we must intervene.\n\n The Arbitrator’s Award in this case was “irrational”\nbecause it directly conflicted with the Subcontracts’ FAR-\nrelated provisions, without evidence of the parties’ past\npractices deviating from them, in order to achieve a desired\n\f14 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\noutcome. We therefore affirm the district court’s vacatur of\nthe Award. Because we affirm the district court, we also\nconclude that Aspic’s argument that the Arbitrator erred in\nfailing to award it attorneys’ fees and arbitral costs is moot.\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,585,457		Wiley Gill v. DOJ	2019-01-29	17-16107	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and RICHARD K. EATON, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nWILEY GILL; JAMES PRIGOFF; No. 17-16107\nTARIQ RAZAK; KHALED IBRAHIM;\nAARON CONKLIN, D.C. No.\n Plaintiffs-Appellants, 3:14-cv-03120-RS\n\n v.\n OPINION\nUNITED STATES DEPARTMENT OF\nJUSTICE; MATTHEW WHITAKER,\nActing Attorney General;\nPROGRAM MANAGER -\nINFORMATION SHARING\nENVIRONMENT; THE OFFICE OF\nTHE PROGRAM MANAGER OF THE\nINFORMATION SHARING\nENVIRONMENT,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Richard Seeborg, District Judge, Presiding\n\n Argued and Submitted October 18, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\f2 GILL V. USDOJ\n\n Before: MILAN D. SMITH, JR. and ANDREW D.\n HURWITZ, Circuit Judges, and RICHARD K. EATON, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n SUMMARY \n\n\n Administrative Procedure Act\n\n The panel affirmed the district court’s summary\njudgment in favor of federal defendants in an action under\nthe Administrative Procedure Act (“APA”) challenging the\nFunctional Standard regarding the sharing of terrorism-\nrelated information.\n\n In the wake of 9/11, the federal government sought to\nstandardize the sharing of terrorism-related information\nthrough the adoption of a Functional Standard. Plaintiffs are\nUnited States citizens who are the subjects of a Suspicious\nActivity Report (SAR) or Information Sharing Environment\n(ISE)-SAR, none of whom have been charged with a crime.\n\n The panel held that the Functional Standard constituted\nfinal agency action because it had legal and practical effects.\n\n\n\n \n Richard K. Eaton, Judge of the United States Court of International\nTrade, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILL V. USDOJ 3\n\n The panel held that the Functional Standard was exempt\nfrom the APA’s notice and comment requirement because\nthe significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ndemonstrated that the Functional Standard was not a\nlegislative rule. Legislative rules have the force of law, and\nare subject to notice and comment under the APA before\nbecoming effective.\n\n Plaintiffs argued that the Functional Standard was\narbitrary and capricious under the APA because it was\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23. The panel held that the Department of Justice’s\ndecision to exclude SARs from Part 23 was not contrary to\nthe record, and was consistent with the stated objectives of\nthe Nationwide Suspicious Activity Reporting Initiative.\nThe panel concluded that the Functional Standard was not\narbitrary and capricious under the APA.\n\n\n COUNSEL\n\nLinda Lye (argued) and Julia Harumi, American Civil\nLiberties Union Foundation of Northern California Inc., San\nFrancisco, California; Michael James Ableson and Stephen\nScotch-Marmo, Morgan, Lewis & Bockius LLP, New York,\nNew York; Christina Sinha, Asian Americans Advancing\nJustice—Asian Law Caucus, San Francisco, California;\nHugh Handeyside, American Civil Liberties Union\nFoundation, New York, New York; Mitra Ebadolahi,\nAmerican Civil Liberties Union Foundation of San Diego\nand Imperial Counties, San Diego, California; Jeffrey S.\nRaskin, Morgan Lewis & Bockius LLP, San Francisco,\nCalifornia; Peter Bibring, American Civil Liberties Union\n\f4 GILL V. USDOJ\n\nFoundation of Southern California, Los Angeles, California;\nfor Plaintiffs-Appellants.\n\nDaniel Aguilar (argued) and H. Thomas Byron III, Appellate\nStaff; Alex G. Tse, Acting United States Attorney; Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In the wake of 9/11, law enforcement agencies at the\nfederal, state, and local levels found that they were unable to\ncommunicate effectively about potential threats to our\nnational security. In response, the federal government\nsought to standardize the sharing of terrorism-related\ninformation through the adoption of a “Functional\nStandard.” Aaron Conklin, Wiley Gill, Khaled Ibrahim,\nJames Prigoff, and Tariq Razak (collectively, Plaintiffs)\nchallenged the Functional Standard under the\nAdministrative Procedure Act (APA). 1 The district court\ngranted summary judgment in favor of the federal\ndefendants.\n\n We affirm. Although the Functional Standard\nconstitutes final agency action, it was not required to\nundergo the APA notice and comment procedure, nor was it\narbitrary and capricious.\n\n\n 1\n Plaintiffs raised only an APA challenge and do not contend that\nthe Functional Standard is unconstitutional or has been applied to them\nin an unconstitutional manner.\n\f GILL V. USDOJ 5\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n In October 2007, President George W. Bush issued a\nNational Strategy for Information Sharing concerning\nterrorism-related information. The Strategy created fusion\ncenters that would ensure Suspicious Activity Reports\n(SARs) were “disseminated to and evaluated by appropriate\ngovernment authorities,” and identify requirements to\nsupport a “unified process for reporting, tracking, and\naccessing” SARs. The nationwide effort to standardize this\ninformation sharing was called the Nationwide Suspicious\nActivity Reporting Initiative (NSI).\n\n To “govern[] how terrorism information is acquired,\naccessed, shared, and used,” the Program Manager for the\nInformation Sharing Environment (ISE) has issued three\nFunctional Standards since the inception of the NSI, each\nsuperseding the previous one: Functional Standard 1.0\n(issued January 2008), Functional Standard 1.5 (issued May\n2009), and Functional Standard 1.5.5 (issued February\n2015). 2 The current Functional Standard 1.5.5 focuses\n“exclusively on terrorism-related information.”\n\n\n 2\n The Program Manager sought input from various civil liberties\ngroups throughout the process of refining the Functional Standards.\nAfter promulgating Standard 1.0, the Program Manager hosted a\nconference with advocates from the American Civil Liberties Union\n(ACLU) and other privacy and civil liberties groups. The ACLU noted\nits concerns with the overbroad behavioral categories and the Standard’s\ndefinition of a suspicious activity, suggesting a “reasonably indicative”\nstandard. The ACLU also recommended that certain information should\nnot be reported absent reasonable suspicion of criminality.\n\f6 GILL V. USDOJ\n\n The Functional Standard defines suspicious activity as\n“[o]bserved behavior reasonably indicative of pre-\noperational planning associated with terrorism or other\ncriminal activity.” After receiving a report of suspicious\nactivity, an officer creates a SAR. The SAR then undergoes\na two-part evaluation process. An analyst determines\nwhether the SAR meets certain behavioral criteria and has a\npotential nexus to terrorism. 3 If the analyst concludes that it\ndoes, the SAR becomes an ISE-SAR, and is uploaded to the\neGuardian repository, where it is available to all NSI\nparticipants. The ISE-SAR is also input into the Federal\nBureau of Investigation (FBI) classified system and sent to\nthe Department of Homeland Security Office of Intelligence\nAnalysis.\n\n Plaintiffs are United States citizens who are the subjects\nof a SAR or ISE-SAR, none of whom has been charged with\na crime. The ISE-SAR on Gill notes his potential access to\na “flight simulator type of game,” his conversion to Islam,\nand his “pious demeanor.” The FBI visited Gill’s sister and\nquestioned her about Gill’s religious beliefs. Another SAR\ndescribes Razak as a male of believed Middle Eastern\ndescent who “meticulously stud[ied] the entry/exit points”\n\n\n After the ISE issued Functional Standard 1.5, the Program Manager\nre-engaged with the ACLU to obtain their feedback on a draft privacy\nand civil liberties report. The ACLU again recommended that\ninformation meet the reasonably indicative standard before\ndissemination. In May 2013, the ISE held another conference with civil\nliberties groups, including the ACLU, to discuss Functional Standard\n1.5.5.\n\n 3\n The behavioral categories include both defined criminal activity,\nsuch as “Breach/Attempted Intrusion,” “Misrepresentation,” and\n“Cyberattack,” along with other activity, such as “Photography,”\n“Acquisition of Expertise,” and “Weapons Collection/Discovery.”\n\f GILL V. USDOJ 7\n\nof a train station. After the SAR was uploaded to eGuardian,\nthe FBI questioned Razak. The SAR concerning Ibrahim\nnotes his attempt to purchase “a large amount of computers.”\nTwo reports concerning Ibrahim were uploaded to\neGuardian.\n\n Private guards prevented Prigoff, a professional\nphotographer, from taking photographs of a work of public\nart near Boston, an incident resulting in the creation of\nmultiple SARs. The FBI then visited Prigoff’s home and\nquestioned a neighbor about him. In northern California,\nprivate security stopped Conklin, an amateur photographer,\nfrom photographing oil refineries, and during the subsequent\nquestioning, the sheriff’s deputies told him he would be\nplaced on an “NSA watch list.”\n\nII. Procedural Background\n\n In 2014, Plaintiffs sued the Attorney General, the\nDepartment of Justice, and the ISE Program Manager\n(collectively, the Department). The complaint asserted two\nAPA challenges to the Functional Standard, contending that:\n(1) the promulgation of the Functional Standard without\nnotice and comment was unlawful; and (2) the Standard was\narbitrary and capricious because it did not comply with the\n“reasonable suspicion” standard in 28 C.F.R. Part 23 for the\ndissemination of criminal intelligence information. 4\n\n The Department moved to dismiss, arguing that\nPlaintiffs lacked standing, and that the Functional Standard\n\n\n\n 4\n At the onset of this lawsuit, only Functional Standard 1.5 was at\nissue. Version 1.5.5 was not promulgated until February 2015. At the\nsummary judgment stage, Plaintiffs challenged both versions.\n\f8 GILL V. USDOJ\n\ndid not constitute final agency action pursuant to the APA.\nThe district court denied the Department’s motion.\n\n The parties later cross-moved for summary judgment.\nThe district court granted summary judgment for the\nDepartment, finding that: (1) the Functional Standard is a\npolicy guidance statement exempt from the notice and\ncomment requirement; and (2) the Functional Standard is not\narbitrary and capricious because it addresses data issues\noutside the scope of 28 C.F.R. Part 23. Plaintiffs timely\nappealed.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview de novo a district court’s grant of summary judgment,\nand we may affirm on any ground supported by the record.\nWhite v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).\n\n ANALYSIS\n\nI. Final Agency Action\n\n The APA allows judicial review only of final agency\nactions. 5 U.S.C. § 704; see Ukiah Valley Med. Ctr. v. FTC,\n911 F.2d 261, 266 (9th Cir. 1990). Although it denied the\nDepartment’s motion to dismiss for lack of finality, the\ndistrict court observed in its summary judgment order that\nthere was “good reason to treat the Functional Standard as\nnot constituting a final agency action.” We review de novo\nwhether agency action is final. Havasupai Tribe v.\nProvencio, 906 F.3d 1155, 1161–62 (9th Cir. 2018).\n\n For agency action to be final, it must “mark the\nconsummation of the agency’s decisionmaking process” and\n“must be one by which rights or obligations have been\n\f GILL V. USDOJ 9\n\ndetermined, or from which legal consequences will flow.”\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal\nquotation marks omitted). “We focus on the practical and\nlegal effects of the agency action” and interpret finality in a\n“pragmatic and flexible manner.” Or. Nat. Desert Ass’n v.\nU.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006); see also\nIndus. Customers of Nw. Utils. v. Bonneville Power Admin.,\n408 F.3d 638, 646 (9th Cir. 2005) (considering any “direct\nand immediate effect on the day-to-day operations of the\nparty seeking review,” and if “immediate compliance with\nthe [action’s] terms is expected”). Regardless of an agency’s\ncharacterization, we consider the actual effects of the action\nto determine whether it is final. Columbia Riverkeeper v.\nU.S. Coast Guard, 761 F.3d 1084, 1094–95 (9th Cir. 2014).\n\n The Department does not dispute that the first finality\nrequirement—consummation of the decisionmaking\nprocess—is met. Instead, it concentrates on the second\nBennett prong, contending the Functional Standard “merely\nprovides procedural guidelines for [agencies’] voluntary\nparticipation” and does not impose binding obligations.\nPlaintiffs counter that the Functional Standard has legal\nforce because the Department can revoke an agency’s\neGuardian membership for violating the terms of the\neGuardian User Agreement, which requires compliance with\nthe Standard. Plaintiffs also assert that compliance with the\nFunctional Standard is a practical requirement of the NSI,\nand that this “condition on participation” renders the\nFunctional Standard final. We agree; the Functional\nStandard constitutes final agency action because it has legal\nand practical effects.\n\n The Functional Standard imposes “direct and\nappreciable legal consequences.” Bennett, 520 U.S. at 178.\nIn Oregon Natural Desert, we held the Forest Service’s\n\f10 GILL V. USDOJ\n\nissuance of annual operating instructions (AOIs) to\npermittees grazing livestock on national forest land\nconstituted final agency action under the APA. 465 F.3d at\n979. The AOIs outlined restrictions on the permit holder’s\nright to graze. Id. at 980, 986. If a permittee did not comply\nwith the directives in the AOI, the Forest Service could issue\na notice of non-compliance and impose administrative\nsanctions, such as suspension or cancellation of the permit,\nagainst the permit holder. Id. at 987–88. We held that the\nAOIs had legal consequences because the Forest Service\ncould take enforcement actions against a non-complying\npermittee, imposing “substantial and intricate legal\nobligations.” Id. at 988, 990.\n\n The Functional Standard is not materially\ndistinguishable. To be sure, participation in the NSI remains\nwithin the agencies’ discretion. And, absent that\nparticipation, the Functional Standard does not obligate\nanalysts or agencies to send SAR information or penalize\nthem for sending non-compliant SARs. But, as the\nDepartment conceded below, once an agency decides to\nparticipate, the eGuardian User Agreement permits the\nDepartment to revoke agency membership for violating\nvarious policies, including the Functional Standard. Like the\nsuspension of permits in Oregon Natural Desert, 465 F.3d\nat 988, eGuardian membership revocation is a legal\nconsequence.\n\n The Functional Standard is also final agency action\nbecause of its practical effects. In Havasupai, we held a\nForest Service Mineral Report was a “practical requirement\nto the continued operation” of a mine—and therefore final\nagency action—because the parties “understood that mine\noperations would not resume until” the Mineral Report’s\ndetermination of valid existing rights “was completed.”\n\f GILL V. USDOJ 11\n\n906 F.3d at 1163. An agency action can be final even if its\nlegal or practical effects are contingent on a future event.\nSee Bennett, 520 U.S. at 170 (noting an agency could\n“technically” disregard the issued opinion, but to do so\nwould subject it or its employees to “substantial civil and\ncriminal penalties, including imprisonment”); City of\nFremont v. F.E.R.C., 336 F.3d 910, 914 (9th Cir. 2003)\n(concluding agency orders that attach legal consequences to\nfuture proceedings satisfy the finality analysis).\n\n Similarly, because the eGuardian User Agreement\npermits the Department to revoke participating agencies’\naccess for failure to comply with the Functional Standard,\nonce an agency joined the NSI there was the immediate\nunderstanding that its analysts would conform to the\nFunctional Standard when submitting SARs. Thus, we hold\nthe Functional Standard constitutes final agency action.\n\nII. Notice and Comment Procedure\n\n The APA requires a notice and comment procedure for\nagency “rule making.” 5 5 U.S.C. § 553. However,\n“interpretive rules, general statements of policy, or rules of\nagency organization, procedure, or practice” are exempt\nfrom the notice and comment requirement. 5 U.S.C.\n§ 553(b)(3)(A). The district court found the Functional\nStandard was “fundamentally a policy guidance statement”\nand therefore not subject to the notice and comment\nrequirement. We review de novo the district court’s\ndetermination of the scope of the APA’s notice and comment\n\n\n\n 5\n The APA defines “rule making” as “agency process for\nformulating, amending, or repealing a rule.” 5 U.S.C. § 551(5).\n\f12 GILL V. USDOJ\n\nrequirement. Mada-Luna v. Fitzpatrick, 813 F.2d 1006,\n1011 (9th Cir. 1987).\n\n Legislative rules have the “force of law,” and are subject\nto notice and comment under the APA before becoming\neffective Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d\n1082, 1087–88 (9th Cir. 2003). Policy guidance statements,\non the other hand, “do not have the force and effect of law\nand are not accorded that weight in the adjudicatory\nprocess,” see Shalala v. Guernsey Mem’l Hosp., 514 U.S.\n87, 99 (1995), and need not undergo notice and comment.\n“The critical factor to determine whether a directive\nannouncing a new policy constitutes a legislative rule or a\ngeneral statement of policy ‘is the extent to which the\nchallenged [directive] leaves the agency, or its implementing\nofficial, free to exercise discretion to follow, or not to follow,\nthe [announced] policy in an individual case.’” Colwell v.\nDep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th\nCir. 2009) (second and third alterations in original) (quoting\nMada-Luna, 813 F.2d at 1013). That a policy “provid[es]\ndirection—where once there was none”—does not\nautomatically transform it into a legislative rule. Prof’ls &\nPatients for Customized Care v. Shalala, 56 F.3d 592, 600–\n01 (5th Cir. 1995).\n\n Plaintiffs contend the Functional Standard is a legislative\nrule because it creates a “binding norm” by establishing\nsixteen exclusive categories the agencies must use in\ndefining suspicious activity. The Department responds that\nthe Functional Standard is not a legislative rule because it\nprovides only standardized guidance that does not have any\nlegal effect. Although we “need not accept the agency\ncharacterization at face value,” Hemp Indus., 333 F.3d at\n1087, we agree with the Department that the Functional\n\f GILL V. USDOJ 13\n\nStandard is not a legislative rule because it allows analysts\nto exercise discretion.\n\n SARs undergo a two-part evaluation before being\nincluded in eGuardian. First, an FBI or fusion center analyst\n“reviews” the SAR information against the sixteen pre-\noperational behaviors identified in the Functional Standard,\n“keeping in mind . . . the importance of context, facts, and\ncircumstances.” If the SAR information reflects one or more\nof the pre-operational behaviors, then, based on the “context,\nfacts, and circumstances,” the analyst uses “professional\njudgment” to determine whether the information has a\npotential nexus to terrorism. Only if—in the analyst’s\njudgment—a potential nexus to terrorism exists is the SAR\ndisseminated as an ISE-SAR.\n\n While the Functional Standard employs a combination\nof mandatory and discretionary language, it does not compel\nanalysts or agencies to disseminate SAR information, nor\ndoes it require analysts to create an ISE-SAR when the\ninformation reflects a certain number of behavioral\ncategories. Rather, if the SAR contains at least one of the\ncategorized activities, the analyst must still ascertain\nwhether it has a potential nexus to terrorism. No single\ncategory of behavior or aggregation of categories is\ndeterminative.\n\n The Functional Standard is thus similar to the Food &\nDrug Administration’s policy guide at issue in Professionals\nand Patients for Customized Care. The FDA promulgated a\npolicy utilizing nine factors to help the agency determine\nwhether to initiate an enforcement action against a pharmacy\nengaged in drug manufacturing. 56 F.3d at 593. In holding\nthat the policy did not constitute a legislative rule, the Fifth\nCircuit noted that although the nine factors “assist[ed] the\nFDA in identifying pharmacies engaged in the manufacture\n\f14 GILL V. USDOJ\n\nof drugs,” the “ultimate decision whether to bring an\nenforcement action” remained with the agency. Id. at 601.\nLikewise, the Functional Standard aids agencies in\ndetermining whether an individual is engaged in suspicious\nactivity, but the final decision to disseminate an SAR rests\nin the analyst’s discretion.\n\n This significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ncompels our decision that the Functional Standard is not a\nlegislative rule. Therefore, the Functional Standard was\nexempt from the notice and comment requirement.\n\nIII. Arbitrary and Capricious\n\n Agency action violates the APA if it is arbitrary or\ncapricious. 5 U.S.C. § 706(2)(A). Plaintiffs argue that the\nFunctional Standard is arbitrary and capricious because it is\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23 (Part 23). On summary judgment, the district court\nrejected that argument. We review the district court’s\ndecision de novo. Nat’l Ass’n of Home Builders v. Norton,\n340 F.3d 835, 840–41 (9th Cir. 2003).\n\n Pursuant to Part 23, criminal intelligence systems can\nretain criminal intelligence information “only if there is\nreasonable suspicion that the individual is involved in\ncriminal conduct or activity.” 28 C.F.R. § 23.20(a)\n(emphasis added). Part 23 defines criminal intelligence\ninformation, in pertinent part, as “data which has been\nevaluated to determine that it: (i) is relevant to the\nidentification of and the criminal activity engaged in by an\nindividual who or organization which is reasonably\nsuspected of involvement in criminal activity.” Id.\n§ 23.3(b)(3). The Functional Standard, in contrast, defines\n\f GILL V. USDOJ 15\n\nsuspicious activity as “[o]bserved behavior reasonably\nindicative of pre-operational planning associated with\nterrorism or other criminal activity.” (emphasis added).\nConsequently, some SARs—including those related to\nPlaintiffs—do not reach the reasonable suspicion standard\nthat Part 23 requires for criminal intelligence.\n\n Plaintiffs’ arbitrary and capricious challenge is twofold.\nThey contend that: (1) the Department initially failed to\nconsider the applicability of Part 23; and (2) the rationale\neventually offered for why Part 23 does not apply contradicts\nthe record.\n\n Several principles guide our analysis. An agency must\n“examine the relevant data and articulate a satisfactory\nexplanation for its action including a ‘rational connection\nbetween the facts found and the choice made.’” Motor\nVehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.\nIns. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck\nLines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A\nrule is arbitrary and capricious if the agency has “entirely\nfailed to consider an important aspect of the problem, [or]\noffered an explanation for its decision that runs counter to\nthe evidence before the agency.” Id. Our review of an\nagency decision “is based on the administrative record and\nthe basis for the agency’s decision must come from the\nrecord.” Norton, 340 F.3d at 841. That review is “narrow;”\nwe may not “substitute [our] judgment for that of the\nagency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,\n513 (2009). And, we will “uphold a decision of less than\nideal clarity if the agency’s path may reasonably be\ndiscerned.” Motor Vehicle, 463 U.S. at 43.\n\n First, Plaintiffs challenge the ISE’s July 2010\nexplanation concerning Functional Standard 1.5’s use of the\n“reasonably indicative” standard as a post-hoc\n\f16 GILL V. USDOJ\n\nrationalization. But, Functional Standard 1.5.5, promulgated\nin February 2015, superseded version 1.5. The Executive\nSummary for version 1.5.5 provided a detailed explanation\nfor why SAR information need not comply with Part 23 and\nthe reasonable suspicion standard. Thus, Plaintiffs’\nargument concerning the Department’s 2010 explanation for\nFunctional Standard 1.5 is moot.\n\n Second, Plaintiffs argue that the ISE’s 2015 explanation\nis inconsistent with Functional Standard 1.5.5. The 2015\nexplanation states that SAR information “represents\ninformation about suspicious behavior” and “has a potential\ncriminal nexus.” In contrast, it asserts that criminal\nintelligence “focuses on the investigative stage once a tip or\nlead has been received and on identifying the specific\ncriminal subject(s), the criminal activity in which they are\nengaged, and the evaluation of facts to determine that the\nreasonable suspicion standard has been met.” Succinctly,\naccording to the 2015 explanation, criminal intelligence is “a\nproduct of investigation.”\n\n The Department asserts that its interpretation of Part 23\nis entitled to Auer deference, which requires an agency’s\ninterpretation of its own ambiguous regulation to control\nunless “plainly erroneous or inconsistent with the\nregulation.” Turtle Island Restoration Network v. U.S. Dep’t\nof Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quoting\nAuer v. Robbins, 519 U.S. 452, 461 (1997)). “But Auer\ndeference is warranted only when the language of the\nregulation is ambiguous.” Christensen v. Harris Cty.,\n529 U.S. 576, 588 (2000). If the language of a “regulation\nis unambiguous, we apply the terms as written.”\nChristopher v. SmithKline Beecham Corp., 635 F.3d 383,\n392 (9th Cir. 2011). The Department identifies no ambiguity\nin Part 23, and we find none. Thus, we independently\n\f GILL V. USDOJ 17\n\ndetermine whether the ISE’s decision to exclude the\nFunctional Standard from Part 23’s scope is consistent with\nthe regulation.\n\n Plaintiffs focus on the one sentence in the Department’s\nexplanation of Functional Standard 1.5.5, which states that\nPart 23 “[c]riminal intelligence information is a product of\ninvestigation.” They argue that SARs are also criminal\nintelligence subject to the reasonable suspicion standard of\nPart 23 because an official conducts “initial investigation or\nfact gathering” before creating a SAR. That narrow focus\ndistorts the ISE’s explanation.\n\n As originally conceived in October 2007, SARs involved\n“tips and leads” information, that is, an “uncorroborated\nreport or information that alleges or indicates some form of\npossible criminal activity.” Tips and leads required only\n“mere suspicion,” a lower standard than the reasonable\nsuspicion required for criminal intelligence data. In\nresponse to concerns regarding Functional Standard 1.0,\nversion 1.5 implemented a somewhat stricter standard—\n“reasonably indicative”—albeit one still less demanding\nthan the reasonable suspicion standard. Given the lower\nreasonably indicative standard utilized by the Functional\nStandard, some SARs do not rise to the level of criminal\nintelligence. This lower threshold underscores the purpose\nof ISE-SARs disseminated in accordance with Functional\nStandard 1.5.5: to determine whether to engage in “follow-\nup information gathering” about potential terrorist activity,\nnot necessarily to determine whether a crime has occurred.\n\n The distinction between criminal intelligence and SAR\ninformation is admittedly not always precise. The ISE\nProgram Manager early on recognized the potential for\nSARs to contain criminal intelligence subject to Part 23.\nThus, the ISE’s Initial Privacy and Civil Liberties Analysis\n\f18 GILL V. USDOJ\n\nof September 2008 stated, “agencies should clearly articulate\nwhen 28 C.F.R. Part 23 should be applied . . . . ISE-SAR\ninformation . . . may be subject to the requirements of 28\nC.F.R. Part 23.” Further, an investigating officer “gathers\nadditional facts through personal observations, interviews,\nand other investigative activities before creating a SAR,\nsuggesting that the “product of investigation” phrase is not\ndispositive of whether SAR information comes within the\nambit of Part 23.\n\n “We will . . . uphold a decision of less than ideal clarity\nif the agency’s path may reasonably be discerned.” Motor\nVehicle, 463 U.S. at 43. From the outset, the ISE has\nconsistently pronounced that an ISE-SAR need not meet the\nreasonable suspicion standard in order to expand the base of\ninformation gathered. The 2015 explanation, published with\nFunctional Standard 1.5.5, also makes clear that the\ngovernment intentionally seeks more than reports showing a\nreasonable suspicion that terrorism-related crimes have\noccurred. Considering the entirety of the 2015 rationale and\nthe historical explanations before us, we find the\nDepartment’s decision to exclude SARs from Part 23 is not\ncontrary to the record, and is consistent with the stated\nobjectives of the NSI. Accordingly, we hold that the\nFunctional Standard was not arbitrary and capricious.\n\n CONCLUSION\n\n The Functional Standard endeavors to standardize\nterrorism-related information sharing nationwide. Although\nthe Functional Standard constituted final agency action, it\nwas not a legislative rule because it requires significant\nanalyst discretion. It therefore was exempt from the notice\nand comment requirement. And, the Standard was not\narbitrary and capricious because the ISE’s 2015 explanation\ndistinguishing Part 23 information and SARs is consistent\n\f GILL V. USDOJ 19\n\nwith the ISE’s objectives. We affirm the judgment of the\ndistrict court.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362710/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	ANDREW D HURWITZ	RICHARD K EATON	1		{"MILAN D SMITH JR": ", Circuit", "ANDREW D HURWITZ": ", Circuit", "RICHARD K EATON": ","}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585457/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Wiley Gill v. DOJ\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nWILEY GILL; JAMES PRIGOFF; No. 17-16107\nTARIQ RAZAK; KHALED IBRAHIM;\nAARON CONKLIN, D.C. No.\n Plaintiffs-Appellants, 3:14-cv-03120-RS\n\n v.\n OPINION\nUNITED STATES DEPARTMENT OF\nJUSTICE; MATTHEW WHITAKER,\nActing Attorney General;\nPROGRAM MANAGER -\nINFORMATION SHARING\nENVIRONMENT; THE OFFICE OF\nTHE PROGRAM MANAGER OF THE\nINFORMATION SHARING\nENVIRONMENT,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Richard Seeborg, District Judge, Presiding\n\n Argued and Submitted October 18, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\f2 GILL V. USDOJ\n\n Before: MILAN D. SMITH, JR. and ANDREW D.\n HURWITZ, Circuit Judges, and RICHARD K. EATON, \n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n SUMMARY \n\n\n Administrative Procedure Act\n\n The panel affirmed the district court’s summary\njudgment in favor of federal defendants in an action under\nthe Administrative Procedure Act (“APA”) challenging the\nFunctional Standard regarding the sharing of terrorism-\nrelated information.\n\n In the wake of 9/11, the federal government sought to\nstandardize the sharing of terrorism-related information\nthrough the adoption of a Functional Standard. Plaintiffs are\nUnited States citizens who are the subjects of a Suspicious\nActivity Report (SAR) or Information Sharing Environment\n(ISE)-SAR, none of whom have been charged with a crime.\n\n The panel held that the Functional Standard constituted\nfinal agency action because it had legal and practical effects.\n\n\n\n \n Richard K. Eaton, Judge of the United States Court of International\nTrade, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILL V. USDOJ 3\n\n The panel held that the Functional Standard was exempt\nfrom the APA’s notice and comment requirement because\nthe significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ndemonstrated that the Functional Standard was not a\nlegislative rule. Legislative rules have the force of law, and\nare subject to notice and comment under the APA before\nbecoming effective.\n\n Plaintiffs argued that the Functional Standard was\narbitrary and capricious under the APA because it was\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23. The panel held that the Department of Justice’s\ndecision to exclude SARs from Part 23 was not contrary to\nthe record, and was consistent with the stated objectives of\nthe Nationwide Suspicious Activity Reporting Initiative.\nThe panel concluded that the Functional Standard was not\narbitrary and capricious under the APA.\n\n\n COUNSEL\n\nLinda Lye (argued) and Julia Harumi, American Civil\nLiberties Union Foundation of Northern California Inc., San\nFrancisco, California; Michael James Ableson and Stephen\nScotch-Marmo, Morgan, Lewis & Bockius LLP, New York,\nNew York; Christina Sinha, Asian Americans Advancing\nJustice—Asian Law Caucus, San Francisco, California;\nHugh Handeyside, American Civil Liberties Union\nFoundation, New York, New York; Mitra Ebadolahi,\nAmerican Civil Liberties Union Foundation of San Diego\nand Imperial Counties, San Diego, California; Jeffrey S.\nRaskin, Morgan Lewis & Bockius LLP, San Francisco,\nCalifornia; Peter Bibring, American Civil Liberties Union\n\f4 GILL V. USDOJ\n\nFoundation of Southern California, Los Angeles, California;\nfor Plaintiffs-Appellants.\n\nDaniel Aguilar (argued) and H. Thomas Byron III, Appellate\nStaff; Alex G. Tse, Acting United States Attorney; Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In the wake of 9/11, law enforcement agencies at the\nfederal, state, and local levels found that they were unable to\ncommunicate effectively about potential threats to our\nnational security. In response, the federal government\nsought to standardize the sharing of terrorism-related\ninformation through the adoption of a “Functional\nStandard.” Aaron Conklin, Wiley Gill, Khaled Ibrahim,\nJames Prigoff, and Tariq Razak (collectively, Plaintiffs)\nchallenged the Functional Standard under the\nAdministrative Procedure Act (APA). 1 The district court\ngranted summary judgment in favor of the federal\ndefendants.\n\n We affirm. Although the Functional Standard\nconstitutes final agency action, it was not required to\nundergo the APA notice and comment procedure, nor was it\narbitrary and capricious.\n\n\n 1\n Plaintiffs raised only an APA challenge and do not contend that\nthe Functional Standard is unconstitutional or has been applied to them\nin an unconstitutional manner.\n\f GILL V. USDOJ 5\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n In October 2007, President George W. Bush issued a\nNational Strategy for Information Sharing concerning\nterrorism-related information. The Strategy created fusion\ncenters that would ensure Suspicious Activity Reports\n(SARs) were “disseminated to and evaluated by appropriate\ngovernment authorities,” and identify requirements to\nsupport a “unified process for reporting, tracking, and\naccessing” SARs. The nationwide effort to standardize this\ninformation sharing was called the Nationwide Suspicious\nActivity Reporting Initiative (NSI).\n\n To “govern[] how terrorism information is acquired,\naccessed, shared, and used,” the Program Manager for the\nInformation Sharing Environment (ISE) has issued three\nFunctional Standards since the inception of the NSI, each\nsuperseding the previous one: Functional Standard 1.0\n(issued January 2008), Functional Standard 1.5 (issued May\n2009), and Functional Standard 1.5.5 (issued February\n2015). 2 The current Functional Standard 1.5.5 focuses\n“exclusively on terrorism-related information.”\n\n\n 2\n The Program Manager sought input from various civil liberties\ngroups throughout the process of refining the Functional Standards.\nAfter promulgating Standard 1.0, the Program Manager hosted a\nconference with advocates from the American Civil Liberties Union\n(ACLU) and other privacy and civil liberties groups. The ACLU noted\nits concerns with the overbroad behavioral categories and the Standard’s\ndefinition of a suspicious activity, suggesting a “reasonably indicative”\nstandard. The ACLU also recommended that certain information should\nnot be reported absent reasonable suspicion of criminality.\n\f6 GILL V. USDOJ\n\n The Functional Standard defines suspicious activity as\n“[o]bserved behavior reasonably indicative of pre-\noperational planning associated with terrorism or other\ncriminal activity.” After receiving a report of suspicious\nactivity, an officer creates a SAR. The SAR then undergoes\na two-part evaluation process. An analyst determines\nwhether the SAR meets certain behavioral criteria and has a\npotential nexus to terrorism. 3 If the analyst concludes that it\ndoes, the SAR becomes an ISE-SAR, and is uploaded to the\neGuardian repository, where it is available to all NSI\nparticipants. The ISE-SAR is also input into the Federal\nBureau of Investigation (FBI) classified system and sent to\nthe Department of Homeland Security Office of Intelligence\nAnalysis.\n\n Plaintiffs are United States citizens who are the subjects\nof a SAR or ISE-SAR, none of whom has been charged with\na crime. The ISE-SAR on Gill notes his potential access to\na “flight simulator type of game,” his conversion to Islam,\nand his “pious demeanor.” The FBI visited Gill’s sister and\nquestioned her about Gill’s religious beliefs. Another SAR\ndescribes Razak as a male of believed Middle Eastern\ndescent who “meticulously stud[ied] the entry/exit points”\n\n\n After the ISE issued Functional Standard 1.5, the Program Manager\nre-engaged with the ACLU to obtain their feedback on a draft privacy\nand civil liberties report. The ACLU again recommended that\ninformation meet the reasonably indicative standard before\ndissemination. In May 2013, the ISE held another conference with civil\nliberties groups, including the ACLU, to discuss Functional Standard\n1.5.5.\n\n 3\n The behavioral categories include both defined criminal activity,\nsuch as “Breach/Attempted Intrusion,” “Misrepresentation,” and\n“Cyberattack,” along with other activity, such as “Photography,”\n“Acquisition of Expertise,” and “Weapons Collection/Discovery.”\n\f GILL V. USDOJ 7\n\nof a train station. After the SAR was uploaded to eGuardian,\nthe FBI questioned Razak. The SAR concerning Ibrahim\nnotes his attempt to purchase “a large amount of computers.”\nTwo reports concerning Ibrahim were uploaded to\neGuardian.\n\n Private guards prevented Prigoff, a professional\nphotographer, from taking photographs of a work of public\nart near Boston, an incident resulting in the creation of\nmultiple SARs. The FBI then visited Prigoff’s home and\nquestioned a neighbor about him. In northern California,\nprivate security stopped Conklin, an amateur photographer,\nfrom photographing oil refineries, and during the subsequent\nquestioning, the sheriff’s deputies told him he would be\nplaced on an “NSA watch list.”\n\nII. Procedural Background\n\n In 2014, Plaintiffs sued the Attorney General, the\nDepartment of Justice, and the ISE Program Manager\n(collectively, the Department). The complaint asserted two\nAPA challenges to the Functional Standard, contending that:\n(1) the promulgation of the Functional Standard without\nnotice and comment was unlawful; and (2) the Standard was\narbitrary and capricious because it did not comply with the\n“reasonable suspicion” standard in 28 C.F.R. Part 23 for the\ndissemination of criminal intelligence information. 4\n\n The Department moved to dismiss, arguing that\nPlaintiffs lacked standing, and that the Functional Standard\n\n\n\n 4\n At the onset of this lawsuit, only Functional Standard 1.5 was at\nissue. Version 1.5.5 was not promulgated until February 2015. At the\nsummary judgment stage, Plaintiffs challenged both versions.\n\f8 GILL V. USDOJ\n\ndid not constitute final agency action pursuant to the APA.\nThe district court denied the Department’s motion.\n\n The parties later cross-moved for summary judgment.\nThe district court granted summary judgment for the\nDepartment, finding that: (1) the Functional Standard is a\npolicy guidance statement exempt from the notice and\ncomment requirement; and (2) the Functional Standard is not\narbitrary and capricious because it addresses data issues\noutside the scope of 28 C.F.R. Part 23. Plaintiffs timely\nappealed.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview de novo a district court’s grant of summary judgment,\nand we may affirm on any ground supported by the record.\nWhite v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).\n\n ANALYSIS\n\nI. Final Agency Action\n\n The APA allows judicial review only of final agency\nactions. 5 U.S.C. § 704; see Ukiah Valley Med. Ctr. v. FTC,\n911 F.2d 261, 266 (9th Cir. 1990). Although it denied the\nDepartment’s motion to dismiss for lack of finality, the\ndistrict court observed in its summary judgment order that\nthere was “good reason to treat the Functional Standard as\nnot constituting a final agency action.” We review de novo\nwhether agency action is final. Havasupai Tribe v.\nProvencio, 906 F.3d 1155, 1161–62 (9th Cir. 2018).\n\n For agency action to be final, it must “mark the\nconsummation of the agency’s decisionmaking process” and\n“must be one by which rights or obligations have been\n\f GILL V. USDOJ 9\n\ndetermined, or from which legal consequences will flow.”\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal\nquotation marks omitted). “We focus on the practical and\nlegal effects of the agency action” and interpret finality in a\n“pragmatic and flexible manner.” Or. Nat. Desert Ass’n v.\nU.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006); see also\nIndus. Customers of Nw. Utils. v. Bonneville Power Admin.,\n408 F.3d 638, 646 (9th Cir. 2005) (considering any “direct\nand immediate effect on the day-to-day operations of the\nparty seeking review,” and if “immediate compliance with\nthe [action’s] terms is expected”). Regardless of an agency’s\ncharacterization, we consider the actual effects of the action\nto determine whether it is final. Columbia Riverkeeper v.\nU.S. Coast Guard, 761 F.3d 1084, 1094–95 (9th Cir. 2014).\n\n The Department does not dispute that the first finality\nrequirement—consummation of the decisionmaking\nprocess—is met. Instead, it concentrates on the second\nBennett prong, contending the Functional Standard “merely\nprovides procedural guidelines for [agencies’] voluntary\nparticipation” and does not impose binding obligations.\nPlaintiffs counter that the Functional Standard has legal\nforce because the Department can revoke an agency’s\neGuardian membership for violating the terms of the\neGuardian User Agreement, which requires compliance with\nthe Standard. Plaintiffs also assert that compliance with the\nFunctional Standard is a practical requirement of the NSI,\nand that this “condition on participation” renders the\nFunctional Standard final. We agree; the Functional\nStandard constitutes final agency action because it has legal\nand practical effects.\n\n The Functional Standard imposes “direct and\nappreciable legal consequences.” Bennett, 520 U.S. at 178.\nIn Oregon Natural Desert, we held the Forest Service’s\n\f10 GILL V. USDOJ\n\nissuance of annual operating instructions (AOIs) to\npermittees grazing livestock on national forest land\nconstituted final agency action under the APA. 465 F.3d at\n979. The AOIs outlined restrictions on the permit holder’s\nright to graze. Id. at 980, 986. If a permittee did not comply\nwith the directives in the AOI, the Forest Service could issue\na notice of non-compliance and impose administrative\nsanctions, such as suspension or cancellation of the permit,\nagainst the permit holder. Id. at 987–88. We held that the\nAOIs had legal consequences because the Forest Service\ncould take enforcement actions against a non-complying\npermittee, imposing “substantial and intricate legal\nobligations.” Id. at 988, 990.\n\n The Functional Standard is not materially\ndistinguishable. To be sure, participation in the NSI remains\nwithin the agencies’ discretion. And, absent that\nparticipation, the Functional Standard does not obligate\nanalysts or agencies to send SAR information or penalize\nthem for sending non-compliant SARs. But, as the\nDepartment conceded below, once an agency decides to\nparticipate, the eGuardian User Agreement permits the\nDepartment to revoke agency membership for violating\nvarious policies, including the Functional Standard. Like the\nsuspension of permits in Oregon Natural Desert, 465 F.3d\nat 988, eGuardian membership revocation is a legal\nconsequence.\n\n The Functional Standard is also final agency action\nbecause of its practical effects. In Havasupai, we held a\nForest Service Mineral Report was a “practical requirement\nto the continued operation” of a mine—and therefore final\nagency action—because the parties “understood that mine\noperations would not resume until” the Mineral Report’s\ndetermination of valid existing rights “was completed.”\n\f GILL V. USDOJ 11\n\n906 F.3d at 1163. An agency action can be final even if its\nlegal or practical effects are contingent on a future event.\nSee Bennett, 520 U.S. at 170 (noting an agency could\n“technically” disregard the issued opinion, but to do so\nwould subject it or its employees to “substantial civil and\ncriminal penalties, including imprisonment”); City of\nFremont v. F.E.R.C., 336 F.3d 910, 914 (9th Cir. 2003)\n(concluding agency orders that attach legal consequences to\nfuture proceedings satisfy the finality analysis).\n\n Similarly, because the eGuardian User Agreement\npermits the Department to revoke participating agencies’\naccess for failure to comply with the Functional Standard,\nonce an agency joined the NSI there was the immediate\nunderstanding that its analysts would conform to the\nFunctional Standard when submitting SARs. Thus, we hold\nthe Functional Standard constitutes final agency action.\n\nII. Notice and Comment Procedure\n\n The APA requires a notice and comment procedure for\nagency “rule making.” 5 5 U.S.C. § 553. However,\n“interpretive rules, general statements of policy, or rules of\nagency organization, procedure, or practice” are exempt\nfrom the notice and comment requirement. 5 U.S.C.\n§ 553(b)(3)(A). The district court found the Functional\nStandard was “fundamentally a policy guidance statement”\nand therefore not subject to the notice and comment\nrequirement. We review de novo the district court’s\ndetermination of the scope of the APA’s notice and comment\n\n\n\n 5\n The APA defines “rule making” as “agency process for\nformulating, amending, or repealing a rule.” 5 U.S.C. § 551(5).\n\f12 GILL V. USDOJ\n\nrequirement. Mada-Luna v. Fitzpatrick, 813 F.2d 1006,\n1011 (9th Cir. 1987).\n\n Legislative rules have the “force of law,” and are subject\nto notice and comment under the APA before becoming\neffective Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d\n1082, 1087–88 (9th Cir. 2003). Policy guidance statements,\non the other hand, “do not have the force and effect of law\nand are not accorded that weight in the adjudicatory\nprocess,” see Shalala v. Guernsey Mem’l Hosp., 514 U.S.\n87, 99 (1995), and need not undergo notice and comment.\n“The critical factor to determine whether a directive\nannouncing a new policy constitutes a legislative rule or a\ngeneral statement of policy ‘is the extent to which the\nchallenged [directive] leaves the agency, or its implementing\nofficial, free to exercise discretion to follow, or not to follow,\nthe [announced] policy in an individual case.’” Colwell v.\nDep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th\nCir. 2009) (second and third alterations in original) (quoting\nMada-Luna, 813 F.2d at 1013). That a policy “provid[es]\ndirection—where once there was none”—does not\nautomatically transform it into a legislative rule. Prof’ls &\nPatients for Customized Care v. Shalala, 56 F.3d 592, 600–\n01 (5th Cir. 1995).\n\n Plaintiffs contend the Functional Standard is a legislative\nrule because it creates a “binding norm” by establishing\nsixteen exclusive categories the agencies must use in\ndefining suspicious activity. The Department responds that\nthe Functional Standard is not a legislative rule because it\nprovides only standardized guidance that does not have any\nlegal effect. Although we “need not accept the agency\ncharacterization at face value,” Hemp Indus., 333 F.3d at\n1087, we agree with the Department that the Functional\n\f GILL V. USDOJ 13\n\nStandard is not a legislative rule because it allows analysts\nto exercise discretion.\n\n SARs undergo a two-part evaluation before being\nincluded in eGuardian. First, an FBI or fusion center analyst\n“reviews” the SAR information against the sixteen pre-\noperational behaviors identified in the Functional Standard,\n“keeping in mind . . . the importance of context, facts, and\ncircumstances.” If the SAR information reflects one or more\nof the pre-operational behaviors, then, based on the “context,\nfacts, and circumstances,” the analyst uses “professional\njudgment” to determine whether the information has a\npotential nexus to terrorism. Only if—in the analyst’s\njudgment—a potential nexus to terrorism exists is the SAR\ndisseminated as an ISE-SAR.\n\n While the Functional Standard employs a combination\nof mandatory and discretionary language, it does not compel\nanalysts or agencies to disseminate SAR information, nor\ndoes it require analysts to create an ISE-SAR when the\ninformation reflects a certain number of behavioral\ncategories. Rather, if the SAR contains at least one of the\ncategorized activities, the analyst must still ascertain\nwhether it has a potential nexus to terrorism. No single\ncategory of behavior or aggregation of categories is\ndeterminative.\n\n The Functional Standard is thus similar to the Food &\nDrug Administration’s policy guide at issue in Professionals\nand Patients for Customized Care. The FDA promulgated a\npolicy utilizing nine factors to help the agency determine\nwhether to initiate an enforcement action against a pharmacy\nengaged in drug manufacturing. 56 F.3d at 593. In holding\nthat the policy did not constitute a legislative rule, the Fifth\nCircuit noted that although the nine factors “assist[ed] the\nFDA in identifying pharmacies engaged in the manufacture\n\f14 GILL V. USDOJ\n\nof drugs,” the “ultimate decision whether to bring an\nenforcement action” remained with the agency. Id. at 601.\nLikewise, the Functional Standard aids agencies in\ndetermining whether an individual is engaged in suspicious\nactivity, but the final decision to disseminate an SAR rests\nin the analyst’s discretion.\n\n This significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ncompels our decision that the Functional Standard is not a\nlegislative rule. Therefore, the Functional Standard was\nexempt from the notice and comment requirement.\n\nIII. Arbitrary and Capricious\n\n Agency action violates the APA if it is arbitrary or\ncapricious. 5 U.S.C. § 706(2)(A). Plaintiffs argue that the\nFunctional Standard is arbitrary and capricious because it is\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23 (Part 23). On summary judgment, the district court\nrejected that argument. We review the district court’s\ndecision de novo. Nat’l Ass’n of Home Builders v. Norton,\n340 F.3d 835, 840–41 (9th Cir. 2003).\n\n Pursuant to Part 23, criminal intelligence systems can\nretain criminal intelligence information “only if there is\nreasonable suspicion that the individual is involved in\ncriminal conduct or activity.” 28 C.F.R. § 23.20(a)\n(emphasis added). Part 23 defines criminal intelligence\ninformation, in pertinent part, as “data which has been\nevaluated to determine that it: (i) is relevant to the\nidentification of and the criminal activity engaged in by an\nindividual who or organization which is reasonably\nsuspected of involvement in criminal activity.” Id.\n§ 23.3(b)(3). The Functional Standard, in contrast, defines\n\f GILL V. USDOJ 15\n\nsuspicious activity as “[o]bserved behavior reasonably\nindicative of pre-operational planning associated with\nterrorism or other criminal activity.” (emphasis added).\nConsequently, some SARs—including those related to\nPlaintiffs—do not reach the reasonable suspicion standard\nthat Part 23 requires for criminal intelligence.\n\n Plaintiffs’ arbitrary and capricious challenge is twofold.\nThey contend that: (1) the Department initially failed to\nconsider the applicability of Part 23; and (2) the rationale\neventually offered for why Part 23 does not apply contradicts\nthe record.\n\n Several principles guide our analysis. An agency must\n“examine the relevant data and articulate a satisfactory\nexplanation for its action including a ‘rational connection\nbetween the facts found and the choice made.’” Motor\nVehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.\nIns. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck\nLines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A\nrule is arbitrary and capricious if the agency has “entirely\nfailed to consider an important aspect of the problem, [or]\noffered an explanation for its decision that runs counter to\nthe evidence before the agency.” Id. Our review of an\nagency decision “is based on the administrative record and\nthe basis for the agency’s decision must come from the\nrecord.” Norton, 340 F.3d at 841. That review is “narrow;”\nwe may not “substitute [our] judgment for that of the\nagency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,\n513 (2009). And, we will “uphold a decision of less than\nideal clarity if the agency’s path may reasonably be\ndiscerned.” Motor Vehicle, 463 U.S. at 43.\n\n First, Plaintiffs challenge the ISE’s July 2010\nexplanation concerning Functional Standard 1.5’s use of the\n“reasonably indicative” standard as a post-hoc\n\f16 GILL V. USDOJ\n\nrationalization. But, Functional Standard 1.5.5, promulgated\nin February 2015, superseded version 1.5. The Executive\nSummary for version 1.5.5 provided a detailed explanation\nfor why SAR information need not comply with Part 23 and\nthe reasonable suspicion standard. Thus, Plaintiffs’\nargument concerning the Department’s 2010 explanation for\nFunctional Standard 1.5 is moot.\n\n Second, Plaintiffs argue that the ISE’s 2015 explanation\nis inconsistent with Functional Standard 1.5.5. The 2015\nexplanation states that SAR information “represents\ninformation about suspicious behavior” and “has a potential\ncriminal nexus.” In contrast, it asserts that criminal\nintelligence “focuses on the investigative stage once a tip or\nlead has been received and on identifying the specific\ncriminal subject(s), the criminal activity in which they are\nengaged, and the evaluation of facts to determine that the\nreasonable suspicion standard has been met.” Succinctly,\naccording to the 2015 explanation, criminal intelligence is “a\nproduct of investigation.”\n\n The Department asserts that its interpretation of Part 23\nis entitled to Auer deference, which requires an agency’s\ninterpretation of its own ambiguous regulation to control\nunless “plainly erroneous or inconsistent with the\nregulation.” Turtle Island Restoration Network v. U.S. Dep’t\nof Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quoting\nAuer v. Robbins, 519 U.S. 452, 461 (1997)). “But Auer\ndeference is warranted only when the language of the\nregulation is ambiguous.” Christensen v. Harris Cty.,\n529 U.S. 576, 588 (2000). If the language of a “regulation\nis unambiguous, we apply the terms as written.”\nChristopher v. SmithKline Beecham Corp., 635 F.3d 383,\n392 (9th Cir. 2011). The Department identifies no ambiguity\nin Part 23, and we find none. Thus, we independently\n\f GILL V. USDOJ 17\n\ndetermine whether the ISE’s decision to exclude the\nFunctional Standard from Part 23’s scope is consistent with\nthe regulation.\n\n Plaintiffs focus on the one sentence in the Department’s\nexplanation of Functional Standard 1.5.5, which states that\nPart 23 “[c]riminal intelligence information is a product of\ninvestigation.” They argue that SARs are also criminal\nintelligence subject to the reasonable suspicion standard of\nPart 23 because an official conducts “initial investigation or\nfact gathering” before creating a SAR. That narrow focus\ndistorts the ISE’s explanation.\n\n As originally conceived in October 2007, SARs involved\n“tips and leads” information, that is, an “uncorroborated\nreport or information that alleges or indicates some form of\npossible criminal activity.” Tips and leads required only\n“mere suspicion,” a lower standard than the reasonable\nsuspicion required for criminal intelligence data. In\nresponse to concerns regarding Functional Standard 1.0,\nversion 1.5 implemented a somewhat stricter standard—\n“reasonably indicative”—albeit one still less demanding\nthan the reasonable suspicion standard. Given the lower\nreasonably indicative standard utilized by the Functional\nStandard, some SARs do not rise to the level of criminal\nintelligence. This lower threshold underscores the purpose\nof ISE-SARs disseminated in accordance with Functional\nStandard 1.5.5: to determine whether to engage in “follow-\nup information gathering” about potential terrorist activity,\nnot necessarily to determine whether a crime has occurred.\n\n The distinction between criminal intelligence and SAR\ninformation is admittedly not always precise. The ISE\nProgram Manager early on recognized the potential for\nSARs to contain criminal intelligence subject to Part 23.\nThus, the ISE’s Initial Privacy and Civil Liberties Analysis\n\f18 GILL V. USDOJ\n\nof September 2008 stated, “agencies should clearly articulate\nwhen 28 C.F.R. Part 23 should be applied . . . . ISE-SAR\ninformation . . . may be subject to the requirements of 28\nC.F.R. Part 23.” Further, an investigating officer “gathers\nadditional facts through personal observations, interviews,\nand other investigative activities before creating a SAR,\nsuggesting that the “product of investigation” phrase is not\ndispositive of whether SAR information comes within the\nambit of Part 23.\n\n “We will . . . uphold a decision of less than ideal clarity\nif the agency’s path may reasonably be discerned.” Motor\nVehicle, 463 U.S. at 43. From the outset, the ISE has\nconsistently pronounced that an ISE-SAR need not meet the\nreasonable suspicion standard in order to expand the base of\ninformation gathered. The 2015 explanation, published with\nFunctional Standard 1.5.5, also makes clear that the\ngovernment intentionally seeks more than reports showing a\nreasonable suspicion that terrorism-related crimes have\noccurred. Considering the entirety of the 2015 rationale and\nthe historical explanations before us, we find the\nDepartment’s decision to exclude SARs from Part 23 is not\ncontrary to the record, and is consistent with the stated\nobjectives of the NSI. Accordingly, we hold that the\nFunctional Standard was not arbitrary and capricious.\n\n CONCLUSION\n\n The Functional Standard endeavors to standardize\nterrorism-related information sharing nationwide. Although\nthe Functional Standard constituted final agency action, it\nwas not a legislative rule because it requires significant\nanalyst discretion. It therefore was exempt from the notice\nand comment requirement. And, the Standard was not\narbitrary and capricious because the ISE’s 2015 explanation\ndistinguishing Part 23 information and SARs is consistent\n\f GILL V. USDOJ 19\n\nwith the ISE’s objectives. We affirm the judgment of the\ndistrict court.\n\n AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,585,458		Desiree Gilberg v. Cal. Check Cashing Stores, LLC	2019-01-29	17-16263	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Raymond C. Fisher and Milan D. Smith, Jr., Circuit Judges, and Lawrence L. Piersol, District Judge.", "parties": "", "opinions": [{"author": "FISHER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n DESIREE GILBERG, on behalf of No. 17-16263\n herself, all others similarly situated,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02309-\n v. JAM-AC\n\n CALIFORNIA CHECK CASHING\n STORES, LLC, a California OPINION\n corporation; CHECKSMART\n FINANCIAL, LLC, a Delaware limited\n liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n John A. Mendez, District Judge, Presiding\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\n Before: Raymond C. Fisher and Milan D. Smith, Jr.,\n Circuit Judges, and Lawrence L. Piersol, District Judge. \n\n Opinion by Judge Fisher\n\n \n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 GILBERG V. CAL. CHECK CASHING STORES\n\n SUMMARY \n\n\n Fair Credit Reporting Act\n\n The panel affirmed in part and vacated in part the district\ncourt’s summary judgment in favor of defendants in an\naction under the Fair Credit Reporting Act, and remanded\nfor further proceedings.\n\n FCRA requires employers who obtain a consumer report\non a job applicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous” requirement) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument” requirement) before procuring the report.\n\n The panel held that a prospective employer violates\nFCRA’s “standalone document” requirement by including\nextraneous information relating to various state disclosure\nrequirements in that disclosure. The panel concluded that\ndefendant’s form violated this requirement, as well as the\n“standalone document” requirement of California’s\nInvestigative Consumer Reporting Agencies Act. The panel\nfurther held that defendant’s disclosure did not satisfy\nFCRA’s and ICRAA’s “clear and conspicuous”\nrequirements because, although the disclosure was\nconspicuous, it was not clear.\n\n The panel addressed additional issues in a concurrently-\nfiled memorandum disposition.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILBERG V. CAL. CHECK CASHING STORES 3\n\n COUNSEL\n\nH. Scott W. Leviant (argued), Thomas Segal, and Shaun\nSetareh, Setareh Law Group, Beverly Hills, California, for\nPlaintiff-Appellant.\n\nTimothy W. Snider (argued) and Chrystal S. Chase, Stoel\nRives LLP, Portland, Oregon; Bryan L. Hawkins, Stoel\nRives LLP, Sacramento, California; for Defendants-\nAppellees.\n\n\n OPINION\n\nFISHER, Circuit Judge:\n\n The widespread use of credit reports and background\nchecks led Congress to pass the Fair Credit Reporting Act\n(FCRA) to protect consumers’ privacy rights. FCRA\nrequires employers who obtain a consumer report on a job\napplicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous requirement”) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument requirement”) before procuring the report.\n15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to\ndecide two questions: (1) whether a prospective employer\nmay satisfy FCRA’s standalone document requirement by\nproviding job applicants with a disclosure containing\nextraneous information in the form of various state\ndisclosure requirements, and (2) whether the specific\ndisclosure provided by the employer in this case satisfied the\nclear and conspicuous requirement.\n\f4 GILBERG V. CAL. CHECK CASHING STORES\n\n We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.\n2017), that FCRA contains “clear statutory language that the\ndisclosure document must consist ‘solely’ of the disclosure.”\nId. at 496. Consistent with Syed, we now hold that a\nprospective employer violates FCRA’s standalone document\nrequirement by including extraneous information relating to\nvarious state disclosure requirements in that disclosure. We\nalso hold that the disclosure at issue here is conspicuous but\nnot clear. Accordingly, we affirm in part, vacate in part and\nremand. 1\n\nI. Background\n\n In the process of applying for employment with\nCheckSmart Financial, LLC, Desiree Gilberg completed a\nthree-page form containing an employment application, a\nmath screening and an employment history verification.\nTwo weeks later, Gilberg signed a separate form, entitled\n“Disclosure Regarding Background Investigation,” that is\nthe subject of this litigation. A copy of the disclosure is\nappended to this opinion. The form appears to have been\nprinted in Arial Narrow, size 8 font.\n\n Because the legal sufficiency of the FCRA disclosure\nprovided to Gilberg is in question, we include the full text of\nthe disclosure:\n\n\n\n\n 1\n We address Gilberg’s remaining contentions in a concurrently filed\nmemorandum disposition.\n\f GILBERG V. CAL. CHECK CASHING STORES 5\n\n DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n\n DISCLOSURE AND\n ACKNOWLEDGMENT\n\n [IMPORTANT – PLEASE READ\n CAREFULLY BEFORE SIGNING\n ACKNOWLEDGMENT]\n\nCheckSmart Financial, LLC may obtain\ninformation about you from a consumer\nreporting agency for employment purposes.\nThus, you may be the subject of a ‘consumer\nreport’ and/or an ‘investigative consumer\nreport’ which may include information about\nyour character, general reputation, personal\ncharacteristics, and/or mode of living, and\nwhich can involve personal interviews with\nsources such as your neighbors, friends, or\nassociates. These reports may include\nemployment history and reference checks,\ncriminal and civil litigation history\ninformation, motor vehicle records (‘driving\nrecords’), sex offender status, credit reports,\neducation verification, professional\nlicensure, drug testing, Social Security\nVerification, and information concerning\nworkers’ compensation claims (only once a\nconditional offer of employment has been\nmade). Credit history will only be requested\nwhere such information is substantially\nrelated to the duties and responsibilities of the\nposition for which you are applying. You\nhave the right, upon written request made\n\f6 GILBERG V. CAL. CHECK CASHING STORES\n\n within a reasonable time after receipt of this\n notice, to request whether a consumer report\n has been run about you, and the nature and\n scope of any investigative consumer report,\n and request a copy of your report. Please be\n advised that the nature and scope of the most\n common form of investigative consumer\n report obtained with regard to applicants for\n employment is an investigation into your\n education and/or employment history\n conducted by Employment Screening\n Services, 2500 Southlake Park, Birmingham,\n AL 35244, toll-free 866.859.0143,\n www.es2.com or another outside\n organization. The scope of this notice and\n authorization is all-encompassing; however,\n allowing CheckSmart Financial, LLC to\n obtain from any outside organization all\n manner of consumer reports and investigative\n consumer reports now and, if you are hired,\n throughout the course of your employment to\n the extent permitted by law. As a result, you\n should carefully consider whether to exercise\n your right to request disclosure of the nature\n and scope of any investigative consumer\n report.\n\n New York and Maine applicants or\n employees only: You have the right to inspect\n and receive a copy of any investigative\n consumer report requested by CheckSmart\n Financial, LLC by contacting the consumer\n reporting agency identified above directly.\n You may also contact the Company to\n request the name, address and telephone\n\f GILBERG V. CAL. CHECK CASHING STORES 7\n\nnumber of the nearest unit of the consumer\nreporting agency designated to handle\ninquiries, which the Company shall provide\nwithin 5 days.\n\nNew York applicants or employees only:\nUpon request, you will be informed whether\nor not a consumer report was requested by\nCheckSmart Financial, LLC, and if such\nreport was requested, informed of the name\nand address of the consumer reporting\nagency that furnished the report.\n\nOregon applicants or employees only:\nInformation describing your rights under\nfederal and Oregon law regarding consumer\nidentity theft protection, the storage and\ndisposal of your credit information, and\nremedies available should you suspect or find\nthat the Company has not maintained secured\nrecords is available to you upon request.\n\nWashington State applicants or employees\nonly: You also have the right to request from\nthe consumer reporting agency a written\nsummary of your rights and remedies under\nthe Washington Fair Credit Reporting Act.\n\nACKNOWLEDGMENT AND AUTHORIZATION\n\nI acknowledge receipt of the NOTICE\nREGARDING BACKGROUND\nINVESTIGATION and A SUMMARY OF\nYOUR RIGHTS UNDER THE FAIR\nCREDIT REPORTING ACT and certify that\n\f8 GILBERG V. CAL. CHECK CASHING STORES\n\n I have read and understand both of those\n documents. I hereby authorize the obtaining\n of “consumer reports” and/or “investigative\n consumer reports” at any time after receipt of\n this authorization and, if I am hired,\n throughout my employment. To this end, I\n hereby authorize, without reservation, any\n law enforcement agency, administrator, state\n or federal agency, institution, school or\n university (public or private), information\n service bureau, employer, or insurance\n company to furnish any and all background\n information requested by ESS, 2500\n Southlake Park, Birmingham, AL 35244, toll\n free 866.859.0143, www.es2.com, or another\n outside organization acting on behalf of\n CheckSmart Financial, LLC, I agree that a\n facsimile (“fax”), electronic or photographic\n copy of this Authorization shall be as valid as\n the original.\n\n California applicants or employees only: By\n signing below, you also acknowledge receipt\n of the DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n PURSUANT TO CALIFORNIA LAW.\n Please check this box if you would like to\n receive a copy of an investigative consumer\n report or consumer credit report if one is\n obtained by the Company at no charge\n whenever you have a right to receive such a\n copy under California law.\n []\n Minnesota and Oklahoma applicants or\n employees only: Check this box if you would\n\f GILBERG V. CAL. CHECK CASHING STORES 9\n\n like to receive a free copy of a consumer\n report if one is obtained by the Company.\n []\n New York applicants or employees only: By\n signing below, you also acknowledge receipt\n of Article 23-A of the New York Correction\n Law.\n\n After receiving Gilberg’s signed disclosure form,\nCheckSmart obtained a criminal background report, which\nconfirmed that Gilberg did not have a criminal record.\nCheckSmart did not obtain a credit report. CheckSmart\nhired Gilberg, who worked for CheckSmart for five months\nbefore voluntarily terminating her employment.\n\n Gilberg then brought this putative class action against\nCheckSmart, alleging two claims relevant here: (1) failure to\nmake a proper FCRA disclosure and (2) failure to make a\nproper disclosure under California’s Investigative Consumer\nReporting Agencies Act (ICRAA).\n\n FCRA prohibits an employer from obtaining an\napplicant’s consumer report without first providing the\napplicant with a standalone, clear and conspicuous\ndisclosure of its intention to do so and without obtaining the\napplicant’s consent:\n\n Except as provided in subparagraph (B), a\n person may not procure a consumer report, or\n cause a consumer report to be procured, for\n employment purposes with respect to any\n consumer, unless –\n\n (i) a clear and conspicuous disclosure has\n been made in writing to the consumer at any\n time before the report is procured or caused\n\f10 GILBERG V. CAL. CHECK CASHING STORES\n\n to be procured, in a document that consists\n solely of the disclosure, that a consumer\n report may be obtained for employment\n purposes; and\n\n (ii) the consumer has authorized in writing\n (which authorization may be made on the\n document referred to in clause (i)) the\n procurement of the report by that person.\n\n15 U.S.C. § 1681b(b)(2)(A) (emphasis added).\n\n California imposes its own FCRA-like disclosure\nrequirements. See Cal. Civ. Code §§ 1785.20(5)(a),\n1786.16(a)(2)(B). Under ICRAA:\n\n (2) If, at any time, an investigative consumer\n report is sought for employment purposes\n other than suspicion of wrongdoing or\n misconduct by the subject of the\n investigation, the person seeking the\n investigative consumer report may procure\n the report, or cause the report to be made,\n only if all of the following apply:\n\n ...\n\n (B) The person procuring or causing the\n report to be made provides a clear and\n conspicuous disclosure in writing to the\n consumer at any time before the report is\n procured or caused to be made in a\n document that consists solely of the\n disclosure, that:\n\f GILBERG V. CAL. CHECK CASHING STORES 11\n\n (i) An investigative consumer report\n may be obtained.\n\n ...\n\n (C) The consumer has authorized in\n writing the procurement of the report.\n\nId. § 1786.16(a)(2) (emphasis added). As relevant here, the\nICRAA and FCRA provisions are identical.\n\n CheckSmart moved for summary judgment on both\nclaims. The district court entered summary judgment\nagainst Gilberg, concluding that CheckSmart’s disclosure\nform complied with FCRA and ICRAA. Gilberg timely\nappealed.\n\nII. Jurisdiction and Standard of Review\n\n We have jurisdiction under 28 U.S.C. § 1291. We\nreview de novo an order granting summary judgment. See\nTravelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d\n1132, 1137 (9th Cir. 2009).\n\nIII. FCRA and ICRAA Standalone Document\n Requirements\n\n A. The Relevant Disclosure Form\n\n Gilberg contends the relevant document for our analysis\nincludes every form she filled out in the employment process\n– a total of four pages. We disagree. Gilberg does not offer\nany judicial authority, legislative history or dictionary\ndefinition to support her argument that the word\n“document,” as used in FCRA, encompasses the universe of\nemployment application materials furnished by an employer\n\f12 GILBERG V. CAL. CHECK CASHING STORES\n\nto a prospective employee. She relies instead on California\ncontract law, under which “[s]everal contracts relating to the\nsame matters, between the same parties, and made as parts\nof substantially one transaction, are to be taken together.”\nCal. Civ. Code § 1642. Gilberg, however provides no\npersuasive reason to extend this contract law principle to\nFCRA’s definition of a document, and we decline to do so.\nMoreover, under Gilberg’s proposed interpretation, it is\ndifficult to see how an employer could ever provide an\napplicant written application materials without violating\nFCRA’s standalone document requirement.\n\n Gilberg’s three-page employment packet was distinct\nfrom the one-page disclosure document. The relevant form\nfor our analysis, therefore, is the disclosure form alone, not\nthe entire four pages.\n\n B. CheckSmart’s disclosure form violates FCRA’s\n standalone document requirement.\n\n Gilberg contends CheckSmart’s disclosure form violates\nFCRA’s standalone document requirement. We agree.\n\n We analyzed FCRA’s standalone document requirement\nin Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held\nthat “a prospective employer violates Section\n1681b(b)(2)(A) when it procures a job applicant’s consumer\nreport after including a liability waiver in the same document\nas the statutorily mandated disclosure.” Id. at 496. We\nconcluded the statute meant what it said: the required\ndisclosure must be in a document that “consist[s] ‘solely’ of\nthe disclosure.” Id. We based this holding on the statute’s\nplain language, noting “[w]here congressional intent ‘has\nbeen expressed in reasonably plain terms, that language must\nordinarily be regarded as conclusive.’” Id. at 500 (quoting\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570\n\f GILBERG V. CAL. CHECK CASHING STORES 13\n\n(1982)). “That other FCRA provisions mandating disclosure\nomit the term ‘solely’ is further evidence that Congress\nintended that term to carry meaning in 15 U.S.C.\n§ 1681b(b)(2)(A)(i).” Id. at 501.\n\n CheckSmart contends Syed is not applicable here,\nbecause the surplusage in Syed was a liability waiver, which\ndid “not comport with the FCRA’s basic purpose” because\nit pulled “the applicant’s attention away from his privacy\nrights protected by the FCRA by calling his attention to the\nrights he must forego if he signs the document.” Id. at 502.\nCheckSmart argues its disclosure is distinguishable because\nall of the extraneous information consists of other, state-\nmandated disclosure information, which furthers rather than\nundermines FCRA’s purpose.\n\n We disagree. Syed’s holding and statutory analysis were\nnot limited to liability waivers; Syed considered the\nstandalone requirement with regard to any surplusage. See\nid. at 501. Syed grounded its analysis of the liability waiver\nin its statutory analysis of the word “solely,” noting that\nFCRA should not be read to have implied exceptions,\nespecially when the exception – in that case, a liability\nwaiver – was contrary to FCRA’s purpose. See id. at 501–\n03. Syed also cautioned “against finding additional, implied\nexceptions” simply because Congress had created one\nexpress exception. Id. at 501. 2 Consistent with Syed, we\ndecline CheckSmart’s invitation to create an implied\nexception here.\n\n\n 2\n FCRA’s one express exception to the standalone document\nrequirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the\napplicant to “authorize in writing” the procurement of a consumer report\non the same document as the disclosure.\n\f14 GILBERG V. CAL. CHECK CASHING STORES\n\n Although CheckSmart contends its disclosure form is\nconsistent with the congressional purpose of FCRA because\nit helps applicants understand their state and federal rights,\npurpose does not override plain meaning. As Syed\nexplained, congressional intent “has been expressed in\nreasonably plain terms” and “that language must ordinarily\nbe regarded as conclusive.” Id. at 500 (quoting Griffin,\n458 U.S. at 570). The ordinary meaning of “solely” is\n“[a]lone; singly” or “[e]ntirely; exclusively.” The American\nHeritage Dictionary of the English Language 1666 (5th ed.\n2011). Because CheckSmart’s disclosure form does not\nconsist solely of the FCRA disclosure, it does not satisfy\nFCRA’s standalone document requirement.\n\n CheckSmart, moreover, fails to explain how the surplus\nlanguage in its disclosure form comports with FCRA’s\npurpose. Its disclosure refers not only to rights under FCRA\nand under ICRAA applicable to Gilberg, but also to rights\nunder state laws inapplicable to Gilberg and to extraneous\ndocuments that are not part of the FCRA-mandated\ndisclosure – e.g., a “Notice Regarding Background\nInvestigation” and a “Summary of Your Rights Under the\nFair Credit Reporting Act.” Because the presence of this\nextraneous information is as likely to confuse as it is to\ninform, it does not further FCRA’s purpose.\n\n CheckSmart urges us to follow the district court’s\ndecision in Noori v. Vivint, Inc., No. CV 16-5491 PA\n(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d\non other grounds, 726 F. App’x 624 (9th Cir. 2018), which\nreasoned that the inclusion of information “closely related”\nto FCRA’s disclosure requirements does not violate the\nstandalone document requirement. Id. at *5. Our\nsubsequent decision in Syed, however, forecloses that\napproach. Noori, moreover, did not explain how to\n\f GILBERG V. CAL. CHECK CASHING STORES 15\n\ndetermine what information would be “closely related” to\nFCRA’s disclosure requirements. Indeed, even “related”\ninformation may distract or confuse the reader.\n\n In sum, Syed holds that the standalone requirement\nforecloses implicit exceptions. The statute’s one express\nexception does not apply here, and CheckSmart’s disclosure\ncontains extraneous and irrelevant information beyond what\nFCRA itself requires. The disclosure therefore violates\nFCRA’s standalone document requirement. Even if\ncongressional purpose were relevant, much of the surplusage\nin CheckSmart’s disclosure form does not effectuate the\npurposes of FCRA. The district court therefore erred in\nconcluding that CheckSmart’s disclosure form satisfies\nFCRA’s standalone document requirement.\n\n C. CheckSmart’s disclosure form also violates ICRAA’s\n standalone document requirement.\n\n As the parties appear to agree, the standalone document\nrequirements under FCRA and ICRAA are identical. Thus,\nbecause we conclude CheckSmart’s disclosure violates\nFCRA, we conclude it violates ICRAA’s standalone\ndocument requirement as well.\n\nIV. CheckSmart’s disclosure form was not “clear and\n conspicuous.”\n\n FCRA and ICRAA require a disclosure form to be “clear\nand conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.\nCode § 1786.16(a)(2)(B). Neither statute, however, defines\nthe term “clear and conspicuous.”\n\n Like other circuits, we “draw upon the wealth of\n[Uniform Commercial Code (UCC)] and [Truth in Lending\nAct (TILA)] case law in determining the meaning of ‘clear\n\f16 GILBERG V. CAL. CHECK CASHING STORES\n\nand conspicuous’ under the FCRA.” Cole v. U.S. Capital,\n389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.\nTRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting\n“clear and conspicuous” language used in 15 U.S.C.\n§ 1681i(d) with reference to TILA and UCC cases). We\nadopt our “clear and conspicuous” analysis from Rubio v.\nCapital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA\ndisclosure case. In Rubio, we explained that clear means\n“reasonably understandable.” Id. at 1200 (citation omitted);\naccord Applebaum v. Nissan Motor Acceptance Corp.,\n226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA\ncontext that “clear” means the “language used in a disclosure\nmust be cast in [a] reasonably understandable form.”\n(internal quotation marks omitted)). Conspicuous means\n“readily noticeable to the consumer.” Rubio, 613 F.3d at\n1200 (citation omitted). Because the parties do not argue\nthat ICRAA’s clear and conspicuous requirement differs\nfrom FCRA’s, we apply those definitions to Gilberg’s\nICRAA claim as well.\n\n Although the “clear and conspicuous” requirement\nimposes a single statutory obligation, we may analyze each\nprong separately, see, e.g., In re Bassett, 285 F.3d 882, 885\n(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so\nhere. In the TILA context, we have said that clarity and\nconspicuousness are questions of law. See Rubio, 613 F.3d\nat 1200. Because neither party suggests we should treat\nFCRA differently, we assume for the purposes of our\nanalysis, without deciding, that clarity and conspicuousness\nunder FCRA present questions of law rather than fact.\n\n A. CheckSmart’s disclosure form was not clear.\n\n CheckSmart’s disclosure form is not reasonably\nunderstandable for two distinct reasons. First, the disclosure\n\f GILBERG V. CAL. CHECK CASHING STORES 17\n\nform contains language that a reasonable person would not\nunderstand. It says:\n\n The scope of this notice and authorization is\n all-encompassing; however, allowing\n CheckSmart Financial, LLC to obtain from\n any outside organization all manner of\n consumer reports and investigative consumer\n reports now and, if you are hired, throughout\n the course of your employment to the extent\n permitted by law.\n\nThe beginning of this sentence does not explain how the\nauthorization is all-encompassing and how that would affect\nan applicant’s rights. The second half of the sentence,\nfollowing the semicolon, lacks a subject and is incomplete.\nIt suggests that there may be some limits on the all-\nencompassing nature of the authorization, but it does not\nidentify what those limits might be.\n\n Second, the disclosure would confuse a reasonable\nreader because it combines federal and state disclosures.\nThe disclosure, for example, states: “New York and Maine\napplicants or employees only: You have the right to inspect\nand receive a copy of any investigative consumer report\nrequested by CheckSmart Financial, LLC by contacting the\nconsumer reporting agency identified above directly.” A\nreasonable reader might think that only New York and\nMaine applicants could contact the consumer reporting\nagency to get a copy of the report. Such an understanding\nwould be contrary to both FCRA and ICRAA. See 15 U.S.C.\n§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.\n\n We hold, therefore, that the district court erred by\ndeeming CheckSmart’s disclosure form clear.\n\f18 GILBERG V. CAL. CHECK CASHING STORES\n\n B. CheckSmart’s disclosure form was conspicuous.\n\n The district court properly concluded, however, that\nCheckSmart’s disclosure form is conspicuous. As noted,\nconspicuous means “readily noticeable to the consumer.”\nRubio, 613 F.3d at 1200. CheckSmart capitalized, bolded\nand underlined the headings for each section of the\ndisclosure and labeled the form so an applicant could see\nwhat she was signing. Although the font is small and\ncramped (we think inadvisably so), it is legible. All relevant\ninformation appears on the front of the page and the headings\nhelp applicants understand the purpose of the form. The\ndisclosure, therefore, is conspicuous.\n\n Nevertheless, because CheckSmart’s disclosure form\nwas not both clear and conspicuous, the district erred in\ngranting CheckSmart’s motion for summary judgment with\nregard to the FCRA and ICRAA “clear and conspicuous”\nrequirements.\n\nV. Conclusion\n\n We hold that the district court erred by concluding that\nthe standalone document requirements of FCRA and ICRAA\nwere satisfied here. We further hold that CheckSmart’s\ndisclosure satisfies the FCRA and ICRAA requirements for\nconspicuousness but not for clarity. For these reasons, and\nthe reasons stated in our contemporaneously filed\nmemorandum disposition, we affirm in part and vacate in\npart the judgment of the district court, and we remand for\nfurther proceedings consistent with these dispositions. Each\nparty shall bear its own costs of appeal.\n\n AFFIRMED IN PART; VACATED IN PART;\nREMANDED.\n\fAppendix A\n\f Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49\n\n\n\n\n(5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362711/", "author_raw": "FISHER, Circuit Judge:"}]}	RAYMOND C FISHER	MILAN D SMITH JR	LAWRENCE L PIERSOL	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585458/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Desiree Gilberg v. Cal. Check Cashing Stores, LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n DESIREE GILBERG, on behalf of No. 17-16263\n herself, all others similarly situated,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02309-\n v. JAM-AC\n\n CALIFORNIA CHECK CASHING\n STORES, LLC, a California OPINION\n corporation; CHECKSMART\n FINANCIAL, LLC, a Delaware limited\n liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n John A. Mendez, District Judge, Presiding\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\n Before: Raymond C. Fisher and Milan D. Smith, Jr.,\n Circuit Judges, and Lawrence L. Piersol, District Judge. \n\n Opinion by Judge Fisher\n\n \n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 GILBERG V. CAL. CHECK CASHING STORES\n\n SUMMARY \n\n\n Fair Credit Reporting Act\n\n The panel affirmed in part and vacated in part the district\ncourt’s summary judgment in favor of defendants in an\naction under the Fair Credit Reporting Act, and remanded\nfor further proceedings.\n\n FCRA requires employers who obtain a consumer report\non a job applicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous” requirement) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument” requirement) before procuring the report.\n\n The panel held that a prospective employer violates\nFCRA’s “standalone document” requirement by including\nextraneous information relating to various state disclosure\nrequirements in that disclosure. The panel concluded that\ndefendant’s form violated this requirement, as well as the\n“standalone document” requirement of California’s\nInvestigative Consumer Reporting Agencies Act. The panel\nfurther held that defendant’s disclosure did not satisfy\nFCRA’s and ICRAA’s “clear and conspicuous”\nrequirements because, although the disclosure was\nconspicuous, it was not clear.\n\n The panel addressed additional issues in a concurrently-\nfiled memorandum disposition.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILBERG V. CAL. CHECK CASHING STORES 3\n\n COUNSEL\n\nH. Scott W. Leviant (argued), Thomas Segal, and Shaun\nSetareh, Setareh Law Group, Beverly Hills, California, for\nPlaintiff-Appellant.\n\nTimothy W. Snider (argued) and Chrystal S. Chase, Stoel\nRives LLP, Portland, Oregon; Bryan L. Hawkins, Stoel\nRives LLP, Sacramento, California; for Defendants-\nAppellees.\n\n\n OPINION\n\nFISHER, Circuit Judge:\n\n The widespread use of credit reports and background\nchecks led Congress to pass the Fair Credit Reporting Act\n(FCRA) to protect consumers’ privacy rights. FCRA\nrequires employers who obtain a consumer report on a job\napplicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous requirement”) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument requirement”) before procuring the report.\n15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to\ndecide two questions: (1) whether a prospective employer\nmay satisfy FCRA’s standalone document requirement by\nproviding job applicants with a disclosure containing\nextraneous information in the form of various state\ndisclosure requirements, and (2) whether the specific\ndisclosure provided by the employer in this case satisfied the\nclear and conspicuous requirement.\n\f4 GILBERG V. CAL. CHECK CASHING STORES\n\n We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.\n2017), that FCRA contains “clear statutory language that the\ndisclosure document must consist ‘solely’ of the disclosure.”\nId. at 496. Consistent with Syed, we now hold that a\nprospective employer violates FCRA’s standalone document\nrequirement by including extraneous information relating to\nvarious state disclosure requirements in that disclosure. We\nalso hold that the disclosure at issue here is conspicuous but\nnot clear. Accordingly, we affirm in part, vacate in part and\nremand. 1\n\nI. Background\n\n In the process of applying for employment with\nCheckSmart Financial, LLC, Desiree Gilberg completed a\nthree-page form containing an employment application, a\nmath screening and an employment history verification.\nTwo weeks later, Gilberg signed a separate form, entitled\n“Disclosure Regarding Background Investigation,” that is\nthe subject of this litigation. A copy of the disclosure is\nappended to this opinion. The form appears to have been\nprinted in Arial Narrow, size 8 font.\n\n Because the legal sufficiency of the FCRA disclosure\nprovided to Gilberg is in question, we include the full text of\nthe disclosure:\n\n\n\n\n 1\n We address Gilberg’s remaining contentions in a concurrently filed\nmemorandum disposition.\n\f GILBERG V. CAL. CHECK CASHING STORES 5\n\n DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n\n DISCLOSURE AND\n ACKNOWLEDGMENT\n\n [IMPORTANT – PLEASE READ\n CAREFULLY BEFORE SIGNING\n ACKNOWLEDGMENT]\n\nCheckSmart Financial, LLC may obtain\ninformation about you from a consumer\nreporting agency for employment purposes.\nThus, you may be the subject of a ‘consumer\nreport’ and/or an ‘investigative consumer\nreport’ which may include information about\nyour character, general reputation, personal\ncharacteristics, and/or mode of living, and\nwhich can involve personal interviews with\nsources such as your neighbors, friends, or\nassociates. These reports may include\nemployment history and reference checks,\ncriminal and civil litigation history\ninformation, motor vehicle records (‘driving\nrecords’), sex offender status, credit reports,\neducation verification, professional\nlicensure, drug testing, Social Security\nVerification, and information concerning\nworkers’ compensation claims (only once a\nconditional offer of employment has been\nmade). Credit history will only be requested\nwhere such information is substantially\nrelated to the duties and responsibilities of the\nposition for which you are applying. You\nhave the right, upon written request made\n\f6 GILBERG V. CAL. CHECK CASHING STORES\n\n within a reasonable time after receipt of this\n notice, to request whether a consumer report\n has been run about you, and the nature and\n scope of any investigative consumer report,\n and request a copy of your report. Please be\n advised that the nature and scope of the most\n common form of investigative consumer\n report obtained with regard to applicants for\n employment is an investigation into your\n education and/or employment history\n conducted by Employment Screening\n Services, 2500 Southlake Park, Birmingham,\n AL 35244, toll-free 866.859.0143,\n www.es2.com or another outside\n organization. The scope of this notice and\n authorization is all-encompassing; however,\n allowing CheckSmart Financial, LLC to\n obtain from any outside organization all\n manner of consumer reports and investigative\n consumer reports now and, if you are hired,\n throughout the course of your employment to\n the extent permitted by law. As a result, you\n should carefully consider whether to exercise\n your right to request disclosure of the nature\n and scope of any investigative consumer\n report.\n\n New York and Maine applicants or\n employees only: You have the right to inspect\n and receive a copy of any investigative\n consumer report requested by CheckSmart\n Financial, LLC by contacting the consumer\n reporting agency identified above directly.\n You may also contact the Company to\n request the name, address and telephone\n\f GILBERG V. CAL. CHECK CASHING STORES 7\n\nnumber of the nearest unit of the consumer\nreporting agency designated to handle\ninquiries, which the Company shall provide\nwithin 5 days.\n\nNew York applicants or employees only:\nUpon request, you will be informed whether\nor not a consumer report was requested by\nCheckSmart Financial, LLC, and if such\nreport was requested, informed of the name\nand address of the consumer reporting\nagency that furnished the report.\n\nOregon applicants or employees only:\nInformation describing your rights under\nfederal and Oregon law regarding consumer\nidentity theft protection, the storage and\ndisposal of your credit information, and\nremedies available should you suspect or find\nthat the Company has not maintained secured\nrecords is available to you upon request.\n\nWashington State applicants or employees\nonly: You also have the right to request from\nthe consumer reporting agency a written\nsummary of your rights and remedies under\nthe Washington Fair Credit Reporting Act.\n\nACKNOWLEDGMENT AND AUTHORIZATION\n\nI acknowledge receipt of the NOTICE\nREGARDING BACKGROUND\nINVESTIGATION and A SUMMARY OF\nYOUR RIGHTS UNDER THE FAIR\nCREDIT REPORTING ACT and certify that\n\f8 GILBERG V. CAL. CHECK CASHING STORES\n\n I have read and understand both of those\n documents. I hereby authorize the obtaining\n of “consumer reports” and/or “investigative\n consumer reports” at any time after receipt of\n this authorization and, if I am hired,\n throughout my employment. To this end, I\n hereby authorize, without reservation, any\n law enforcement agency, administrator, state\n or federal agency, institution, school or\n university (public or private), information\n service bureau, employer, or insurance\n company to furnish any and all background\n information requested by ESS, 2500\n Southlake Park, Birmingham, AL 35244, toll\n free 866.859.0143, www.es2.com, or another\n outside organization acting on behalf of\n CheckSmart Financial, LLC, I agree that a\n facsimile (“fax”), electronic or photographic\n copy of this Authorization shall be as valid as\n the original.\n\n California applicants or employees only: By\n signing below, you also acknowledge receipt\n of the DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n PURSUANT TO CALIFORNIA LAW.\n Please check this box if you would like to\n receive a copy of an investigative consumer\n report or consumer credit report if one is\n obtained by the Company at no charge\n whenever you have a right to receive such a\n copy under California law.\n []\n Minnesota and Oklahoma applicants or\n employees only: Check this box if you would\n\f GILBERG V. CAL. CHECK CASHING STORES 9\n\n like to receive a free copy of a consumer\n report if one is obtained by the Company.\n []\n New York applicants or employees only: By\n signing below, you also acknowledge receipt\n of Article 23-A of the New York Correction\n Law.\n\n After receiving Gilberg’s signed disclosure form,\nCheckSmart obtained a criminal background report, which\nconfirmed that Gilberg did not have a criminal record.\nCheckSmart did not obtain a credit report. CheckSmart\nhired Gilberg, who worked for CheckSmart for five months\nbefore voluntarily terminating her employment.\n\n Gilberg then brought this putative class action against\nCheckSmart, alleging two claims relevant here: (1) failure to\nmake a proper FCRA disclosure and (2) failure to make a\nproper disclosure under California’s Investigative Consumer\nReporting Agencies Act (ICRAA).\n\n FCRA prohibits an employer from obtaining an\napplicant’s consumer report without first providing the\napplicant with a standalone, clear and conspicuous\ndisclosure of its intention to do so and without obtaining the\napplicant’s consent:\n\n Except as provided in subparagraph (B), a\n person may not procure a consumer report, or\n cause a consumer report to be procured, for\n employment purposes with respect to any\n consumer, unless –\n\n (i) a clear and conspicuous disclosure has\n been made in writing to the consumer at any\n time before the report is procured or caused\n\f10 GILBERG V. CAL. CHECK CASHING STORES\n\n to be procured, in a document that consists\n solely of the disclosure, that a consumer\n report may be obtained for employment\n purposes; and\n\n (ii) the consumer has authorized in writing\n (which authorization may be made on the\n document referred to in clause (i)) the\n procurement of the report by that person.\n\n15 U.S.C. § 1681b(b)(2)(A) (emphasis added).\n\n California imposes its own FCRA-like disclosure\nrequirements. See Cal. Civ. Code §§ 1785.20(5)(a),\n1786.16(a)(2)(B). Under ICRAA:\n\n (2) If, at any time, an investigative consumer\n report is sought for employment purposes\n other than suspicion of wrongdoing or\n misconduct by the subject of the\n investigation, the person seeking the\n investigative consumer report may procure\n the report, or cause the report to be made,\n only if all of the following apply:\n\n ...\n\n (B) The person procuring or causing the\n report to be made provides a clear and\n conspicuous disclosure in writing to the\n consumer at any time before the report is\n procured or caused to be made in a\n document that consists solely of the\n disclosure, that:\n\f GILBERG V. CAL. CHECK CASHING STORES 11\n\n (i) An investigative consumer report\n may be obtained.\n\n ...\n\n (C) The consumer has authorized in\n writing the procurement of the report.\n\nId. § 1786.16(a)(2) (emphasis added). As relevant here, the\nICRAA and FCRA provisions are identical.\n\n CheckSmart moved for summary judgment on both\nclaims. The district court entered summary judgment\nagainst Gilberg, concluding that CheckSmart’s disclosure\nform complied with FCRA and ICRAA. Gilberg timely\nappealed.\n\nII. Jurisdiction and Standard of Review\n\n We have jurisdiction under 28 U.S.C. § 1291. We\nreview de novo an order granting summary judgment. See\nTravelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d\n1132, 1137 (9th Cir. 2009).\n\nIII. FCRA and ICRAA Standalone Document\n Requirements\n\n A. The Relevant Disclosure Form\n\n Gilberg contends the relevant document for our analysis\nincludes every form she filled out in the employment process\n– a total of four pages. We disagree. Gilberg does not offer\nany judicial authority, legislative history or dictionary\ndefinition to support her argument that the word\n“document,” as used in FCRA, encompasses the universe of\nemployment application materials furnished by an employer\n\f12 GILBERG V. CAL. CHECK CASHING STORES\n\nto a prospective employee. She relies instead on California\ncontract law, under which “[s]everal contracts relating to the\nsame matters, between the same parties, and made as parts\nof substantially one transaction, are to be taken together.”\nCal. Civ. Code § 1642. Gilberg, however provides no\npersuasive reason to extend this contract law principle to\nFCRA’s definition of a document, and we decline to do so.\nMoreover, under Gilberg’s proposed interpretation, it is\ndifficult to see how an employer could ever provide an\napplicant written application materials without violating\nFCRA’s standalone document requirement.\n\n Gilberg’s three-page employment packet was distinct\nfrom the one-page disclosure document. The relevant form\nfor our analysis, therefore, is the disclosure form alone, not\nthe entire four pages.\n\n B. CheckSmart’s disclosure form violates FCRA’s\n standalone document requirement.\n\n Gilberg contends CheckSmart’s disclosure form violates\nFCRA’s standalone document requirement. We agree.\n\n We analyzed FCRA’s standalone document requirement\nin Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held\nthat “a prospective employer violates Section\n1681b(b)(2)(A) when it procures a job applicant’s consumer\nreport after including a liability waiver in the same document\nas the statutorily mandated disclosure.” Id. at 496. We\nconcluded the statute meant what it said: the required\ndisclosure must be in a document that “consist[s] ‘solely’ of\nthe disclosure.” Id. We based this holding on the statute’s\nplain language, noting “[w]here congressional intent ‘has\nbeen expressed in reasonably plain terms, that language must\nordinarily be regarded as conclusive.’” Id. at 500 (quoting\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570\n\f GILBERG V. CAL. CHECK CASHING STORES 13\n\n(1982)). “That other FCRA provisions mandating disclosure\nomit the term ‘solely’ is further evidence that Congress\nintended that term to carry meaning in 15 U.S.C.\n§ 1681b(b)(2)(A)(i).” Id. at 501.\n\n CheckSmart contends Syed is not applicable here,\nbecause the surplusage in Syed was a liability waiver, which\ndid “not comport with the FCRA’s basic purpose” because\nit pulled “the applicant’s attention away from his privacy\nrights protected by the FCRA by calling his attention to the\nrights he must forego if he signs the document.” Id. at 502.\nCheckSmart argues its disclosure is distinguishable because\nall of the extraneous information consists of other, state-\nmandated disclosure information, which furthers rather than\nundermines FCRA’s purpose.\n\n We disagree. Syed’s holding and statutory analysis were\nnot limited to liability waivers; Syed considered the\nstandalone requirement with regard to any surplusage. See\nid. at 501. Syed grounded its analysis of the liability waiver\nin its statutory analysis of the word “solely,” noting that\nFCRA should not be read to have implied exceptions,\nespecially when the exception – in that case, a liability\nwaiver – was contrary to FCRA’s purpose. See id. at 501–\n03. Syed also cautioned “against finding additional, implied\nexceptions” simply because Congress had created one\nexpress exception. Id. at 501. 2 Consistent with Syed, we\ndecline CheckSmart’s invitation to create an implied\nexception here.\n\n\n 2\n FCRA’s one express exception to the standalone document\nrequirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the\napplicant to “authorize in writing” the procurement of a consumer report\non the same document as the disclosure.\n\f14 GILBERG V. CAL. CHECK CASHING STORES\n\n Although CheckSmart contends its disclosure form is\nconsistent with the congressional purpose of FCRA because\nit helps applicants understand their state and federal rights,\npurpose does not override plain meaning. As Syed\nexplained, congressional intent “has been expressed in\nreasonably plain terms” and “that language must ordinarily\nbe regarded as conclusive.” Id. at 500 (quoting Griffin,\n458 U.S. at 570). The ordinary meaning of “solely” is\n“[a]lone; singly” or “[e]ntirely; exclusively.” The American\nHeritage Dictionary of the English Language 1666 (5th ed.\n2011). Because CheckSmart’s disclosure form does not\nconsist solely of the FCRA disclosure, it does not satisfy\nFCRA’s standalone document requirement.\n\n CheckSmart, moreover, fails to explain how the surplus\nlanguage in its disclosure form comports with FCRA’s\npurpose. Its disclosure refers not only to rights under FCRA\nand under ICRAA applicable to Gilberg, but also to rights\nunder state laws inapplicable to Gilberg and to extraneous\ndocuments that are not part of the FCRA-mandated\ndisclosure – e.g., a “Notice Regarding Background\nInvestigation” and a “Summary of Your Rights Under the\nFair Credit Reporting Act.” Because the presence of this\nextraneous information is as likely to confuse as it is to\ninform, it does not further FCRA’s purpose.\n\n CheckSmart urges us to follow the district court’s\ndecision in Noori v. Vivint, Inc., No. CV 16-5491 PA\n(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d\non other grounds, 726 F. App’x 624 (9th Cir. 2018), which\nreasoned that the inclusion of information “closely related”\nto FCRA’s disclosure requirements does not violate the\nstandalone document requirement. Id. at *5. Our\nsubsequent decision in Syed, however, forecloses that\napproach. Noori, moreover, did not explain how to\n\f GILBERG V. CAL. CHECK CASHING STORES 15\n\ndetermine what information would be “closely related” to\nFCRA’s disclosure requirements. Indeed, even “related”\ninformation may distract or confuse the reader.\n\n In sum, Syed holds that the standalone requirement\nforecloses implicit exceptions. The statute’s one express\nexception does not apply here, and CheckSmart’s disclosure\ncontains extraneous and irrelevant information beyond what\nFCRA itself requires. The disclosure therefore violates\nFCRA’s standalone document requirement. Even if\ncongressional purpose were relevant, much of the surplusage\nin CheckSmart’s disclosure form does not effectuate the\npurposes of FCRA. The district court therefore erred in\nconcluding that CheckSmart’s disclosure form satisfies\nFCRA’s standalone document requirement.\n\n C. CheckSmart’s disclosure form also violates ICRAA’s\n standalone document requirement.\n\n As the parties appear to agree, the standalone document\nrequirements under FCRA and ICRAA are identical. Thus,\nbecause we conclude CheckSmart’s disclosure violates\nFCRA, we conclude it violates ICRAA’s standalone\ndocument requirement as well.\n\nIV. CheckSmart’s disclosure form was not “clear and\n conspicuous.”\n\n FCRA and ICRAA require a disclosure form to be “clear\nand conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.\nCode § 1786.16(a)(2)(B). Neither statute, however, defines\nthe term “clear and conspicuous.”\n\n Like other circuits, we “draw upon the wealth of\n[Uniform Commercial Code (UCC)] and [Truth in Lending\nAct (TILA)] case law in determining the meaning of ‘clear\n\f16 GILBERG V. CAL. CHECK CASHING STORES\n\nand conspicuous’ under the FCRA.” Cole v. U.S. Capital,\n389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.\nTRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting\n“clear and conspicuous” language used in 15 U.S.C.\n§ 1681i(d) with reference to TILA and UCC cases). We\nadopt our “clear and conspicuous” analysis from Rubio v.\nCapital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA\ndisclosure case. In Rubio, we explained that clear means\n“reasonably understandable.” Id. at 1200 (citation omitted);\naccord Applebaum v. Nissan Motor Acceptance Corp.,\n226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA\ncontext that “clear” means the “language used in a disclosure\nmust be cast in [a] reasonably understandable form.”\n(internal quotation marks omitted)). Conspicuous means\n“readily noticeable to the consumer.” Rubio, 613 F.3d at\n1200 (citation omitted). Because the parties do not argue\nthat ICRAA’s clear and conspicuous requirement differs\nfrom FCRA’s, we apply those definitions to Gilberg’s\nICRAA claim as well.\n\n Although the “clear and conspicuous” requirement\nimposes a single statutory obligation, we may analyze each\nprong separately, see, e.g., In re Bassett, 285 F.3d 882, 885\n(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so\nhere. In the TILA context, we have said that clarity and\nconspicuousness are questions of law. See Rubio, 613 F.3d\nat 1200. Because neither party suggests we should treat\nFCRA differently, we assume for the purposes of our\nanalysis, without deciding, that clarity and conspicuousness\nunder FCRA present questions of law rather than fact.\n\n A. CheckSmart’s disclosure form was not clear.\n\n CheckSmart’s disclosure form is not reasonably\nunderstandable for two distinct reasons. First, the disclosure\n\f GILBERG V. CAL. CHECK CASHING STORES 17\n\nform contains language that a reasonable person would not\nunderstand. It says:\n\n The scope of this notice and authorization is\n all-encompassing; however, allowing\n CheckSmart Financial, LLC to obtain from\n any outside organization all manner of\n consumer reports and investigative consumer\n reports now and, if you are hired, throughout\n the course of your employment to the extent\n permitted by law.\n\nThe beginning of this sentence does not explain how the\nauthorization is all-encompassing and how that would affect\nan applicant’s rights. The second half of the sentence,\nfollowing the semicolon, lacks a subject and is incomplete.\nIt suggests that there may be some limits on the all-\nencompassing nature of the authorization, but it does not\nidentify what those limits might be.\n\n Second, the disclosure would confuse a reasonable\nreader because it combines federal and state disclosures.\nThe disclosure, for example, states: “New York and Maine\napplicants or employees only: You have the right to inspect\nand receive a copy of any investigative consumer report\nrequested by CheckSmart Financial, LLC by contacting the\nconsumer reporting agency identified above directly.” A\nreasonable reader might think that only New York and\nMaine applicants could contact the consumer reporting\nagency to get a copy of the report. Such an understanding\nwould be contrary to both FCRA and ICRAA. See 15 U.S.C.\n§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.\n\n We hold, therefore, that the district court erred by\ndeeming CheckSmart’s disclosure form clear.\n\f18 GILBERG V. CAL. CHECK CASHING STORES\n\n B. CheckSmart’s disclosure form was conspicuous.\n\n The district court properly concluded, however, that\nCheckSmart’s disclosure form is conspicuous. As noted,\nconspicuous means “readily noticeable to the consumer.”\nRubio, 613 F.3d at 1200. CheckSmart capitalized, bolded\nand underlined the headings for each section of the\ndisclosure and labeled the form so an applicant could see\nwhat she was signing. Although the font is small and\ncramped (we think inadvisably so), it is legible. All relevant\ninformation appears on the front of the page and the headings\nhelp applicants understand the purpose of the form. The\ndisclosure, therefore, is conspicuous.\n\n Nevertheless, because CheckSmart’s disclosure form\nwas not both clear and conspicuous, the district erred in\ngranting CheckSmart’s motion for summary judgment with\nregard to the FCRA and ICRAA “clear and conspicuous”\nrequirements.\n\nV. Conclusion\n\n We hold that the district court erred by concluding that\nthe standalone document requirements of FCRA and ICRAA\nwere satisfied here. We further hold that CheckSmart’s\ndisclosure satisfies the FCRA and ICRAA requirements for\nconspicuousness but not for clarity. For these reasons, and\nthe reasons stated in our contemporaneously filed\nmemorandum disposition, we affirm in part and vacate in\npart the judgment of the district court, and we remand for\nfurther proceedings consistent with these dispositions. Each\nparty shall bear its own costs of appeal.\n\n AFFIRMED IN PART; VACATED IN PART;\nREMANDED.\n\fAppendix A\n\f Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49\n\n\n\n\n(5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013\n[END_CASE]", "role": "user" } ]
4,585,847		Michael Frost v. Bnsf Railway Company	2019-01-30	17-35513	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ferdinand F. Fernandez, N. Randy Smith, and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "CHRISTEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL A. FROST, No. 17-35513\n Plaintiff-Appellant,\n D.C. No.\n v. 9:15-cv-00124-DWM\n\nBNSF RAILWAY COMPANY,\n Defendant-Appellee. OPINION\n\n\n Appeal from the United States District Court\n for the District of Montana\n Donald W. Molloy, Senior District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Seattle, Washington\n\n Filed January 30, 2019\n\n Before: Ferdinand F. Fernandez, N. Randy Smith,\n and Morgan Christen, Circuit Judges.\n\n Opinion by Judge Christen\n\f2 FROST V. BNSF\n\n SUMMARY\n\n\n Labor Law\n\n The panel reversed the district court’s judgment, after a\njury trial, in favor of the defendant in an action under the\nFederal Railroad Safety Act and remanded for a new trial.\n\n Michael Frost alleged that BNSF Railway Co. violated\nthe FRSA when it disciplined and ultimately terminated him\nafter he committed a pair of safety rule violations and filed an\ninjury report. At trial, the district court instructed the jury\nthat BNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\n\n The panel held that the “honest belief” jury instruction\nwas inconsistent with the FRSA’s clear statutory mandate\nand prior caselaw. To establish a claim of unlawful\ndiscrimination under the FRSA, a plaintiff must prove by a\npreponderance of the evidence that his protected conduct was\na contributing factor in an adverse employment action. The\npanel held that there is no separate requirement that the\nplaintiff prove that his employer acted with discriminatory\nintent. Rather, by proving that an employee’s protected\nactivity contributed in some way to the employer’s adverse\nconduct, the FRSA plaintiff has proven that the employer\nacted with some level of retaliatory intent. The panel held\nthat the “honest belief” jury instruction therefore misstated\nthe applicable law, and BNSF did not rebut the presumption\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f FROST V. BNSF 3\n\nof prejudice. Accordingly, the panel reversed the district\ncourt’s determination and remanded for a new trial.\n\n\n COUNSEL\n\nLucas J. Kaster (argued) and James H. Kaster, Nichols Kaster\nLLP, Minneapolis, Minnesota, for Plaintiff-Appellant.\n\nBryan P. Neal (argued), Thompson & Knight LLP, Dallas,\nTexas; Keith M. Gorman, Hall & Evans LLC, Denver,\nColorado; Paul S. Balanon, General Attorney, BNSF Railway\nCompany, Fort Worth, Texas; for Defendant-Appellee.\n\n\n OPINION\n\nCHRISTEN, Circuit Judge:\n\n Michael Frost sued the BNSF Railway Company, alleging\nthat it violated the Federal Railroad Safety Act (FRSA) when\nit disciplined and ultimately terminated him after he\ncommitted a pair of safety rule violations and filed an injury\nreport. At trial, the district court instructed the jury that\nBNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\nThe jury returned a verdict for BNSF. We review the\npropriety of the “honest belief” jury instruction. Because it\nis inconsistent with the FRSA’s clear statutory mandate and\nour prior caselaw, we reverse and remand for a new trial.\n\f4 FROST V. BNSF\n\n I.\n\n BNSF is a large railway company that operates freight\ntrains throughout the United States. Due to the many\npotential hazards associated with powerful locomotives\noperating near train and track workers, BNSF imposes a\nnumber of safety rules on its employees to minimize risks and\nprevent injuries. Among other things, those rules prohibit\nemployees from approaching—or “fouling”—a track unless\nthey have the proper authority and a work-related reason to be\nnear the tracks.\n\n BNSF hired Frost as a track laborer in June 2011. Within\nthe first two years of his employment, Frost was disciplined\ntwice for fouling the track. The first violation occurred on\nApril 18, 2012. Frost was working with a crew that was\nrepairing a section of track near Brimstone, Montana. The\ncrew was removing and replacing a side track that ran\nadjacent to a main line. The crew members secured track\nauthority—i.e., permission to be near the tracks because no\ntrains would be running on the tracks—for both tracks at the\nstart of their shift in order to move their equipment into\nposition on the side track. The crew’s foreman, George\nSchultz, released the crew’s track authority for the main line\nonce the equipment was in place on the side track, but he\napparently failed to relay that information to Frost or the rest\nof the work crew.\n\n During the course of the shift, Frost believed that the\nrepair equipment was not being anchored properly so he\nmoved toward the main line track to get a better view. At that\npoint, a train traveling approximately 60 miles per hour\npassed by on the main line, narrowly missing Frost. The\ncrew stopped working and Frost was taken to the hospital for\n\f FROST V. BNSF 5\n\nexamination. On April 20, 2012, BNSF issued a notice of\ninvestigation to Frost and Schultz regarding the near-miss\nincident. Frost returned to work a few days later and filed an\ninjury report describing his injury as “PTSD following a\ntraumatic incident.”\n\n BNSF held a disciplinary hearing in July 2012. Frost\nargued at the hearing that he was being singled out because\nseveral of his fellow laborers (who had not filed injury\nreports) acknowledged that they were also near the track but\nthey were not disciplined. Frost also claimed that inspecting\nthe equipment’s anchoring pattern was a legitimate job-\nrelated reason for approaching the main line. The hearing\nofficer, Robert Rindy, rejected both arguments. Rindy\nreviewed video from the train which showed no other\nlaborers near the main line track. He also concluded that\nFrost could have checked the anchoring pattern from other\nlocations without approaching the main line track. Because\nRindy determined that Frost fouled the track and committed\na Level S (Serious) safety violation, Frost received a 30-day\nrecord suspension and was placed on a 36-month review\nperiod for that incident.1 On October 9, 2012, Frost\nresponded by filing an FRSA retaliation complaint with\nOSHA.\n\n Frost’s second track violation occurred on November 8,\n2012, when he was working on a crew in Wyoming as a\ngrapple truck driver. Frost arrived at the work site and parked\nhis truck by a railroad crossing with the back end of the truck\noverhanging the track. Frost then entered a trailer where\nseveral other BNSF employees were located, and apparently\nsaid something like “I guess I better get the authority since\n\n 1\n Schultz, the crew foreman, was also disciplined for this incident.\n\f6 FROST V. BNSF\n\nI’m already fouling the track.” Because BNSF employees are\nrequired to know the precise details of their track authority\nbefore fouling a track, the other employees became concerned\nand a supervisor was called. The supervisor spoke with Frost\nand determined that he did not appear to have secured track\nauthority before parking his truck. The supervisor removed\nFrost from service and reported the incident to Keith\nSamples, a division manager.\n\n BNSF issued a notice of investigation and conducted a\nhearing regarding the second incident in January of 2013.\nFollowing the hearing, Samples found that Frost did not know\nthe details of his track authority and that he had violated\nBNSF safety rules. Samples then concluded that Frost should\nbe discharged due to the seriousness of the violation and the\nfact that it occurred so soon after the first disciplinary\nincident. It is undisputed that Frost would not have been\ndischarged if the first incident had not occurred.\n\n Frost requested reinstatement. After an internal review,\nBNSF decided to reinstate Frost, due to a concern that BNSF\nwould not be able to justify the discipline imposed for the\nApril 2012 incident if Frost challenged his dismissal before\nan arbitrator. Frost was reinstated, with back pay, and BNSF\nremoved the April 2012 disciplinary incident from his record.\n\n Nevertheless, Frost filed suit in September of 2015\nalleging retaliation under the FRSA for Frost’s engagement\nin protected activities—i.e., for reporting the PTSD injury\nfollowing the first incident and for filing an OSHA complaint\nalleging disciplinary retaliation shortly thereafter. Frost’s\ncomplaint alleged that these protected activities were\ncontributing factors to BNSF’s decision to terminate him, and\n\f FROST V. BNSF 7\n\nhe sought an award of emotional distress damages, punitive\ndamages, and attorney’s fees.\n\n The matter was tried to a jury over four days. At trial,\nRindy testified that he disciplined Frost because such\ndiscipline was required by BNSF’s employee performance\naccountability policy, and not because Frost had filed an\ninjury report or engaged in any other protected activities.\nAnd Samples testified that when he decided in 2013 that Frost\nshould be discharged, he was not aware that Frost had filed an\nOSHA complaint concerning the first incident. At the close\nof the evidence, the trial court instructed the jury, over Frost’s\nobjection, that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\nThe jury returned a verdict in favor of BNSF.\n\n Frost moved for a new trial, arguing that the honest belief\njury instruction was erroneous and that it substantially\nprejudiced him. He also argued the he deserved a new trial\nbecause BNSF improperly withheld evidence regarding a\npotential retaliatory motive for terminating him—a\n“scorecard” policy that rated each manager, in part, on the\nnumber of injuries that occurred on his or her watch. The\ntrial court acknowledged that BNSF appeared to “have hidden\nthe ball” by not producing the scorecard policy in discovery,\nbut it found no prejudice. The district court was also\n\f8 FROST V. BNSF\n\nunpersuaded by Frost’s challenge to the honest belief\ninstruction. Frost appealed.2\n\n II.\n\n We review de novo whether a jury instruction properly\nstates the elements that must be proved at trial. Chuman v.\nWright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is\nerroneous when, viewing the instructions as a whole, the\n“substance of the applicable law was [not] fairly and correctly\ncovered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d\n1336, 1339 (9th Cir. 1986) (alteration in original and citation\nomitted). If there is an error, we presume that the error was\nprejudicial and the non-moving party bears the burden of\nestablishing that “it is more probable than not” that a properly\ninstructed jury “would have reached the same verdict.”\nGaldamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)\n(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.\n2005)) (internal quotation marks omitted).\n\n III.\n\n We first examine the appropriate standards governing a\nclaim of unlawful discrimination under the FRSA. As we\nrecently explained in Rookaird v. BNSF Railway Co.,\n908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the\n\n\n\n\n 2\n Because we reverse the district court’s denial of Frost’s request for\na new trial on the basis of the erroneous honest belief jury instruction, we\ndo not address Frost’s claim that he is also entitled to a new trial because\nBNSF withheld relevant and material documents in discovery.\n\f FROST V. BNSF 9\n\nAIR-213 framework set forth in 49 U.S.C. § 42121(b) for\nclaims of unlawful discrimination. Id. at 459.4\n\n To establish a claim of unlawful discrimination under\nthe FRSA, the plaintiff must prove by a preponderance of\nthe evidence that his or her protected conduct “was a\ncontributing factor in the unfavorable personnel action\nalleged in the complaint.” Id. at 460 (citing 49 U.S.C.\n§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,\nwhich alone or in connection with other factors, tends to\naffect in any way the outcome of the decision.” Rookaird,\n908 F.3d at 461 (internal quotation marks omitted). If the\nplaintiff succeeds, the employer can attempt to rebut the\nallegations and defeat the claim by demonstrating “by clear\nand convincing evidence that the employer would have taken\nthe same unfavorable personnel action in the absence of [the\nprotected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).\n\n Importantly, the only burden the statute places on FRSA\nplaintiffs is to ultimately prove, by a preponderance of the\nevidence, that their protected conduct was a contributing\nfactor to the adverse employment action—i.e., that it\n\n\n 3\n “AIR-21” refers to the Wendell H. Ford Aviation Investment and\nReform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61\n(2000), which includes protections for whistleblowers and prohibits\ndiscrimination against an air carrier employee who reports information\nrelated to air carrier safety. Congress expressly adopted the same standard\nfor the FRSA. 49 U.S.C. § 20109(d)(2).\n 4\n We are aware that under this framework there are two stages, a\nprima facie stage and a substantive stage. We are here concerned\nprimarily with the substantive stage, as this appeal causes us to consider\nonly whether the honest belief instruction altered the substance of what\nneeded to be proven at trial.\n\f10 FROST V. BNSF\n\n“tend[ed] to affect” the decision in some way. Id.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.\n\n BNSF argues that the FRSA is a “discrimination statute”\nand that plaintiffs must therefore affirmatively prove that\ntheir employers acted with discriminatory intent or animus in\norder to bring claims for unlawful retaliation. We recognize\nthat the FRSA, by its terms, describes and forbids intentional\nretaliation, 49 U.S.C. § 20109(a), meaning that employers\nmust act with impermissible intent or animus to violate the\nstatute. What BNSF misses is that the only proof of\ndiscriminatory intent that a plaintiff is required to show is that\nhis or her protected activity was a “contributing factor” in the\nresulting adverse employment action. Showing that an\nemployer acted in retaliation for protected activity is the\nrequired showing of intentional discrimination; there is no\nrequirement that FRSA plaintiffs separately prove\ndiscriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,\nin Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we\nreviewed claims under the Energy Reorganization Act’s\nwhistleblower retaliation protections that employ the same\nstatutory framework as the FRSA. Id. at 480. We explained:\n“Under this framework, the presence of an employer’s\nsubjective retaliatory animus is irrelevant. All a plaintiff\nmust show is that his ‘protected activity was a contributing\nfactor in the adverse [employment] action.’” Id. at 482\n(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).\nCoppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also\ninvolved a retaliation claim arising in the context of a statute\nwith the same “contributing factor” framework. There, we\nexplained that to meet her burden at the prima facie stage a\nplaintiff need not “conclusively demonstrate the employer’s\nretaliatory motive.” Id. at 750 (emphasis added). Rather, the\nemployer’s retaliatory motive was established by proving that\n\f FROST V. BNSF 11\n\nthe protected conduct was a contributing factor to the\nemployer’s adverse action.\n\n More recently, in Rookaird, we quoted the Eighth\nCircuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d\n786 (8th Cir. 2014), and said that “‘the contributing factor\nthat an employee must prove is intentional retaliation\nprompted by the employee engaging in protected activity.’”\nRookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at\n791) (alteration omitted). BNSF cites this language from the\nKuduk decision to argue that the FRSA requires proof of\ndiscriminatory animus, separate from and beyond the\nstatutorily required evidence that the plaintiff’s protected\nconduct was a contributing factor in the adverse employment\naction. But as Tamosaitis and Coppinger-Martin have\nshown, we have already rejected that premise as inconsistent\nwith the FRSA’s articulation of each party’s required\nevidentiary burden. In fact, in Kuduk, the Eighth Circuit\nrelied on our Coppinger-Martin decision and acknowledged\nthat plaintiff need not provide “conclusive[]” proof of the\nemployer’s animus to establish the plaintiff’s prima facie\ncase. See Kuduk, 768 F.3d at 791. Rookaird’s citation to\nKuduk does not imply, much less impose, an obligation to\nprove retaliatory intent that is not included within the FRSA’s\nclear and explicit statutory scheme. Instead, Rookaird simply\nconfirms that although intent or animus is part of an FRSA\nplaintiff’s case, showing that plaintiff’s protected conduct\nwas a contributing factor is the required showing of intent or\n“intentional retaliation[.]” Id. That is, by proving that an\nemployee’s protected activity contributed in some way to the\nemployer’s adverse conduct, the FRSA plaintiff has proven\nthat the employer acted with some level of retaliatory intent.\n\f12 FROST V. BNSF\n\n Consistent with the language of 49 U.S.C.\n§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,\nCoppinger-Martin, and Rookaird, we hold that although the\nFRSA’s prohibition on “discriminat[ing] against an\nemployee” ultimately requires a showing of the employer’s\ndiscriminatory or retaliatory intent, FRSA plaintiffs satisfy\nthat burden by proving that their protected activity was a\ncontributing factor to the adverse employment decision.5\nThere is no requirement, at either the prima facie stage or the\nsubstantive stage, that a plaintiff make any additional\nshowing of discriminatory intent.\n\n IV.\n\n A.\n\n Frost argues that the district court’s honest belief jury\ninstruction misstated the applicable law. We agree.\n\n The district court instructed the jury that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\n\n 5\n This holding is consistent with recent authority from the Third\nCircuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,\n158 (3d Cir. 2013), but we recognize that it may conflict with authority\nfrom the Seventh and Eighth Circuits. However, we are bound by our\nprior caselaw as well as the explicit statutory language of 49 U.S.C.\n§§ 20109(d) and 42121(b)(2)(B).\n\f FROST V. BNSF 13\n\n That instruction is not consistent with the FRSA’s\nstatutory scheme. Frost needed to prove only that his\nprotected conduct (filing an injury report and an OSHA\ncomplaint) was a contributing factor to his ultimate\ntermination. To rebut Frost’s case, BNSF had to prove that\nthe same discipline would have been imposed with or without\nthe injury report or the OSHA complaint. See 49 U.S.C.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This\nnecessarily means it was possible for Frost to show retaliation\neven if BNSF had an honestly-held, justified belief that he\nfouled the track. Frost was not required to show that his\ninjury report was the only reason or that no other factors\ninfluenced BNSF’s decision to terminate him. Nor does the\ninstruction’s use of “based on” foreclose the possibility that\nan impermissible factor or consideration contributed to the\ndecision to discipline Frost. As Rookaird explained,\n“contributing factors” may be quite modest—they include\n“any factor” which “tends to affect in any way the outcome\nof the decision.” Id. at 461 (internal quotation marks\nomitted). Under the AIR-21 standard, Frost would be entitled\nto relief even if his filing of an injury report played only a\nvery small role in BNSF’s decision-making process.\n\n Instructing the jurors that they could find for BNSF by\nlooking only at whether BNSF honestly believed that Frost\nbroke a rule risked denying Frost a remedy to which he may\nbe entitled under the statute, particularly because the evidence\nhere appears to show relatively clearly that Frost fouled the\ntrack. The instruction may have encouraged the jury to skirt\nthe actual issue and improperly focus on whether discipline\nwas justified for Frost’s safety violation instead of whether\nhis protected conduct “tend[ed] to affect in any way” the\ndecision to terminate him. Id. (internal quotation marks\nomitted). The instruction may have short-circuited the jury’s\n\f14 FROST V. BNSF\n\ndeliberation by offering a path to finding for BNSF without\nrequiring that it assess all of the relevant statutory burdens.\n\n BNSF argues that honest belief instructions have been\napproved in FRSA cases, citing Armstrong v. BNSF Railway\nCo., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury\nwas instructed that:\n\n Defendant cannot be held liable under the\n FRSA if you conclude that Defendant\n terminated Plaintiff’s employment based on\n its honestly held belief that Plaintiff did not\n engage in protected activity under the FRSA\n in good faith.\n\nId. at 381 (emphasis added).\n\n Armstrong does not help BNSF because the primary\ndispute in that case was about whether the plaintiff had\nactually engaged in protected conduct in the first place, not\nwhether the protected conduct was a contributing factor to the\nplaintiff’s discipline. Id. at 382. Because there was evidence\nin Armstrong that the employer may have honestly believed\nthat the employee did not engage in protected activity,\nArmstrong’s honest belief instruction was not improper. That\nsaid, the only conclusion to be drawn from Armstrong is the\nrecognition that it would not be possible to show that an\nemployer retaliated in response to an employee engaging in\nprotected activity if the employer could demonstrate that it\nhonestly believed no protected activity had occurred.6\n\n\n 6\n Even under the circumstances in Armstrong, we note that the\nSeventh Circuit only tepidly approved the instruction as not the “clearest\npossible statement of the applicable law[.]” 880 F.3d at 382.\n\f FROST V. BNSF 15\n\n Because there was no dispute that Frost engaged in\nprotected conduct, Armstrong is distinguishable and the\ndistrict court’s use of the honest belief instruction was\ntherefore legally erroneous.\n\n B.\n\n We next determine whether the erroneous honest belief\ninstruction warrants a new trial.\n\n Frost provided evidence that other BNSF employees\nfouled the track during the April 2012 incident, but that they\ndid not file injury reports and were not disciplined. The\njurors could construe this evidence of unpunished track-\nfoulers as proof of disparate treatment and retaliatory\nconduct—i.e., that Frost’s injury report was a contributory\nfactor to his termination. However, the jurors also may have\nfound that evidence not very credible or they may have\ninstead believed the testimony of BNSF’s witnesses that\nFrost’s injury report played no part in the decision to\ndiscipline him. Though a properly instructed jury may have\nreached a verdict for BNSF, we must presume prejudice\nwhere an erroneous jury instruction is given. See Galdamez,\n415 F.3d at 1025. The burden at this stage is thus on BNSF\nto show it is more probable than not that the jury would have\nreached the same verdict without the honest belief instruction.\nId. BNSF does not satisfy that burden.\n\n BNSF’s counsel acknowledged during its argument\nbefore our court that we simply do not know exactly how the\njury evaluated the evidence in this case. The verdict form\nwas relatively sparse, asking only two questions: (1) whether\nFrost had met his prima facie case of showing his protected\nactivity was a contributing factor; and (2) whether BNSF\n\f16 FROST V. BNSF\n\nsuccessfully rebutted Frost’s case by showing that it would\nhave imposed the same disciplinary action with or without the\nprotected conduct. The jury answered “no” to the first\nquestion and did not answer the second.\n\n Because we do not know how the jurors applied the\nhonest belief instruction, we cannot find that the presumption\nof prejudice is rebutted. BNSF presented strong evidence\n(video from the train) that Frost fouled the track. The jurors\ntherefore may have felt it unnecessary to unravel any\npotential factual tensions—e.g., the dispute between Frost’s\nand BNSF’s witnesses about whether other laborers were\nfouling the track at the same time Frost was—or they might\nhave discounted questions about whether Frost’s injury report\nplayed any role (even if only a small one) in BNSF’s decision\nto discipline Frost. We also do not know whether the jurors\nconcluded that Frost would have been terminated whether or\nnot he filed an injury report because they did not reach that\nquestion on the verdict form. We are therefore bound to\npresume the improper instruction was prejudicial. See\nGaldamez, 415 F.3d at 1025.\n\n We also cannot conclude that the presence of other,\naccurate instructions eliminated the possibility that prejudice\nresulted from the honest belief instruction, although we\npresume that juries listen to and follow instructions, and we\nhave previously found an erroneous jury instruction to be\nharmless where the instructions as a whole were accurate.\nSee, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.\n1973). There is relatively clear evidence that Frost\ncommitted two safety violations, and the honest belief\ninstruction given here effectively allowed the jury to find for\nBNSF on that basis alone. Because the erroneous instruction\nprovided a shortcut that the jury may well have taken, the jury\n\f FROST V. BNSF 17\n\nmay not have decided whether Frost’s injury report was a\nfactor that contributed to his termination or whether BNSF\nwould have terminated him even if he had not reported an\ninjury. Accordingly, the other jury instructions in this case do\nnot rebut the presumption of prejudice.\n\n BNSF suggested during argument before our court that\nlay jury members would have understood the instruction’s use\nof “based on” to mean “solely or exclusively based on,” so the\njury must have concluded that Frost’s injury report was not a\nfactor (contributory or otherwise) to his termination. In our\nview, that is not an obvious or intuitive conclusion. It is just\nas likely that a lay juror would conclude that if a certain\nfactor was the primary cause of a given consequence, the\nconsequence was “based on” that factor, regardless of\nwhatever other causative factors were shown at trial. More\nimportantly, the record in this case does not permit much of\nan inference either way, and in the absence of more precise\nlanguage these (and perhaps other) interpretations of this\ninstruction were left available to the jury. BNSF’s\nspeculation about how the jury might have applied the\nerroneous honest belief instruction therefore cannot rebut the\npresumption of prejudice or effectively show it is more\nprobable than not that jurors would have reached the same\nverdict with or without the honest belief instruction.\nGaldamez, 415 F.3d at 1025.\n\n V.\n\n The honest belief instruction was legally erroneous and\nBNSF has failed to rebut the presumption that the improper\n\f18 FROST V. BNSF\n\ninstruction prejudiced Frost. Accordingly, we reverse the\ndistrict court’s determination and remand for a new trial.\n\n REVERSED AND REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363100/", "author_raw": "CHRISTEN, Circuit Judge:"}]}	FERDINAND F FERNANDEZ	N RANDY SMITH	MORGAN CHRISTEN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585847/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Michael Frost v. Bnsf Railway Company\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL A. FROST, No. 17-35513\n Plaintiff-Appellant,\n D.C. No.\n v. 9:15-cv-00124-DWM\n\nBNSF RAILWAY COMPANY,\n Defendant-Appellee. OPINION\n\n\n Appeal from the United States District Court\n for the District of Montana\n Donald W. Molloy, Senior District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Seattle, Washington\n\n Filed January 30, 2019\n\n Before: Ferdinand F. Fernandez, N. Randy Smith,\n and Morgan Christen, Circuit Judges.\n\n Opinion by Judge Christen\n\f2 FROST V. BNSF\n\n SUMMARY\n\n\n Labor Law\n\n The panel reversed the district court’s judgment, after a\njury trial, in favor of the defendant in an action under the\nFederal Railroad Safety Act and remanded for a new trial.\n\n Michael Frost alleged that BNSF Railway Co. violated\nthe FRSA when it disciplined and ultimately terminated him\nafter he committed a pair of safety rule violations and filed an\ninjury report. At trial, the district court instructed the jury\nthat BNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\n\n The panel held that the “honest belief” jury instruction\nwas inconsistent with the FRSA’s clear statutory mandate\nand prior caselaw. To establish a claim of unlawful\ndiscrimination under the FRSA, a plaintiff must prove by a\npreponderance of the evidence that his protected conduct was\na contributing factor in an adverse employment action. The\npanel held that there is no separate requirement that the\nplaintiff prove that his employer acted with discriminatory\nintent. Rather, by proving that an employee’s protected\nactivity contributed in some way to the employer’s adverse\nconduct, the FRSA plaintiff has proven that the employer\nacted with some level of retaliatory intent. The panel held\nthat the “honest belief” jury instruction therefore misstated\nthe applicable law, and BNSF did not rebut the presumption\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f FROST V. BNSF 3\n\nof prejudice. Accordingly, the panel reversed the district\ncourt’s determination and remanded for a new trial.\n\n\n COUNSEL\n\nLucas J. Kaster (argued) and James H. Kaster, Nichols Kaster\nLLP, Minneapolis, Minnesota, for Plaintiff-Appellant.\n\nBryan P. Neal (argued), Thompson & Knight LLP, Dallas,\nTexas; Keith M. Gorman, Hall & Evans LLC, Denver,\nColorado; Paul S. Balanon, General Attorney, BNSF Railway\nCompany, Fort Worth, Texas; for Defendant-Appellee.\n\n\n OPINION\n\nCHRISTEN, Circuit Judge:\n\n Michael Frost sued the BNSF Railway Company, alleging\nthat it violated the Federal Railroad Safety Act (FRSA) when\nit disciplined and ultimately terminated him after he\ncommitted a pair of safety rule violations and filed an injury\nreport. At trial, the district court instructed the jury that\nBNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\nThe jury returned a verdict for BNSF. We review the\npropriety of the “honest belief” jury instruction. Because it\nis inconsistent with the FRSA’s clear statutory mandate and\nour prior caselaw, we reverse and remand for a new trial.\n\f4 FROST V. BNSF\n\n I.\n\n BNSF is a large railway company that operates freight\ntrains throughout the United States. Due to the many\npotential hazards associated with powerful locomotives\noperating near train and track workers, BNSF imposes a\nnumber of safety rules on its employees to minimize risks and\nprevent injuries. Among other things, those rules prohibit\nemployees from approaching—or “fouling”—a track unless\nthey have the proper authority and a work-related reason to be\nnear the tracks.\n\n BNSF hired Frost as a track laborer in June 2011. Within\nthe first two years of his employment, Frost was disciplined\ntwice for fouling the track. The first violation occurred on\nApril 18, 2012. Frost was working with a crew that was\nrepairing a section of track near Brimstone, Montana. The\ncrew was removing and replacing a side track that ran\nadjacent to a main line. The crew members secured track\nauthority—i.e., permission to be near the tracks because no\ntrains would be running on the tracks—for both tracks at the\nstart of their shift in order to move their equipment into\nposition on the side track. The crew’s foreman, George\nSchultz, released the crew’s track authority for the main line\nonce the equipment was in place on the side track, but he\napparently failed to relay that information to Frost or the rest\nof the work crew.\n\n During the course of the shift, Frost believed that the\nrepair equipment was not being anchored properly so he\nmoved toward the main line track to get a better view. At that\npoint, a train traveling approximately 60 miles per hour\npassed by on the main line, narrowly missing Frost. The\ncrew stopped working and Frost was taken to the hospital for\n\f FROST V. BNSF 5\n\nexamination. On April 20, 2012, BNSF issued a notice of\ninvestigation to Frost and Schultz regarding the near-miss\nincident. Frost returned to work a few days later and filed an\ninjury report describing his injury as “PTSD following a\ntraumatic incident.”\n\n BNSF held a disciplinary hearing in July 2012. Frost\nargued at the hearing that he was being singled out because\nseveral of his fellow laborers (who had not filed injury\nreports) acknowledged that they were also near the track but\nthey were not disciplined. Frost also claimed that inspecting\nthe equipment’s anchoring pattern was a legitimate job-\nrelated reason for approaching the main line. The hearing\nofficer, Robert Rindy, rejected both arguments. Rindy\nreviewed video from the train which showed no other\nlaborers near the main line track. He also concluded that\nFrost could have checked the anchoring pattern from other\nlocations without approaching the main line track. Because\nRindy determined that Frost fouled the track and committed\na Level S (Serious) safety violation, Frost received a 30-day\nrecord suspension and was placed on a 36-month review\nperiod for that incident.1 On October 9, 2012, Frost\nresponded by filing an FRSA retaliation complaint with\nOSHA.\n\n Frost’s second track violation occurred on November 8,\n2012, when he was working on a crew in Wyoming as a\ngrapple truck driver. Frost arrived at the work site and parked\nhis truck by a railroad crossing with the back end of the truck\noverhanging the track. Frost then entered a trailer where\nseveral other BNSF employees were located, and apparently\nsaid something like “I guess I better get the authority since\n\n 1\n Schultz, the crew foreman, was also disciplined for this incident.\n\f6 FROST V. BNSF\n\nI’m already fouling the track.” Because BNSF employees are\nrequired to know the precise details of their track authority\nbefore fouling a track, the other employees became concerned\nand a supervisor was called. The supervisor spoke with Frost\nand determined that he did not appear to have secured track\nauthority before parking his truck. The supervisor removed\nFrost from service and reported the incident to Keith\nSamples, a division manager.\n\n BNSF issued a notice of investigation and conducted a\nhearing regarding the second incident in January of 2013.\nFollowing the hearing, Samples found that Frost did not know\nthe details of his track authority and that he had violated\nBNSF safety rules. Samples then concluded that Frost should\nbe discharged due to the seriousness of the violation and the\nfact that it occurred so soon after the first disciplinary\nincident. It is undisputed that Frost would not have been\ndischarged if the first incident had not occurred.\n\n Frost requested reinstatement. After an internal review,\nBNSF decided to reinstate Frost, due to a concern that BNSF\nwould not be able to justify the discipline imposed for the\nApril 2012 incident if Frost challenged his dismissal before\nan arbitrator. Frost was reinstated, with back pay, and BNSF\nremoved the April 2012 disciplinary incident from his record.\n\n Nevertheless, Frost filed suit in September of 2015\nalleging retaliation under the FRSA for Frost’s engagement\nin protected activities—i.e., for reporting the PTSD injury\nfollowing the first incident and for filing an OSHA complaint\nalleging disciplinary retaliation shortly thereafter. Frost’s\ncomplaint alleged that these protected activities were\ncontributing factors to BNSF’s decision to terminate him, and\n\f FROST V. BNSF 7\n\nhe sought an award of emotional distress damages, punitive\ndamages, and attorney’s fees.\n\n The matter was tried to a jury over four days. At trial,\nRindy testified that he disciplined Frost because such\ndiscipline was required by BNSF’s employee performance\naccountability policy, and not because Frost had filed an\ninjury report or engaged in any other protected activities.\nAnd Samples testified that when he decided in 2013 that Frost\nshould be discharged, he was not aware that Frost had filed an\nOSHA complaint concerning the first incident. At the close\nof the evidence, the trial court instructed the jury, over Frost’s\nobjection, that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\nThe jury returned a verdict in favor of BNSF.\n\n Frost moved for a new trial, arguing that the honest belief\njury instruction was erroneous and that it substantially\nprejudiced him. He also argued the he deserved a new trial\nbecause BNSF improperly withheld evidence regarding a\npotential retaliatory motive for terminating him—a\n“scorecard” policy that rated each manager, in part, on the\nnumber of injuries that occurred on his or her watch. The\ntrial court acknowledged that BNSF appeared to “have hidden\nthe ball” by not producing the scorecard policy in discovery,\nbut it found no prejudice. The district court was also\n\f8 FROST V. BNSF\n\nunpersuaded by Frost’s challenge to the honest belief\ninstruction. Frost appealed.2\n\n II.\n\n We review de novo whether a jury instruction properly\nstates the elements that must be proved at trial. Chuman v.\nWright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is\nerroneous when, viewing the instructions as a whole, the\n“substance of the applicable law was [not] fairly and correctly\ncovered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d\n1336, 1339 (9th Cir. 1986) (alteration in original and citation\nomitted). If there is an error, we presume that the error was\nprejudicial and the non-moving party bears the burden of\nestablishing that “it is more probable than not” that a properly\ninstructed jury “would have reached the same verdict.”\nGaldamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)\n(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.\n2005)) (internal quotation marks omitted).\n\n III.\n\n We first examine the appropriate standards governing a\nclaim of unlawful discrimination under the FRSA. As we\nrecently explained in Rookaird v. BNSF Railway Co.,\n908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the\n\n\n\n\n 2\n Because we reverse the district court’s denial of Frost’s request for\na new trial on the basis of the erroneous honest belief jury instruction, we\ndo not address Frost’s claim that he is also entitled to a new trial because\nBNSF withheld relevant and material documents in discovery.\n\f FROST V. BNSF 9\n\nAIR-213 framework set forth in 49 U.S.C. § 42121(b) for\nclaims of unlawful discrimination. Id. at 459.4\n\n To establish a claim of unlawful discrimination under\nthe FRSA, the plaintiff must prove by a preponderance of\nthe evidence that his or her protected conduct “was a\ncontributing factor in the unfavorable personnel action\nalleged in the complaint.” Id. at 460 (citing 49 U.S.C.\n§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,\nwhich alone or in connection with other factors, tends to\naffect in any way the outcome of the decision.” Rookaird,\n908 F.3d at 461 (internal quotation marks omitted). If the\nplaintiff succeeds, the employer can attempt to rebut the\nallegations and defeat the claim by demonstrating “by clear\nand convincing evidence that the employer would have taken\nthe same unfavorable personnel action in the absence of [the\nprotected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).\n\n Importantly, the only burden the statute places on FRSA\nplaintiffs is to ultimately prove, by a preponderance of the\nevidence, that their protected conduct was a contributing\nfactor to the adverse employment action—i.e., that it\n\n\n 3\n “AIR-21” refers to the Wendell H. Ford Aviation Investment and\nReform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61\n(2000), which includes protections for whistleblowers and prohibits\ndiscrimination against an air carrier employee who reports information\nrelated to air carrier safety. Congress expressly adopted the same standard\nfor the FRSA. 49 U.S.C. § 20109(d)(2).\n 4\n We are aware that under this framework there are two stages, a\nprima facie stage and a substantive stage. We are here concerned\nprimarily with the substantive stage, as this appeal causes us to consider\nonly whether the honest belief instruction altered the substance of what\nneeded to be proven at trial.\n\f10 FROST V. BNSF\n\n“tend[ed] to affect” the decision in some way. Id.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.\n\n BNSF argues that the FRSA is a “discrimination statute”\nand that plaintiffs must therefore affirmatively prove that\ntheir employers acted with discriminatory intent or animus in\norder to bring claims for unlawful retaliation. We recognize\nthat the FRSA, by its terms, describes and forbids intentional\nretaliation, 49 U.S.C. § 20109(a), meaning that employers\nmust act with impermissible intent or animus to violate the\nstatute. What BNSF misses is that the only proof of\ndiscriminatory intent that a plaintiff is required to show is that\nhis or her protected activity was a “contributing factor” in the\nresulting adverse employment action. Showing that an\nemployer acted in retaliation for protected activity is the\nrequired showing of intentional discrimination; there is no\nrequirement that FRSA plaintiffs separately prove\ndiscriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,\nin Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we\nreviewed claims under the Energy Reorganization Act’s\nwhistleblower retaliation protections that employ the same\nstatutory framework as the FRSA. Id. at 480. We explained:\n“Under this framework, the presence of an employer’s\nsubjective retaliatory animus is irrelevant. All a plaintiff\nmust show is that his ‘protected activity was a contributing\nfactor in the adverse [employment] action.’” Id. at 482\n(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).\nCoppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also\ninvolved a retaliation claim arising in the context of a statute\nwith the same “contributing factor” framework. There, we\nexplained that to meet her burden at the prima facie stage a\nplaintiff need not “conclusively demonstrate the employer’s\nretaliatory motive.” Id. at 750 (emphasis added). Rather, the\nemployer’s retaliatory motive was established by proving that\n\f FROST V. BNSF 11\n\nthe protected conduct was a contributing factor to the\nemployer’s adverse action.\n\n More recently, in Rookaird, we quoted the Eighth\nCircuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d\n786 (8th Cir. 2014), and said that “‘the contributing factor\nthat an employee must prove is intentional retaliation\nprompted by the employee engaging in protected activity.’”\nRookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at\n791) (alteration omitted). BNSF cites this language from the\nKuduk decision to argue that the FRSA requires proof of\ndiscriminatory animus, separate from and beyond the\nstatutorily required evidence that the plaintiff’s protected\nconduct was a contributing factor in the adverse employment\naction. But as Tamosaitis and Coppinger-Martin have\nshown, we have already rejected that premise as inconsistent\nwith the FRSA’s articulation of each party’s required\nevidentiary burden. In fact, in Kuduk, the Eighth Circuit\nrelied on our Coppinger-Martin decision and acknowledged\nthat plaintiff need not provide “conclusive[]” proof of the\nemployer’s animus to establish the plaintiff’s prima facie\ncase. See Kuduk, 768 F.3d at 791. Rookaird’s citation to\nKuduk does not imply, much less impose, an obligation to\nprove retaliatory intent that is not included within the FRSA’s\nclear and explicit statutory scheme. Instead, Rookaird simply\nconfirms that although intent or animus is part of an FRSA\nplaintiff’s case, showing that plaintiff’s protected conduct\nwas a contributing factor is the required showing of intent or\n“intentional retaliation[.]” Id. That is, by proving that an\nemployee’s protected activity contributed in some way to the\nemployer’s adverse conduct, the FRSA plaintiff has proven\nthat the employer acted with some level of retaliatory intent.\n\f12 FROST V. BNSF\n\n Consistent with the language of 49 U.S.C.\n§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,\nCoppinger-Martin, and Rookaird, we hold that although the\nFRSA’s prohibition on “discriminat[ing] against an\nemployee” ultimately requires a showing of the employer’s\ndiscriminatory or retaliatory intent, FRSA plaintiffs satisfy\nthat burden by proving that their protected activity was a\ncontributing factor to the adverse employment decision.5\nThere is no requirement, at either the prima facie stage or the\nsubstantive stage, that a plaintiff make any additional\nshowing of discriminatory intent.\n\n IV.\n\n A.\n\n Frost argues that the district court’s honest belief jury\ninstruction misstated the applicable law. We agree.\n\n The district court instructed the jury that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\n\n 5\n This holding is consistent with recent authority from the Third\nCircuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,\n158 (3d Cir. 2013), but we recognize that it may conflict with authority\nfrom the Seventh and Eighth Circuits. However, we are bound by our\nprior caselaw as well as the explicit statutory language of 49 U.S.C.\n§§ 20109(d) and 42121(b)(2)(B).\n\f FROST V. BNSF 13\n\n That instruction is not consistent with the FRSA’s\nstatutory scheme. Frost needed to prove only that his\nprotected conduct (filing an injury report and an OSHA\ncomplaint) was a contributing factor to his ultimate\ntermination. To rebut Frost’s case, BNSF had to prove that\nthe same discipline would have been imposed with or without\nthe injury report or the OSHA complaint. See 49 U.S.C.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This\nnecessarily means it was possible for Frost to show retaliation\neven if BNSF had an honestly-held, justified belief that he\nfouled the track. Frost was not required to show that his\ninjury report was the only reason or that no other factors\ninfluenced BNSF’s decision to terminate him. Nor does the\ninstruction’s use of “based on” foreclose the possibility that\nan impermissible factor or consideration contributed to the\ndecision to discipline Frost. As Rookaird explained,\n“contributing factors” may be quite modest—they include\n“any factor” which “tends to affect in any way the outcome\nof the decision.” Id. at 461 (internal quotation marks\nomitted). Under the AIR-21 standard, Frost would be entitled\nto relief even if his filing of an injury report played only a\nvery small role in BNSF’s decision-making process.\n\n Instructing the jurors that they could find for BNSF by\nlooking only at whether BNSF honestly believed that Frost\nbroke a rule risked denying Frost a remedy to which he may\nbe entitled under the statute, particularly because the evidence\nhere appears to show relatively clearly that Frost fouled the\ntrack. The instruction may have encouraged the jury to skirt\nthe actual issue and improperly focus on whether discipline\nwas justified for Frost’s safety violation instead of whether\nhis protected conduct “tend[ed] to affect in any way” the\ndecision to terminate him. Id. (internal quotation marks\nomitted). The instruction may have short-circuited the jury’s\n\f14 FROST V. BNSF\n\ndeliberation by offering a path to finding for BNSF without\nrequiring that it assess all of the relevant statutory burdens.\n\n BNSF argues that honest belief instructions have been\napproved in FRSA cases, citing Armstrong v. BNSF Railway\nCo., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury\nwas instructed that:\n\n Defendant cannot be held liable under the\n FRSA if you conclude that Defendant\n terminated Plaintiff’s employment based on\n its honestly held belief that Plaintiff did not\n engage in protected activity under the FRSA\n in good faith.\n\nId. at 381 (emphasis added).\n\n Armstrong does not help BNSF because the primary\ndispute in that case was about whether the plaintiff had\nactually engaged in protected conduct in the first place, not\nwhether the protected conduct was a contributing factor to the\nplaintiff’s discipline. Id. at 382. Because there was evidence\nin Armstrong that the employer may have honestly believed\nthat the employee did not engage in protected activity,\nArmstrong’s honest belief instruction was not improper. That\nsaid, the only conclusion to be drawn from Armstrong is the\nrecognition that it would not be possible to show that an\nemployer retaliated in response to an employee engaging in\nprotected activity if the employer could demonstrate that it\nhonestly believed no protected activity had occurred.6\n\n\n 6\n Even under the circumstances in Armstrong, we note that the\nSeventh Circuit only tepidly approved the instruction as not the “clearest\npossible statement of the applicable law[.]” 880 F.3d at 382.\n\f FROST V. BNSF 15\n\n Because there was no dispute that Frost engaged in\nprotected conduct, Armstrong is distinguishable and the\ndistrict court’s use of the honest belief instruction was\ntherefore legally erroneous.\n\n B.\n\n We next determine whether the erroneous honest belief\ninstruction warrants a new trial.\n\n Frost provided evidence that other BNSF employees\nfouled the track during the April 2012 incident, but that they\ndid not file injury reports and were not disciplined. The\njurors could construe this evidence of unpunished track-\nfoulers as proof of disparate treatment and retaliatory\nconduct—i.e., that Frost’s injury report was a contributory\nfactor to his termination. However, the jurors also may have\nfound that evidence not very credible or they may have\ninstead believed the testimony of BNSF’s witnesses that\nFrost’s injury report played no part in the decision to\ndiscipline him. Though a properly instructed jury may have\nreached a verdict for BNSF, we must presume prejudice\nwhere an erroneous jury instruction is given. See Galdamez,\n415 F.3d at 1025. The burden at this stage is thus on BNSF\nto show it is more probable than not that the jury would have\nreached the same verdict without the honest belief instruction.\nId. BNSF does not satisfy that burden.\n\n BNSF’s counsel acknowledged during its argument\nbefore our court that we simply do not know exactly how the\njury evaluated the evidence in this case. The verdict form\nwas relatively sparse, asking only two questions: (1) whether\nFrost had met his prima facie case of showing his protected\nactivity was a contributing factor; and (2) whether BNSF\n\f16 FROST V. BNSF\n\nsuccessfully rebutted Frost’s case by showing that it would\nhave imposed the same disciplinary action with or without the\nprotected conduct. The jury answered “no” to the first\nquestion and did not answer the second.\n\n Because we do not know how the jurors applied the\nhonest belief instruction, we cannot find that the presumption\nof prejudice is rebutted. BNSF presented strong evidence\n(video from the train) that Frost fouled the track. The jurors\ntherefore may have felt it unnecessary to unravel any\npotential factual tensions—e.g., the dispute between Frost’s\nand BNSF’s witnesses about whether other laborers were\nfouling the track at the same time Frost was—or they might\nhave discounted questions about whether Frost’s injury report\nplayed any role (even if only a small one) in BNSF’s decision\nto discipline Frost. We also do not know whether the jurors\nconcluded that Frost would have been terminated whether or\nnot he filed an injury report because they did not reach that\nquestion on the verdict form. We are therefore bound to\npresume the improper instruction was prejudicial. See\nGaldamez, 415 F.3d at 1025.\n\n We also cannot conclude that the presence of other,\naccurate instructions eliminated the possibility that prejudice\nresulted from the honest belief instruction, although we\npresume that juries listen to and follow instructions, and we\nhave previously found an erroneous jury instruction to be\nharmless where the instructions as a whole were accurate.\nSee, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.\n1973). There is relatively clear evidence that Frost\ncommitted two safety violations, and the honest belief\ninstruction given here effectively allowed the jury to find for\nBNSF on that basis alone. Because the erroneous instruction\nprovided a shortcut that the jury may well have taken, the jury\n\f FROST V. BNSF 17\n\nmay not have decided whether Frost’s injury report was a\nfactor that contributed to his termination or whether BNSF\nwould have terminated him even if he had not reported an\ninjury. Accordingly, the other jury instructions in this case do\nnot rebut the presumption of prejudice.\n\n BNSF suggested during argument before our court that\nlay jury members would have understood the instruction’s use\nof “based on” to mean “solely or exclusively based on,” so the\njury must have concluded that Frost’s injury report was not a\nfactor (contributory or otherwise) to his termination. In our\nview, that is not an obvious or intuitive conclusion. It is just\nas likely that a lay juror would conclude that if a certain\nfactor was the primary cause of a given consequence, the\nconsequence was “based on” that factor, regardless of\nwhatever other causative factors were shown at trial. More\nimportantly, the record in this case does not permit much of\nan inference either way, and in the absence of more precise\nlanguage these (and perhaps other) interpretations of this\ninstruction were left available to the jury. BNSF’s\nspeculation about how the jury might have applied the\nerroneous honest belief instruction therefore cannot rebut the\npresumption of prejudice or effectively show it is more\nprobable than not that jurors would have reached the same\nverdict with or without the honest belief instruction.\nGaldamez, 415 F.3d at 1025.\n\n V.\n\n The honest belief instruction was legally erroneous and\nBNSF has failed to rebut the presumption that the improper\n\f18 FROST V. BNSF\n\ninstruction prejudiced Frost. Accordingly, we reverse the\ndistrict court’s determination and remand for a new trial.\n\n REVERSED AND REMANDED.\n[END_CASE]", "role": "user" } ]
4,586,037		Ezzard Ellis v. C. Harrison	2019-01-30	16-56188	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 30 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nEZZARD CHARLES ELLIS, No. 16-56188\n\n Petitioner-Appellant, D.C. No.\n 5:05-cv-00520-SJO-JEM\n v. Central District of California,\n Riverside\nC. M. HARRISON, Warden,\n ORDER\n Respondent-Appellee.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363290/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586037/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ezzard Ellis v. C. Harrison\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 30 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nEZZARD CHARLES ELLIS, No. 16-56188\n\n Petitioner-Appellant, D.C. No.\n 5:05-cv-00520-SJO-JEM\n v. Central District of California,\n Riverside\nC. M. HARRISON, Warden,\n ORDER\n Respondent-Appellee.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n[END_CASE]", "role": "user" } ]
9,022,984	Ezzard Charles ELLIS v. C. M. HARRISON, Warden	Ellis v. Harrison	2019-01-30	No. 16-56188	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Thomas", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016221/", "author_raw": ""}]}	THOMAS	THOMAS		0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022984/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Ezzard Charles ELLIS v. C. M. HARRISON, Warden\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,586,380		Anthony Booth v. United States	2019-01-31	16-17084	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mary M. Schroeder and Marsha S. Berzon, * Circuit Judges, and Sara Lee Ellis, ** District Judge.", "parties": "", "opinions": [{"author": "ELLIS, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nANTHONY K. BOOTH, in his own No. 16-17084\nright and on behalf of all statutory\nbeneficiaries, D.C. No.\n Plaintiff-Appellant, 2:11-cv-00901-\n SPL\n v.\n\nUNITED STATES OF AMERICA, OPINION\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Steven Paul Logan, District Judge, Presiding\n\n Argued and Submitted December 6, 2017\n San Francisco, California\n\n Filed January 31, 2019\n\f2 BOOTH V. UNITED STATES\n\n Before: Mary M. Schroeder and Marsha S. Berzon, \n Circuit Judges, and Sara Lee Ellis, * District Judge.\n\n Opinion by Judge Sara L. Ellis\n\n\n SUMMARY **\n\n\n Federal Tort Claims Act\n\n The panel affirmed the district court’s summary\njudgment in favor of the United States in a Federal Tort\nClaims Act (“FTCA”) action alleging that a United States\nagency negligently caused plaintiff’s father’s death while\nplaintiff was a minor.\n\n The district court found that the claims were time-barred\nbecause the minor’s representative submitted them too late.\nThe minor argued on appeal that his minority should have\noperated to toll the statute of limitations on his claims.\n\n The panel held that there is no minority tolling of the\nFTCA’s statute of limitations. The panel further held that\nthe Supreme Court’s decision in United States v. Wong, 135\n\n \n This case was submitted to a panel that included Judge Kozinski,\nwho retired. Following Judge Kozinski’s retirement, Judge Berzon was\ndrawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge\nBerzon has read the briefs and reviewed the record.\n\n \n The Honorable Sara Lee Ellis, United States District Judge for the\nNorthern District of Illinois, sitting by designation.\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f BOOTH V. UNITED STATES 3\n\nS. Ct. 1625 (2015), did not suggest, let alone hold, that\nminority tolling applied to the FTCA. The panel also held\nthat minority alone does not merit equitable tolling of the\nFTCA’s statute of limitations. Accordingly, the panel\naffirmed the district court’s judgment in favor of the\ngovernment.\n\n\n COUNSEL\n\nJohn P. Leader (argued), The Leader Law Firm, Tucson,\nArizona, for Plaintiff-Appellant.\n\nAnn E. Harwood (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth A.\nStrange, Acting United States Attorney; United States\nAttorney’s Office, Phoenix, Arizona; for Defendant-\nAppellee.\n\n\n OPINION\n\nELLIS, District Judge:\n\n Plaintiff-Appellant Anthony K. Booth claims that a\nUnited States agency negligently caused his father’s death\nwhile Booth was a minor. Because Booth was a minor, his\nmother, acting as his representative, sued the United States\npursuant to the Federal Tort Claims Act (“FTCA”),\n28 U.S.C. § 2671 et seq. The district court found that the\nclaims were time-barred because Booth’s representative\nsubmitted them too late. Booth appeals, arguing that\nminority should operate to toll the statute of limitations on\nhis claims. Because we conclude that prior decisions\nholding that there is no minority tolling for the FTCA’s\n\f4 BOOTH V. UNITED STATES\n\nstatute of limitations remain binding, and conclude that\nminority tolling is a separate statutory matter from equitable\ntolling, we affirm the district court’s decision.\n\nI. Procedural and Factual Background\n\n Booth’s father, also named Anthony Booth, died in a car\naccident on an Arizona highway on February 19, 2005. The\nyounger Booth was weeks from his tenth birthday when he\nlost his father.\n\n Booth’s mother, Marlene June, timely filed an\nAdministrative Form 95 with the Federal Highway\nAdministration (“FHWA”), and on May 5, 2011, filed suit\nagainst the United States in federal court in Arizona, on\nbehalf of Booth and other statutory beneficiaries (the late\nAnthony Booth’s mother, daughters, and other son), alleging\nthat a highway barrier that failed during the highway\naccident was not tested and approved in accord with FHWA\nrules. 1 Booth was fifteen years old when June filed the\nadministrative claim and sixteen years old at the time she\nfiled the lawsuit.\n\n The FTCA requires administrative exhaustion and sets\ntime limits for both exhaustion and the filing of a lawsuit.\n“An action shall not be instituted upon a claim against the\nUnited States for money damages for injury or loss of\nproperty or personal injury or death caused by the negligent\nor wrongful act or omission of any employee of the\nGovernment . . . unless the claimant shall have first\npresented the claim to the appropriate Federal agency and\n 1\n Booth later substituted in as named plaintiff when he turned 18,\nhence the title of this appeal. But for a good portion of the suit, June was\nthe named plaintiff. We refer in this opinion to the appropriate named\nplaintiff for the pertinent time period under discussion.\n\f BOOTH V. UNITED STATES 5\n\nhis claim shall have been finally denied by the agency in\nwriting and sent by certified or registered mail.” 28 U.S.C.\n§ 2675. “A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also\nbarred “unless action is begun within six months after the\ndate of mailing, by certified or registered mail, of notice of\nfinal denial of the claim by the agency to which it was\npresented.” Id. 2\n\n The Government moved to dismiss June’s case, arguing\nthat the FTCA’s statute of limitations could not be tolled.\nThe district court agreed, finding that the claim had accrued\nmore than two years before June presented it to the federal\nagency and holding that, under Ninth Circuit precedent, the\nFTCA’s statute of limitations is not subject to equitable\ntolling or tolling for minority of the injured party. June\nappealed.\n\n While June’s appeal was pending, an en banc panel of\nthis Court was considering Wong v. Beebe, 732 F.3d 1030\n(9th Cir. 2013) (en banc). Wong also involved tolling of the\nFTCA’s statute of limitations. The plaintiff-appellant in\nWong sought equitable tolling of the FTCA’s statute of\nlimitations for the time to file suit after bringing a claim to\nthe administrative agency. Id. at 1034. We held that the\nFTCA’s statute of limitations is not jurisdictional and is\nsubject to equitable tolling. Id. at 1047, overruling Marley\nv. United States, 567 F.3d 1030 (9th Cir. 2009).\n\n\n\n 2\n We refer to the two-year and six-month statute of limitations\ncollectively in this opinion as the FTCA’s statute of limitations.\n\f6 BOOTH V. UNITED STATES\n\n After Wong, the panel hearing June’s initial appeal\nissued a memorandum disposition that reversed the district\ncourt’s decision granting the Government’s motion to\ndismiss June’s lawsuit and remanded the issue of equitable\ntolling to the district court. June v. United States, 550 F.\nApp’x 505 (9th Cir. 2013) (unpublished decision). The\nGovernment then sought certiorari for both that decision and\nWong.\n\n The Supreme Court took both cases, addressing and\naffirming them both and ruling that the FTCA’s statute of\nlimitations (both the two-year time limit after accrual for\npresenting claims to the administrative agency and the six-\nmonth time limit for suit after denial of a claim by an agency)\nis not jurisdictional, but instead is subject to equitable\ntolling. United States v. Wong (“Wong/June”), — U.S. —,\n135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme\nCourt remanded June’s case.\n\n June’s case resumed in district court. Booth, having\nreached the age of majority by this time, substituted in as\nnamed plaintiff. The Government then moved for summary\njudgment, arguing that Booth’s claim was barred by the\nFTCA’s statute of limitations because June, as Booth’s\nrepresentative, did not file a claim with the administrative\nagency until more than five years after Booth’s father’s car\naccident and there were no circumstances that called for\nequitable tolling. Booth cross-moved for summary\njudgment, arguing that the statute of limitations should be\ntolled because the nature of the Government’s involvement\nin the car accident had been concealed, and because Booth\nhad been a minor at the time of the accident, at the time June\nfiled an administrative claim, and at the time June filed suit.\n\n The district court granted the Government’s motion for\nsummary judgment. The district court held, as it had\n\f BOOTH V. UNITED STATES 7\n\ndetermined before the appeal, that Booth’s claim accrued on\nthe day of his father’s accident, February 19, 2005, and that\nBooth had submitted his claim to the FHWA more than two\nyears later, through his mother June, on December 16, 2010.\nThe district court concluded that Booth could not equitably\ntoll the statute of limitations on concealment grounds and\nalso that Booth had waived any argument that his age tolled\nthe statute of limitations, as he had failed to raise the issue in\nthe prior appeal. Booth moved for reconsideration. The\ndistrict court denied the motion, and Booth timely appealed.\n\nII. Standard of Review\n\n The Court reviews the district court’s grant of summary\njudgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,\n871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same\nstandard used by the district court and “view the evidence in\nthe light most favorable to the nonmoving party, determine\nwhether there are any genuine issues of material fact, and\ndecide whether the district court correctly applied the\nrelevant substantive law.” Animal Legal Def. Fund v. U.S.\nFood & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).\n\nIII. Analysis\n\n On appeal, Booth asserts that his status as a minor during\nmost of these proceedings tolls the FTCA’s statute of\nlimitations—specifically that portion of the statute of\nlimitations that requires a plaintiff to file a claim with the\nresponsible agency within two years of the accrual of the\n\f8 BOOTH V. UNITED STATES\n\nclaim. 3 28 U.S.C. § 2401(b). No longer considered\njurisdictional, the FTCA’s statute of limitations can now be\ntolled, Wong, 732 F.3d at 1047, including for equitable\nconsiderations, Wong/June, 135 S. Ct. at 1633 (“The time\nlimits in the FTCA are just time limits, nothing more. Even\nthough they govern litigation against the Government, a\ncourt can toll them on equitable grounds.”). Booth argues\nthat minority tolling—the rule applicable in many\ncircumstances that statutes of limitations are tolled during\nthe minority of the would-be plaintiff—should be applicable\nunder the FTCA. He also maintains being a minor is\nsufficient for equitable tolling of the FTCA’s statute of\nlimitations.4\n\n\n 3\n Booth does not challenge on appeal the district court’s decision\nthat the government’s alleged concealment does not justify equitable\ntolling.\n\n In his briefing, Booth did not challenge the district court’s\ndetermination that his claim accrued on the day of the accident. Because\nhe raised the issue for the first time at argument, he has waived it. See\nHarger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).\n 4\n We can dispose of two issues at the outset. The first is the\nGovernment’s argument that the district court properly found that Booth\nhad waived the issue of minority tolling. Wong and Wong/June changed\nthe Ninth Circuit’s previous rule precluding any tolling of the FTCA\nstatute of limitations, so Booth could not have waived the question of\nhow that change affects minority tolling. See Gallardo v. United States,\n755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived\nwhen not raised before Wong). The second is Booth’s argument that\nArizona’s minority tolling statute applies and tolls the FTCA’s statute of\nlimitations. State rules on minority tolling do not apply. “A court must\nlook to state law for the purpose of defining the actionable wrong for\nwhich the United States shall be liable, but to federal law for the\nlimitations of time within which the action must be brought.” Poindexter\nv. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.\n\f BOOTH V. UNITED STATES 9\n\n A. The Rule Against Minority Tolling of the FTCA’s\n Statute of Limitations Should Continue to Apply\n\n Minority tolling statutes provide that if a cause of action\naccrues when a plaintiff is a child, the statute of limitations\non that cause of action is suspended until the plaintiff attains\nthe age of majority. The policy reason underlying such\nstatutes, as enunciated by one state appellate court in this\nCircuit, is “[b]ecause a minor does not have the\nunderstanding or experience of an adult, and because a minor\nmay not bring an action except through a guardian . . .\nspecial safeguards are required to protect the minor’s right\nof action.” W. Shield Investigations & Sec. Consultants v.\nSuperior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)\n(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,\n426 (Ct. App. 1979)), disapproved of on other grounds by\nGatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.\n2002). The states in this Circuit all have statutes providing\nfor minority tolling for state-law tort claims. See Alaska\nStat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.\nCiv. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho\nCode § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.\nStat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.\nCode § 4.16.190(1).\n\n As the Fourth Circuit has recognized, “[t]he blackletter\nrule . . . is that a statute of limitations runs against all\npersons, even those under a disability, unless the statute\nexpressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,\n80 (4th Cir. 1994). The Supreme Court long ago recognized\nthis rule as extending to minority tolling: “The exemptions\nfrom the operation of statutes of limitations, usually\n\nBaeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law\ntolling statutes do not apply to the FTCA’s limitations period.”).\n\f10 BOOTH V. UNITED STATES\n\naccorded to infants . . . , do not rest upon any general\ndoctrine of the law . . . but in every instance upon express\nlanguage in those statutes giving them time, after majority\n. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,\n521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United\nStates v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)\n(“The federal courts have consistently rejected requests to\ncreate tolling exceptions for minors, reasoning that in the\nabsence of an express legislative directive to the contrary,\nparents and guardians are assumed to be adequate\nsurrogates.”). Federal courts have consistently applied\nVance, following minority tolling for federal statutes of\nlimitations only if the statute setting out the limitations\nperiod so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;\nVogel, 23 F.3d at 80.\n\n Consistent with the Vance principle, we have never\nrecognized minority tolling for the FTCA’s statute of\nlimitations. See Papa v. United States, 281 F.3d 1004, 1001\n(9th Cir. 2002) (“The time limitation for FTCA claims is not\ntolled during a claimant’s minority.”); Landreth ex rel. Ore\nv. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The\nfact of minority does not toll the statute.”); Fernandez v.\nUnited States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that\nno minority tolling applies under the FTCA); Mann v. United\n\n 5\n Minority tolling may be available for federal causes of action that\nborrow the statute of limitations from state law such as § 1983, but only\nif the relevant state law also includes a minority tolling provision and\nthat provision is not “inconsistent with the federal policy underlying the\ncause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.\nTomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);\nsee also Bishop v. Children’s Ctr. for Developmental Enrichment,\n618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling\nprovisions do not apply to the FTCA’s limitations period. See\nPoindexter v. United States, 647 F.2d at 36.\n\f BOOTH V. UNITED STATES 11\n\nStates, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time\nlimitation is not tolled during a claimant’s minority.”);\nBrown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)\n(“It is well established that minority does not toll the\nlimitations period prescribed in the Federal Tort Claims\nAct.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.\n1965) (refusing to toll the FTCA’s statute of limitations for\na minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.\n1956) (same).\n\n Congress, if so minded, may establish exceptions for\ncertain disabilities—including minority—and has done so in\nvarious federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);\n28 U.S.C. § 2501. By contrast, the FTCA began with a\nstatute of limitations that was “without express qualification\nfor legal disability,” and each time Congress amended the\nlimitation period, it did not add a tolling provision. Glenn,\n231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,\nCongress considered proposed amendments providing for\nminority tolling of the FTCA’s statute of limitations. E.g.,\nH.R. 3260, 3261, 101st Cong. (1989). But these proposed\namendments have not become law. Had Congress wanted to\ninclude minority tolling in the FTCA’s statute of limitations,\nit could have done so.\n\n Booth asks that we ignore the prior FTCA case law\nrejecting minority tolling here, arguing that Wong/June\nrequires that we abandon sixty years of precedent.\nWong/June says nothing to indicate that our past decisions\non this discrete issue are incorrect. The Supreme Court was\nsilent on minority tolling. And we have grounded our rule\nagainst minority tolling in part on considerations\nindependent of whether the FTCA’s statute of limitations is\njurisdictional. Our case law emphasizes that Congress does\nnot appear to have intended to expand that waiver of\n\f12 BOOTH V. UNITED STATES\n\nimmunity for the entire time an injured party is a minor. See\nPittman, 341 F.2d at 741 (“We do not believe that the\nCongress could have intended that infants have up to\n21 years for a statute of limitations.”). Under these cases,\nthe parent or guardian holds a legal duty to take action on\nbehalf of the minor child. Landreth, 850 F.2d at 534. The\nparent’s knowledge of the injury and its cause is imputed to\nthe minor, leaving the parent responsible for initiation of suit\nin a timely manner. Id. These considerations have no\nrelation to whether the statute of limitations is\njurisdictional. 6 In short, the Supreme Court’s decision in\nWong/June does not suggest, let alone hold, that minority\ntolling applies to the FTCA.\n\n As Booth recognizes, the statute of limitations for non-\ntort claims brought against the United States, which is also\nfound under § 2401, does contain a tolling provision. See\n28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of\ntitle 41, every civil action commenced against the United\nStates shall be barred unless the complaint is filed within six\nyears after the right of action first accrues. The action of any\nperson under legal disability or beyond the seas at the time\nthe claim accrues may be commenced within three years\nafter the disability ceases.”). Although, on its face, the\nsecond sentence of subsection (a) is generic, we held in\nGlenn that it is not. See 231 F.2d at 886. Glenn noted that,\nalthough both § 2401(a) and § 2401(b) are now contained in\nthe same statute, they did not begin that way. See id. Based\n\n 6\n Our sister circuits would appear to agree. The Third and Eight\nCircuits recognized before Wong/June that the FTCA’s statute of\nlimitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt\nv. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,\nthese circuits held that minority tolling of the FTCA’s statute of\nlimitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.\nWilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).\n\f BOOTH V. UNITED STATES 13\n\non the legislative history of § 2401 and the sources of\nsubsections (a) and (b), Glenn concluded that Congress did\nnot intend “that the sentence in [§ 2401(a)] qualified the\nlimitation on tort claims set forth in [§ 2401(b)].” Id.\n\n Booth asks us to overrule Glenn. Putting aside that\nBooth raised this argument for the first time at oral\nargument, thus waiving it, we may not overrule Glenn, as\nthere is no Supreme Court or en banc case inconsistent with\nit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)\n(en banc).\n\n Moreover, applying subsection (a)’s tolling provision to\nclaims covered by subsection (b) would create an anomaly.\nUnder that interpretation, a formerly disabled plaintiff would\nhave three years to file an action after the disability ceases,\nnotwithstanding subsection (b)’s requirement that such\nclaims be filed with the agency within two years after the\nclaim accrues. Compare 28 U.S.C. § 2401(a) (“The action of\nany person under legal disability or beyond the seas at the\ntime the claim accrues may be commenced within three\nyears after the disability ceases.” (emphasis added)), with id.\n§ 2401(b) (“A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” (emphasis added)). We can think of no reason\nCongress would have devised such a scheme.\n\n We therefore reject Booth’s argument that the tolling\nprovision in subsection (a) should apply to claims covered\nby subsection (b).\n\f14 BOOTH V. UNITED STATES\n\n B. Tolling for Minority Status Alone Is a Statutory\n Matter Separate from Equitable Tolling\n\n Separate and distinct from the statutory concept of\nminority tolling is equitable tolling. “[A] court may pause\nthe running of a limitations statute . . . when a party ‘has\npursued his rights diligently but some extraordinary\ncircumstance’ prevents him from meeting a deadline.”\nWong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya\nAlvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.\n2d 200 (2014)). This is the concept of equitable tolling. “In\napplying equitable tolling, courts ‘follow a tradition in which\ncourts of equity have sought to relieve hardships which, from\ntime to time, arise from a hard and fast adherence to more\nabsolute legal rules, which, if strictly applied, threaten the\nevils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting\nHolland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177\nL. Ed. 2d 130 (2010)).\n\n To obtain equitable tolling a litigant must establish\n“(1) that he has been pursuing his rights diligently, and\n(2) that some extraordinary circumstances stood in his way.”\nId. (citation omitted). The first element requires “the effort\nthat a reasonable person might be expected to deliver under\nhis or her particular circumstances,” id. (quoting Doe v.\nBusby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks\nwhether the plaintiff was “‘without any fault’ in pursuing his\nclaim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th\nCir. 1996)). The second element requires the litigant to\n“show that extraordinary circumstances were the cause of his\nuntimeliness and . . . made it impossible to file the document\non time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997\n(9th Cir. 2009)). “Whether a particular untimely claim may\nbe excused for a particular reason varies with the reason.”\nId. at 1051.\n\f BOOTH V. UNITED STATES 15\n\n As noted above, suspending a limitations period during\nminority has been available not as a result of equitable\ntolling but only where a statute expressly so provides. See\nVance, 108 U.S. at 521. Particular circumstances connected\nto one’s age could support equitable tolling. For example,\nthere may be cause for equitable tolling if a minor is\nabandoned by his parents and/or guardians and so left\nunprotected. Cf. Zavala ex rel. Ruiz v. United States,\n876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us\nthat the alleged abandonment left him unprotected . . . .”).\nLikewise, some states have recognized that equitable tolling\nmay be appropriate where a minor is “a ward of the state\nwithout a next friend or guardian of his estate” or “has a\nguardian of his person with interests possibly adverse to his\nown,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.\nCt. 1994), or where the cause of action is not reasonably\nknowable by the plaintiff or her parents because of her\nminority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.\n1994).\n\n Still, minority alone is not the type of exceptional\ncircumstance described above. In multiple cases involving\nminors with FTCA claims, this Court has considered\nwhether minority tolling applies (and held that it does not),\nand then separately considered whether equitable tolling\napplies and concluded that there was not a sufficient basis\nfor equitable tolling. See Papa, 281 F.3d at 1011; Zavala,\n876 F.2d at 784. In so ruling in Zavala, this Court noted that\nthe minor had “a parent who had both the duty to bring a\nclaim and the knowledge necessary to pursue it.” 876 F.2d\nat 784. Booth has shown no evidence to indicate that this\nwas not the case here as well, or to indicate any extraordinary\ncircumstances outside of the mere fact of his minority.\n\f16 BOOTH V. UNITED STATES\n\n Accordingly, we hold that there is no minority tolling of\nthe FTCA’s statute of limitations and that minority alone\ndoes not merit equitable tolling of the FTCA’s statute of\nlimitations. The district court’s grant of summary judgment\nto the United States is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363633/", "author_raw": "ELLIS, District Judge:"}]}	MARY M SCHROEDER	MARSHA S BERZON	SARA LEE ELLIS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586380/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Anthony Booth v. United States\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nANTHONY K. BOOTH, in his own No. 16-17084\nright and on behalf of all statutory\nbeneficiaries, D.C. No.\n Plaintiff-Appellant, 2:11-cv-00901-\n SPL\n v.\n\nUNITED STATES OF AMERICA, OPINION\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Steven Paul Logan, District Judge, Presiding\n\n Argued and Submitted December 6, 2017\n San Francisco, California\n\n Filed January 31, 2019\n\f2 BOOTH V. UNITED STATES\n\n Before: Mary M. Schroeder and Marsha S. Berzon, \n Circuit Judges, and Sara Lee Ellis, * District Judge.\n\n Opinion by Judge Sara L. Ellis\n\n\n SUMMARY **\n\n\n Federal Tort Claims Act\n\n The panel affirmed the district court’s summary\njudgment in favor of the United States in a Federal Tort\nClaims Act (“FTCA”) action alleging that a United States\nagency negligently caused plaintiff’s father’s death while\nplaintiff was a minor.\n\n The district court found that the claims were time-barred\nbecause the minor’s representative submitted them too late.\nThe minor argued on appeal that his minority should have\noperated to toll the statute of limitations on his claims.\n\n The panel held that there is no minority tolling of the\nFTCA’s statute of limitations. The panel further held that\nthe Supreme Court’s decision in United States v. Wong, 135\n\n \n This case was submitted to a panel that included Judge Kozinski,\nwho retired. Following Judge Kozinski’s retirement, Judge Berzon was\ndrawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge\nBerzon has read the briefs and reviewed the record.\n\n \n The Honorable Sara Lee Ellis, United States District Judge for the\nNorthern District of Illinois, sitting by designation.\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f BOOTH V. UNITED STATES 3\n\nS. Ct. 1625 (2015), did not suggest, let alone hold, that\nminority tolling applied to the FTCA. The panel also held\nthat minority alone does not merit equitable tolling of the\nFTCA’s statute of limitations. Accordingly, the panel\naffirmed the district court’s judgment in favor of the\ngovernment.\n\n\n COUNSEL\n\nJohn P. Leader (argued), The Leader Law Firm, Tucson,\nArizona, for Plaintiff-Appellant.\n\nAnn E. Harwood (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth A.\nStrange, Acting United States Attorney; United States\nAttorney’s Office, Phoenix, Arizona; for Defendant-\nAppellee.\n\n\n OPINION\n\nELLIS, District Judge:\n\n Plaintiff-Appellant Anthony K. Booth claims that a\nUnited States agency negligently caused his father’s death\nwhile Booth was a minor. Because Booth was a minor, his\nmother, acting as his representative, sued the United States\npursuant to the Federal Tort Claims Act (“FTCA”),\n28 U.S.C. § 2671 et seq. The district court found that the\nclaims were time-barred because Booth’s representative\nsubmitted them too late. Booth appeals, arguing that\nminority should operate to toll the statute of limitations on\nhis claims. Because we conclude that prior decisions\nholding that there is no minority tolling for the FTCA’s\n\f4 BOOTH V. UNITED STATES\n\nstatute of limitations remain binding, and conclude that\nminority tolling is a separate statutory matter from equitable\ntolling, we affirm the district court’s decision.\n\nI. Procedural and Factual Background\n\n Booth’s father, also named Anthony Booth, died in a car\naccident on an Arizona highway on February 19, 2005. The\nyounger Booth was weeks from his tenth birthday when he\nlost his father.\n\n Booth’s mother, Marlene June, timely filed an\nAdministrative Form 95 with the Federal Highway\nAdministration (“FHWA”), and on May 5, 2011, filed suit\nagainst the United States in federal court in Arizona, on\nbehalf of Booth and other statutory beneficiaries (the late\nAnthony Booth’s mother, daughters, and other son), alleging\nthat a highway barrier that failed during the highway\naccident was not tested and approved in accord with FHWA\nrules. 1 Booth was fifteen years old when June filed the\nadministrative claim and sixteen years old at the time she\nfiled the lawsuit.\n\n The FTCA requires administrative exhaustion and sets\ntime limits for both exhaustion and the filing of a lawsuit.\n“An action shall not be instituted upon a claim against the\nUnited States for money damages for injury or loss of\nproperty or personal injury or death caused by the negligent\nor wrongful act or omission of any employee of the\nGovernment . . . unless the claimant shall have first\npresented the claim to the appropriate Federal agency and\n 1\n Booth later substituted in as named plaintiff when he turned 18,\nhence the title of this appeal. But for a good portion of the suit, June was\nthe named plaintiff. We refer in this opinion to the appropriate named\nplaintiff for the pertinent time period under discussion.\n\f BOOTH V. UNITED STATES 5\n\nhis claim shall have been finally denied by the agency in\nwriting and sent by certified or registered mail.” 28 U.S.C.\n§ 2675. “A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also\nbarred “unless action is begun within six months after the\ndate of mailing, by certified or registered mail, of notice of\nfinal denial of the claim by the agency to which it was\npresented.” Id. 2\n\n The Government moved to dismiss June’s case, arguing\nthat the FTCA’s statute of limitations could not be tolled.\nThe district court agreed, finding that the claim had accrued\nmore than two years before June presented it to the federal\nagency and holding that, under Ninth Circuit precedent, the\nFTCA’s statute of limitations is not subject to equitable\ntolling or tolling for minority of the injured party. June\nappealed.\n\n While June’s appeal was pending, an en banc panel of\nthis Court was considering Wong v. Beebe, 732 F.3d 1030\n(9th Cir. 2013) (en banc). Wong also involved tolling of the\nFTCA’s statute of limitations. The plaintiff-appellant in\nWong sought equitable tolling of the FTCA’s statute of\nlimitations for the time to file suit after bringing a claim to\nthe administrative agency. Id. at 1034. We held that the\nFTCA’s statute of limitations is not jurisdictional and is\nsubject to equitable tolling. Id. at 1047, overruling Marley\nv. United States, 567 F.3d 1030 (9th Cir. 2009).\n\n\n\n 2\n We refer to the two-year and six-month statute of limitations\ncollectively in this opinion as the FTCA’s statute of limitations.\n\f6 BOOTH V. UNITED STATES\n\n After Wong, the panel hearing June’s initial appeal\nissued a memorandum disposition that reversed the district\ncourt’s decision granting the Government’s motion to\ndismiss June’s lawsuit and remanded the issue of equitable\ntolling to the district court. June v. United States, 550 F.\nApp’x 505 (9th Cir. 2013) (unpublished decision). The\nGovernment then sought certiorari for both that decision and\nWong.\n\n The Supreme Court took both cases, addressing and\naffirming them both and ruling that the FTCA’s statute of\nlimitations (both the two-year time limit after accrual for\npresenting claims to the administrative agency and the six-\nmonth time limit for suit after denial of a claim by an agency)\nis not jurisdictional, but instead is subject to equitable\ntolling. United States v. Wong (“Wong/June”), — U.S. —,\n135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme\nCourt remanded June’s case.\n\n June’s case resumed in district court. Booth, having\nreached the age of majority by this time, substituted in as\nnamed plaintiff. The Government then moved for summary\njudgment, arguing that Booth’s claim was barred by the\nFTCA’s statute of limitations because June, as Booth’s\nrepresentative, did not file a claim with the administrative\nagency until more than five years after Booth’s father’s car\naccident and there were no circumstances that called for\nequitable tolling. Booth cross-moved for summary\njudgment, arguing that the statute of limitations should be\ntolled because the nature of the Government’s involvement\nin the car accident had been concealed, and because Booth\nhad been a minor at the time of the accident, at the time June\nfiled an administrative claim, and at the time June filed suit.\n\n The district court granted the Government’s motion for\nsummary judgment. The district court held, as it had\n\f BOOTH V. UNITED STATES 7\n\ndetermined before the appeal, that Booth’s claim accrued on\nthe day of his father’s accident, February 19, 2005, and that\nBooth had submitted his claim to the FHWA more than two\nyears later, through his mother June, on December 16, 2010.\nThe district court concluded that Booth could not equitably\ntoll the statute of limitations on concealment grounds and\nalso that Booth had waived any argument that his age tolled\nthe statute of limitations, as he had failed to raise the issue in\nthe prior appeal. Booth moved for reconsideration. The\ndistrict court denied the motion, and Booth timely appealed.\n\nII. Standard of Review\n\n The Court reviews the district court’s grant of summary\njudgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,\n871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same\nstandard used by the district court and “view the evidence in\nthe light most favorable to the nonmoving party, determine\nwhether there are any genuine issues of material fact, and\ndecide whether the district court correctly applied the\nrelevant substantive law.” Animal Legal Def. Fund v. U.S.\nFood & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).\n\nIII. Analysis\n\n On appeal, Booth asserts that his status as a minor during\nmost of these proceedings tolls the FTCA’s statute of\nlimitations—specifically that portion of the statute of\nlimitations that requires a plaintiff to file a claim with the\nresponsible agency within two years of the accrual of the\n\f8 BOOTH V. UNITED STATES\n\nclaim. 3 28 U.S.C. § 2401(b). No longer considered\njurisdictional, the FTCA’s statute of limitations can now be\ntolled, Wong, 732 F.3d at 1047, including for equitable\nconsiderations, Wong/June, 135 S. Ct. at 1633 (“The time\nlimits in the FTCA are just time limits, nothing more. Even\nthough they govern litigation against the Government, a\ncourt can toll them on equitable grounds.”). Booth argues\nthat minority tolling—the rule applicable in many\ncircumstances that statutes of limitations are tolled during\nthe minority of the would-be plaintiff—should be applicable\nunder the FTCA. He also maintains being a minor is\nsufficient for equitable tolling of the FTCA’s statute of\nlimitations.4\n\n\n 3\n Booth does not challenge on appeal the district court’s decision\nthat the government’s alleged concealment does not justify equitable\ntolling.\n\n In his briefing, Booth did not challenge the district court’s\ndetermination that his claim accrued on the day of the accident. Because\nhe raised the issue for the first time at argument, he has waived it. See\nHarger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).\n 4\n We can dispose of two issues at the outset. The first is the\nGovernment’s argument that the district court properly found that Booth\nhad waived the issue of minority tolling. Wong and Wong/June changed\nthe Ninth Circuit’s previous rule precluding any tolling of the FTCA\nstatute of limitations, so Booth could not have waived the question of\nhow that change affects minority tolling. See Gallardo v. United States,\n755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived\nwhen not raised before Wong). The second is Booth’s argument that\nArizona’s minority tolling statute applies and tolls the FTCA’s statute of\nlimitations. State rules on minority tolling do not apply. “A court must\nlook to state law for the purpose of defining the actionable wrong for\nwhich the United States shall be liable, but to federal law for the\nlimitations of time within which the action must be brought.” Poindexter\nv. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.\n\f BOOTH V. UNITED STATES 9\n\n A. The Rule Against Minority Tolling of the FTCA’s\n Statute of Limitations Should Continue to Apply\n\n Minority tolling statutes provide that if a cause of action\naccrues when a plaintiff is a child, the statute of limitations\non that cause of action is suspended until the plaintiff attains\nthe age of majority. The policy reason underlying such\nstatutes, as enunciated by one state appellate court in this\nCircuit, is “[b]ecause a minor does not have the\nunderstanding or experience of an adult, and because a minor\nmay not bring an action except through a guardian . . .\nspecial safeguards are required to protect the minor’s right\nof action.” W. Shield Investigations & Sec. Consultants v.\nSuperior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)\n(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,\n426 (Ct. App. 1979)), disapproved of on other grounds by\nGatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.\n2002). The states in this Circuit all have statutes providing\nfor minority tolling for state-law tort claims. See Alaska\nStat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.\nCiv. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho\nCode § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.\nStat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.\nCode § 4.16.190(1).\n\n As the Fourth Circuit has recognized, “[t]he blackletter\nrule . . . is that a statute of limitations runs against all\npersons, even those under a disability, unless the statute\nexpressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,\n80 (4th Cir. 1994). The Supreme Court long ago recognized\nthis rule as extending to minority tolling: “The exemptions\nfrom the operation of statutes of limitations, usually\n\nBaeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law\ntolling statutes do not apply to the FTCA’s limitations period.”).\n\f10 BOOTH V. UNITED STATES\n\naccorded to infants . . . , do not rest upon any general\ndoctrine of the law . . . but in every instance upon express\nlanguage in those statutes giving them time, after majority\n. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,\n521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United\nStates v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)\n(“The federal courts have consistently rejected requests to\ncreate tolling exceptions for minors, reasoning that in the\nabsence of an express legislative directive to the contrary,\nparents and guardians are assumed to be adequate\nsurrogates.”). Federal courts have consistently applied\nVance, following minority tolling for federal statutes of\nlimitations only if the statute setting out the limitations\nperiod so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;\nVogel, 23 F.3d at 80.\n\n Consistent with the Vance principle, we have never\nrecognized minority tolling for the FTCA’s statute of\nlimitations. See Papa v. United States, 281 F.3d 1004, 1001\n(9th Cir. 2002) (“The time limitation for FTCA claims is not\ntolled during a claimant’s minority.”); Landreth ex rel. Ore\nv. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The\nfact of minority does not toll the statute.”); Fernandez v.\nUnited States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that\nno minority tolling applies under the FTCA); Mann v. United\n\n 5\n Minority tolling may be available for federal causes of action that\nborrow the statute of limitations from state law such as § 1983, but only\nif the relevant state law also includes a minority tolling provision and\nthat provision is not “inconsistent with the federal policy underlying the\ncause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.\nTomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);\nsee also Bishop v. Children’s Ctr. for Developmental Enrichment,\n618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling\nprovisions do not apply to the FTCA’s limitations period. See\nPoindexter v. United States, 647 F.2d at 36.\n\f BOOTH V. UNITED STATES 11\n\nStates, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time\nlimitation is not tolled during a claimant’s minority.”);\nBrown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)\n(“It is well established that minority does not toll the\nlimitations period prescribed in the Federal Tort Claims\nAct.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.\n1965) (refusing to toll the FTCA’s statute of limitations for\na minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.\n1956) (same).\n\n Congress, if so minded, may establish exceptions for\ncertain disabilities—including minority—and has done so in\nvarious federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);\n28 U.S.C. § 2501. By contrast, the FTCA began with a\nstatute of limitations that was “without express qualification\nfor legal disability,” and each time Congress amended the\nlimitation period, it did not add a tolling provision. Glenn,\n231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,\nCongress considered proposed amendments providing for\nminority tolling of the FTCA’s statute of limitations. E.g.,\nH.R. 3260, 3261, 101st Cong. (1989). But these proposed\namendments have not become law. Had Congress wanted to\ninclude minority tolling in the FTCA’s statute of limitations,\nit could have done so.\n\n Booth asks that we ignore the prior FTCA case law\nrejecting minority tolling here, arguing that Wong/June\nrequires that we abandon sixty years of precedent.\nWong/June says nothing to indicate that our past decisions\non this discrete issue are incorrect. The Supreme Court was\nsilent on minority tolling. And we have grounded our rule\nagainst minority tolling in part on considerations\nindependent of whether the FTCA’s statute of limitations is\njurisdictional. Our case law emphasizes that Congress does\nnot appear to have intended to expand that waiver of\n\f12 BOOTH V. UNITED STATES\n\nimmunity for the entire time an injured party is a minor. See\nPittman, 341 F.2d at 741 (“We do not believe that the\nCongress could have intended that infants have up to\n21 years for a statute of limitations.”). Under these cases,\nthe parent or guardian holds a legal duty to take action on\nbehalf of the minor child. Landreth, 850 F.2d at 534. The\nparent’s knowledge of the injury and its cause is imputed to\nthe minor, leaving the parent responsible for initiation of suit\nin a timely manner. Id. These considerations have no\nrelation to whether the statute of limitations is\njurisdictional. 6 In short, the Supreme Court’s decision in\nWong/June does not suggest, let alone hold, that minority\ntolling applies to the FTCA.\n\n As Booth recognizes, the statute of limitations for non-\ntort claims brought against the United States, which is also\nfound under § 2401, does contain a tolling provision. See\n28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of\ntitle 41, every civil action commenced against the United\nStates shall be barred unless the complaint is filed within six\nyears after the right of action first accrues. The action of any\nperson under legal disability or beyond the seas at the time\nthe claim accrues may be commenced within three years\nafter the disability ceases.”). Although, on its face, the\nsecond sentence of subsection (a) is generic, we held in\nGlenn that it is not. See 231 F.2d at 886. Glenn noted that,\nalthough both § 2401(a) and § 2401(b) are now contained in\nthe same statute, they did not begin that way. See id. Based\n\n 6\n Our sister circuits would appear to agree. The Third and Eight\nCircuits recognized before Wong/June that the FTCA’s statute of\nlimitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt\nv. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,\nthese circuits held that minority tolling of the FTCA’s statute of\nlimitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.\nWilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).\n\f BOOTH V. UNITED STATES 13\n\non the legislative history of § 2401 and the sources of\nsubsections (a) and (b), Glenn concluded that Congress did\nnot intend “that the sentence in [§ 2401(a)] qualified the\nlimitation on tort claims set forth in [§ 2401(b)].” Id.\n\n Booth asks us to overrule Glenn. Putting aside that\nBooth raised this argument for the first time at oral\nargument, thus waiving it, we may not overrule Glenn, as\nthere is no Supreme Court or en banc case inconsistent with\nit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)\n(en banc).\n\n Moreover, applying subsection (a)’s tolling provision to\nclaims covered by subsection (b) would create an anomaly.\nUnder that interpretation, a formerly disabled plaintiff would\nhave three years to file an action after the disability ceases,\nnotwithstanding subsection (b)’s requirement that such\nclaims be filed with the agency within two years after the\nclaim accrues. Compare 28 U.S.C. § 2401(a) (“The action of\nany person under legal disability or beyond the seas at the\ntime the claim accrues may be commenced within three\nyears after the disability ceases.” (emphasis added)), with id.\n§ 2401(b) (“A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” (emphasis added)). We can think of no reason\nCongress would have devised such a scheme.\n\n We therefore reject Booth’s argument that the tolling\nprovision in subsection (a) should apply to claims covered\nby subsection (b).\n\f14 BOOTH V. UNITED STATES\n\n B. Tolling for Minority Status Alone Is a Statutory\n Matter Separate from Equitable Tolling\n\n Separate and distinct from the statutory concept of\nminority tolling is equitable tolling. “[A] court may pause\nthe running of a limitations statute . . . when a party ‘has\npursued his rights diligently but some extraordinary\ncircumstance’ prevents him from meeting a deadline.”\nWong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya\nAlvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.\n2d 200 (2014)). This is the concept of equitable tolling. “In\napplying equitable tolling, courts ‘follow a tradition in which\ncourts of equity have sought to relieve hardships which, from\ntime to time, arise from a hard and fast adherence to more\nabsolute legal rules, which, if strictly applied, threaten the\nevils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting\nHolland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177\nL. Ed. 2d 130 (2010)).\n\n To obtain equitable tolling a litigant must establish\n“(1) that he has been pursuing his rights diligently, and\n(2) that some extraordinary circumstances stood in his way.”\nId. (citation omitted). The first element requires “the effort\nthat a reasonable person might be expected to deliver under\nhis or her particular circumstances,” id. (quoting Doe v.\nBusby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks\nwhether the plaintiff was “‘without any fault’ in pursuing his\nclaim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th\nCir. 1996)). The second element requires the litigant to\n“show that extraordinary circumstances were the cause of his\nuntimeliness and . . . made it impossible to file the document\non time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997\n(9th Cir. 2009)). “Whether a particular untimely claim may\nbe excused for a particular reason varies with the reason.”\nId. at 1051.\n\f BOOTH V. UNITED STATES 15\n\n As noted above, suspending a limitations period during\nminority has been available not as a result of equitable\ntolling but only where a statute expressly so provides. See\nVance, 108 U.S. at 521. Particular circumstances connected\nto one’s age could support equitable tolling. For example,\nthere may be cause for equitable tolling if a minor is\nabandoned by his parents and/or guardians and so left\nunprotected. Cf. Zavala ex rel. Ruiz v. United States,\n876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us\nthat the alleged abandonment left him unprotected . . . .”).\nLikewise, some states have recognized that equitable tolling\nmay be appropriate where a minor is “a ward of the state\nwithout a next friend or guardian of his estate” or “has a\nguardian of his person with interests possibly adverse to his\nown,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.\nCt. 1994), or where the cause of action is not reasonably\nknowable by the plaintiff or her parents because of her\nminority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.\n1994).\n\n Still, minority alone is not the type of exceptional\ncircumstance described above. In multiple cases involving\nminors with FTCA claims, this Court has considered\nwhether minority tolling applies (and held that it does not),\nand then separately considered whether equitable tolling\napplies and concluded that there was not a sufficient basis\nfor equitable tolling. See Papa, 281 F.3d at 1011; Zavala,\n876 F.2d at 784. In so ruling in Zavala, this Court noted that\nthe minor had “a parent who had both the duty to bring a\nclaim and the knowledge necessary to pursue it.” 876 F.2d\nat 784. Booth has shown no evidence to indicate that this\nwas not the case here as well, or to indicate any extraordinary\ncircumstances outside of the mere fact of his minority.\n\f16 BOOTH V. UNITED STATES\n\n Accordingly, we hold that there is no minority tolling of\nthe FTCA’s statute of limitations and that minority alone\ndoes not merit equitable tolling of the FTCA’s statute of\nlimitations. The district court’s grant of summary judgment\nto the United States is AFFIRMED.\n[END_CASE]", "role": "user" } ]
4,586,381		American Beverage Assn. v. City & County of San Francisco	2019-01-31	16-16072	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and Dorothy W. Nelson, Susan P. Graber, William A. Fletcher, Marsha S. Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nAMERICAN BEVERAGE No. 16-16072\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs-Appellants, 3:15-cv-03415-EMC\n\n and\n\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nAMERICAN BEVERAGE No. 16-16073\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs, 3:15-cv-03415-EMC\n\n and\n OPINION\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff-Appellant,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n\n Appeals from the United States District Court\n for the Northern District of California\n Edward M. Chen, District Judge, Presiding\n\n Argued and Submitted En Banc September 25, 2018\n Pasadena, California\n\n Filed January 31, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and Dorothy W.\n Nelson, Susan P. Graber, William A. Fletcher, Marsha S.\n Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan\n Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,\n and John B. Owens, Circuit Judges.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3\n\n Opinion by Judge Graber;\n Concurrence by Judge Ikuta;\n Concurrence by Judge Christen;\n Concurrence by Judge Nguyen\n\n\n SUMMARY\n\n\n Civil Rights\n\n The en banc court reversed the district court’s denial of a\npreliminary injunction and remanded in an action challenging\nthe City and County of San Francisco’s Sugar-Sweetened\nBeverage Warning Ordinance, which requires health\nwarnings on advertisements for certain sugar-sweetened\nbeverages.\n\n Plaintiffs, the American Beverage Association, California\nRetailers Association, and California State Outdoor\nAdvertising Association, argued that the Ordinance violated\ntheir First Amendment right to freedom of speech. The en\nbanc court, relying on National Institute of Family & Life\nAdvocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),\nconcluded that Plaintiffs will likely succeed on the merits of\ntheir claim that the Ordinance is an “unjustified or unduly\nburdensome disclosure requirement[] [that] might offend the\nFirst Amendment by chilling protected commercial speech.”\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\n651 (1985). The en banc court determined that the remaining\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\npreliminary injunction factors also weighed in Plaintiffs’\nfavor.\n\n Concurring, Judge Ikuta stated that because the\nAssociations had shown a likelihood of prevailing on the\nmerits and because the other factors for granting a\npreliminary injunction weighed in the Associations’ favor,\nshe agreed with the majority’s conclusion that the district\ncourt abused its discretion by denying the Associations’\nmotion for a preliminary injunction. But Judge Ikuta stated\nthat because the majority failed to apply NIFLA’s framework\nfor analyzing when government-compelled speech violates\nthe First Amendment, she dissented from the majority’s\nreasoning.\n\n Concurring in part and concurring in the judgment, Judge\nChristen, joined by Chief Judge Thomas, agreed with the\nmajority that Zauderer’s framework applied to the\ngovernment-compelled speech at issue in this case. Judge\nChristen also agreed that the district court’s decision must be\nreversed, but she would not reach the issue the majority relied\nupon. Judge Christen would reverse because the City and\nCounty of San Francisco could not show that the speech it\nsought to compel was purely factual.\n\n Concurring in the judgment, Judge Nguyen disagreed\nwith the majority’s expansion of Zauderer’s rational basis\nreview to commercial speech that is not false, deceptive, or\nmisleading. Judge Nguyen stated that because the majority\nreached the right result under the wrong legal standard, she", "author": "GRABER, Circuit Judge:"}, {"type": "concurrence", "author": "respectfully", "text": "respectfully concurred only in the judgment.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 5\n\n COUNSEL\n\nRichard P. Bress (argued), George C. Chipev, Michael E.\nBern, and Melissa Arbus Sherry, Latham & Watkins LLP,\nWashington, D.C.; Marcy C. Priedman, Latham & Watkins\nLLP, San Francisco, California; for Plaintiffs-Appellants.\n\nJeremy Michael Goldman (argued) and Wayne Snodgrass,\nDeputy City Attorneys; Dennis J. Herrera, City Attorney;\nOffice of the City Attorney, San Francisco, California; for\nDefendant-Appellee.\n\nWencong Fa and Meriem L. Hubbard, Pacific Legal\nFoundation, Sacramento, California, for Amicus Curiae\nPacific Legal Foundation.\n\nRobert Corn-Revere, Ronald G. London, Davis Wright\nTremaine LLP, Washington, D.C., for Amicus Curiae The\nAssociation of National Advertisers, Inc.\n\nWarren Postman and Katheryn Comerford Todd, Litigation\nCenter Inc., Washington, D.C.; Jeremy J. Broggi, Megan L.\nBrown, and Bert W. Rein, Wiley Rein LLP, Washington,\nD.C., for Amicus Curiae Chamber of Commerce of the\nUnited States of America.\n\nMark S. Chenoweth, Cory L. Andrews, and Richard A. Samp,\nWashington Legal Foundation, Washington, D.C., for\nAmicus Curiae Washington Legal Foundation.\n\nAllison M. Zieve, Julie A. Murray, and Scott L. Nelson,\nPublic Citizen Litigation Group, Washington, D.C., for\nAmicus Curiae Public Citizens, Inc.\n\n6 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nSophia TonNu, Thomas Bennigson, and Seth E. Mermin,\nPublic Good Law Center, Berkeley, California; Sabrina\nAdler, Ian McLaughlin, and Benjamin D. Wing, Changelab\nSolutions, Oakland, California, for Amici Curiae American\nHeart Association, American Academy of Pediatrics,\nCalifornia, California Academy of Family Physicians,\nCalifornia Chapter of the American Association of Clinical\nEndocrinologists, California Endowment, California Medical\nAssociation, California Pan-Ethnic Health Network,\nChangelab Solutions, Community Health Partnership,\nCrossfit Foundation, Diabetes Coalition of California,\nHealthy Food America, Latino Coalition for a Healthy\nCalifornia, National Association of Chronic Disease\nDirectors, National Association of Local Boards of Health,\nNetwork of Ethnic Physician Organizations, Nicos Chinese\nHealth Coalition, Prevention Institute, Public Health Institute,\nPublic Health Law Center, San Francisco Bay Area\nPhysicians for Social Responsibility, San Francisco\nCommunity Clinic Consortium, San Francisco Medical\nSociety, Southern California Public Health Association, and\nStrategic Alliance.\n\nRachel Bloomekatz, Gupta Wessler PLLC, Washington,\nD.C., for Amici Curiae American Cancer Society Cancer\nAction Network, Public Health Law Center, Action on\nSmoking & Health, African American Tobacco Control\nLeadership Council, American Lung Association, American\nThoracic Society, Americas for Nonsmokers’ Rights,\nCampaign for Tobacco-Free Kids, NAATPN, and Truth\nInitiative Foundation.\n\nMaia C. Kats, Center for Science in the Public Interest,\nWashington, D.C., for Amicus Curiae Center for Science in\nthe Public Interest.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 7\n\nPeter C. Tolsdorf and Linda E. Kelly, Manufacturers’ Center\nfor Legal Action, Washington, D.C.; J. Michael Connolly,\nThomas R. McCarthy, and William S. Consovoy, Consovoy\nMcCarthy Park PLLC, Arlington, Virginia; for Amicus\nCuriae National Association for Manufacturers.\n\nDeborah R. White, Retail Litigation Center Inc., Arlington,\nVirginia; Gabriel K. Gillett, Jenner & Block LLP, Chicago,\nIllinois; Adam G. Unikowsky, Jenner & Block LLP,\nWashington, D.C., for Amicus Curiae Retail Litigation\nCenter.\n\nCatherine E. Stetson, Hogan Lovells US LLP, Washington,\nD.C., for Amicus Curiae Grocery Manufacturers Association.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Plaintiffs American Beverage Association, California\nRetailers Association, and California State Outdoor\nAdvertising Association challenge Defendant City and\nCounty of San Francisco’s Sugar-Sweetened Beverage\nWarning Ordinance, City & Cty. of S.F., Cal., Bd. of\nSupervisors Ordinance No. 100-15, § 1 (June 16, 2015). The\nOrdinance requires health warnings on advertisements for\ncertain sugar-sweetened beverages (“SSBs”). Plaintiffs argue\nthat the Ordinance violates their First Amendment right to\nfreedom of speech. Relying on the United States Supreme\nCourt’s decision in National Institute of Family & Life\nAdvocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018), we\nconclude that Plaintiffs will likely succeed on the merits of\ntheir claim that the Ordinance is an “unjustified or unduly\n\n8 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nburdensome disclosure requirement[] [that] might offend the\nFirst Amendment by chilling protected commercial speech.”\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\n651 (1985). The remaining preliminary injunction factors\nalso weigh in Plaintiffs’ favor. We therefore hold that the\ndistrict court abused its discretion by denying Plaintiffs’\nmotion for a preliminary injunction, and we reverse and\nremand.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\n In June 2015, Defendant enacted the Ordinance, which\nrequires that certain SSB advertisements (“SSB Ads”) include\nthe following statement:\n\n WARNING: Drinking beverages with added\n sugar(s) contributes to obesity, diabetes, and\n tooth decay. This is a message from the City\n and County of San Francisco.\n\nCity & Cty. of S.F., Cal., Health Code art. 42, div. I,\n§ 4203(a) (2015). An “SSB Ad” covers\n\n any advertisement, including, without\n limitation, any logo, that identifies, promotes,\n or markets a Sugar-Sweetened Beverage for\n sale or use that is any of the following: (a) on\n paper, poster, or a billboard; (b) in or on a\n stadium, arena, transit shelter, or any other\n structure; (c) in or on a bus, car, train,\n pedicab, or any other vehicle; or (d) on a wall,\n or any other surface or material.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 9\n\nId. § 4202. Under section 4202, though, an “SSB Ad” does\nnot include advertising in or on: periodicals; television;\nelectronic media; SSB containers or packaging; menus; shelf\ntags; vehicles used by those in the business of manufacturing,\nselling, or distributing SSBs; or logos that occupy an area of\nless than 36 square inches. Id. The Ordinance defines “SSB”\nas “any Nonalcoholic Beverage sold for human consumption,\nincluding, without limitation, beverages produced from\nConcentrate, that has one or more added Caloric Sweeteners\nand contains more than 25 calories per 12 ounces of\nbeverage.” Id. But “SSB” does not include drinks such as\nmilk, plant-based milk alternatives, natural fruit and\nvegetable juices, infant formulas, and supplements. Id. The\nOrdinance provides detailed instructions regarding the form,\ncontent, and placement of the warning on SSB Ads, including\na requirement that the warning occupy at least 20% of the\nadvertisement and be set off with a rectangular border. Id.\n§ 4203(b).\n\n Defendant’s stated purpose in requiring the warning is,\namong other reasons, to “inform the public of the presence of\nadded sugars and thus promote informed consumer choice\nthat may result in reduced caloric intake and improved diet\nand health, thereby reducing illnesses to which SSBs\ncontribute and associated economic burdens.” Id. § 4201.\nFailure to comply with the warning requirement can result in\nadministrative penalties imposed by San Francisco’s Director\nof Health. Id. § 4204(a).\n\n Plaintiffs sued to prevent implementation of the\nOrdinance. The district court denied Plaintiffs’ motion for a\npreliminary injunction. Concluding that Plaintiffs likely\nwould not succeed on the merits of their First Amendment\nchallenge, the district court held that the warning is not\n\n10 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nmisleading, does not place an undue burden on Plaintiffs’\ncommercial speech, and is rationally related to a substantial\ngovernmental interest. But the court stayed implementation\nof the Ordinance pending this timely interlocutory appeal.\n\n A three-judge panel of this court reversed the district\ncourt’s denial of a preliminary injunction, Am. Beverage\nAss’n v. City & County of San Francisco, 871 F.3d 884 (9th\nCir. 2017). We then ordered that the case be reheard en banc,\n880 F.3d 1019 (9th Cir. 2018).\n\n JURISDICTION AND STANDARDS OF REVIEW\n\n We have jurisdiction under 28 U.S.C. § 1292.\n\n We review the denial of a preliminary injunction for\nabuse of discretion. Harris v. Bd. of Supervisors, 366 F.3d\n754, 760 (9th Cir. 2004). A district court abuses its discretion\nif it rests its decision “on an erroneous legal standard or on\nclearly erroneous factual findings.” United States v. Schiff,\n379 F.3d 621, 625 (9th Cir. 2004) (internal quotation marks\nomitted). “We review conclusions of law de novo and\nfindings of fact for clear error.” All. for the Wild Rockies v.\nCottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (internal\nquotation marks omitted).\n\n DISCUSSION\n\n A preliminary injunction is an extraordinary remedy that\nmay be awarded only if the plaintiff clearly shows entitlement\nto such relief. Winter v. Nat. Res. Def. Council, Inc.,\n555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary\ninjunction must establish [1] that he is likely to succeed on\nthe merits, [2] that he is likely to suffer irreparable harm in\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 11\n\nthe absence of preliminary relief, [3] that the balance of\nequities tips in his favor, and [4] that an injunction is in the\npublic interest.” Id. at 20.\n\n A. Test for Analyzing a Claim of Compelled Speech\n\n We begin by considering Plaintiffs’ likelihood of success\non the merits of their First Amendment challenge. The First\nAmendment provides that “Congress shall make no law . . .\nabridging the freedom of speech.”1 U.S. Const. amend. I. Its\nprotection is broad, and the Supreme Court has “been\nreluctant to mark off new categories of speech for diminished\nconstitutional protection.” NIFLA, 138 S. Ct. at 2372\n(internal quotation marks omitted). But NIFLA also\nacknowledged that the Court has “applied a lower level of\nscrutiny to laws that compel disclosures in certain contexts,”\nincluding cases analyzing the required disclosure of “factual,\nnoncontroversial information in . . . ‘commercial speech.’”\nId.\n\n The Ordinance regulates commercial speech and compels\ncertain disclosures.2 Therefore, in addressing Plaintiffs’\nclaim, we first determine what level of scrutiny applies. The\nparties dispute whether we should analyze the Ordinance’s\ncompliance with the First Amendment under Central Hudson\nGas & Electric Corp. v. Public Service Commission, 447 U.S.\n\n\n 1\n The Due Process Clause of the Fourteenth Amendment incorporates\nthe First Amendment against the states. Va. State Bd. of Pharmacy v. Va.\nCitizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976).\n 2\n Judge Ikuta’s special concurrence discusses at length a proposition\nthat no one disputes: that the warning is compelled speech, requiring a\nFirst Amendment analysis.\n\n12 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\n557 (1980), or under Zauderer, 471 U.S. 626. We have\ndiscussed those two tests previously, stating that:\n\n Under Central Hudson, the government\n may restrict or prohibit commercial speech\n that is neither misleading nor connected to\n unlawful activity, as long as the governmental\n interest in regulating the speech is substantial.\n 447 U.S. at 564. The restriction or prohibition\n must “directly advance the governmental\n interest asserted,” and must not be “more\n extensive than is necessary to serve that\n interest.” Id. at 566. Under Zauderer . . . , the\n government may compel truthful disclosure in\n commercial speech as long as the compelled\n disclosure is “reasonably related” to a\n substantial governmental interest. Zauderer,\n 471 U.S. at 651.\n\nCTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105,\n1115 (9th Cir. 2017).3\n\n In NIFLA, the Supreme Court applied the Zauderer test\nwithout deciding whether that test, in fact, applied. NIFLA,\n138 S. Ct. at 2376–77. But before NIFLA, we examined a\nsimilar health and safety warning and held squarely that\nZauderer provides the proper analytical framework for\nconsidering required warnings on commercial products:\n\n\n 3\n The Supreme Court vacated and remanded our opinion in CTIA for\nreconsideration in light of NIFLA. CTIA, 138 S. Ct. 2708 (2018). As will\nbe evident from the text that follows, we reconsider relevant portions of\nCTIA here in light of NIFLA and see nothing in NIFLA that is inconsistent\nwith those aspects of CTIA with which we agree in this opinion.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 13\n\n“[T]he government may compel truthful disclosure in\ncommercial speech as long as the compelled disclosure is\n‘reasonably related’ to a substantial governmental interest.”\nCTIA, 854 F.3d at 1115. We rejected the argument that\nintermediate scrutiny—as required by Central Hudson,\n447 U.S. 557, for situations in which speech is restricted or\nprohibited—should govern. CTIA, 854 F.3d at 1115–17. We\nalso rejected the argument that Zauderer applies only to\nsituations in which the government requires disclosures to\nprevent consumer deception, pointing out that we were\njoining the holdings of several of our sister circuits. Id. at\n1116–17 (citing Am. Meat Inst. v. U.S. Dep’t of Agric.,\n760 F.3d 18 (D.C. Cir. 2014) (en banc); Disc. Tobacco City\n& Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012);\nN.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114\n(2d Cir. 2009); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d\n104 (2d Cir. 2001)).\n\n NIFLA requires us to reexamine how we approach a First\nAmendment claim concerning compelled speech. But\nnothing in NIFLA suggests that CTIA was wrongly decided.\nTo the contrary, NIFLA preserved the exception to heightened\nscrutiny for health and safety warnings. The Supreme Court\nmade clear that it was not calling into “question the legality\nof health and safety warnings long considered permissible.”\nNIFLA, 138 S. Ct. at 2376.4 NIFLA did not address, and a\n\n 4\n Judge Ikuta’s special concurrence reads this portion of NIFLA to\nmean that only certain health and safety warnings (those of ancient origin)\nare excepted from heightened scrutiny. But the most natural reading of\nthis passage in the Court’s opinion is that required health and safety\nwarnings, which have long been permitted, are still allowed. In this\nstatement, the NIFLA majority was countering Justice Breyer’s dissent,\nwhich lists examples of such warnings, including both mandatory advice\nconcerning seat belts and mandatory advice about the availability of a\n\n14 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nfortiori did not disapprove, the circuits’ precedents, including\nCTIA, which have unanimously held that Zauderer applies\noutside the context of misleading advertisements. See CTIA,\n854 F.3d at 1116–17 (citing cases from the D.C., Second, and\nSixth Circuits). In short, we reaffirm our reasoning and\nconclusion in CTIA that Zauderer provides the appropriate\nframework to analyze a First Amendment claim involving\ncompelled commercial speech—even when the government\nrequires health and safety warnings, rather than warnings to\nprevent the deception of consumers. CTIA, 854 F.3d at 1117.\nWe therefore proceed to apply Zauderer to Defendant’s\nrequired warning.\n\n B. Application of the Zauderer test\n\n The Zauderer test, as applied in NIFLA, contains three\ninquiries: whether the notice is (1) purely factual,\n(2) noncontroversial, and (3) not unjustified or unduly\nburdensome. A compelled disclosure accompanying a related\nproduct or service must meet all three criteria to be\nconstitutional. NIFLA, 138 S. Ct. at 2372. Neither NIFLA\nnor any other Supreme Court precedent requires that we\napply these criteria in any particular order. The NIFLA\nCourt’s analysis began with the question whether the notice\nwas “unjustified or unduly burdensome.” Id. at 2377 (citing\nZauderer, 471 U.S. at 651). By following the same sequence,\nwe do not suggest that courts must begin by analyzing\nwhether a disclosure requirement is unjustified or unduly\n\n\nwhooping cough vaccine, 138 S. Ct. at 2380–81. There is no indication\nthat either of those required disclosures is of ancient origin or that the\nmajority intended some health and safety warnings (if accurate,\nuncontroversial, and not unduly burdensome) to be precluded merely\nbecause the knowledge that the warnings convey is new.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 15\n\nburdensome, but we find it useful to begin with that prong\nhere. Defendant has the burden of proving that the warning\nis neither unjustified nor unduly burdensome. Ibanez v. Fla.\nDep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 146 (1994).\nOn this preliminary record, Defendant has not carried its\nburden.5\n\n Defendant’s argument that the border and 20% size\nrequirements adhere to the best practices for health and safety\nwarnings is unpersuasive. We recognize that some tobacco\nand prescription warnings must occupy at least 20% of those\nproducts’ labels or advertisements. Am. Beverage Ass’n v.\nCity & County of San Francisco, 187 F. Supp. 3d 1123,\n1138–39 (N.D. Cal. 2016). And Defendant’s expert\nconcluded that larger warnings are more effective. But the\nrecord here shows that a smaller warning—half the\nsize—would accomplish Defendant’s stated goals.\n\n Defendant’s expert cited and discussed a study that\nexamined a warning similar to that required by the\nOrdinance.6 That study used warnings covering only 10% of\nthe image. The expert concluded that the cited study\n“provides empirical support that the message content and\n\n\n 5\n Contrary to Judge Ikuta’s characterization, we do not preclude\nDefendant from arguing that the Ordinance survives heightened scrutiny.\nConcurrence at 28. Logically, though, if the warning does not meet a\nlower standard, it necessarily does not meet a higher standard. See\nNIFLA, 138 S. Ct. at 2377 (“Even under Zauderer, a disclosure\nrequirement cannot be ‘unjustified or unduly burdensome.’” (quoting\nZauderer, 471 U.S. at 651)).\n 6\n The study’s warning read “Safety Warning: Drinking beverages\nwith added sugar[s] contributes to obesity, diabetes, and tooth decay,” and\nincluded a border.\n\n16 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\ndesign of the San Francisco warning is associated [with] an\nimproved understanding of health harms associated with\noverconsumption of SSBs and may reduce the purchase of\nSSBs—two of the primary objectives identified in the San\nFrancisco ordinance.” The findings of that study thus\nundermine Defendant’s position, because the findings suggest\nthat the Ordinance’s goals could be accomplished with a\nsmaller warning. On this record, therefore, the 20%\nrequirement is not justified when balanced against its likely\nburden on protected speech.\n\n In addition, the argument that the Ordinance incorporates\nbest practices does not respond to the First Amendment\nbalancing test that we must apply. Although the disclosures\nin NIFLA were more onerous than the Ordinance’s disclosure,\nsimilar concerns are present here: Defendants have not\nshown that the contrasting rectangular border containing a\nwarning that covers 20% of the advertisement does not\n“drown[] out” Plaintiffs’ messages and “effectively rule[] out\nthe possibility of having [an advertisement] in the first place.”\n138 S. Ct. at 2378 (internal quotation marks omitted). On this\nrecord, therefore, the 20% requirement is not justified and is\nunduly burdensome when balanced against its likely burden\non protected speech.\n\n To be clear, we do not hold that a warning occupying\n10% of product labels or advertisements necessarily is valid,\nnor do we hold that a warning occupying more than 10% of\nproduct labels or advertisements necessarily is invalid. See\nid. (“We express no view on the legality of a similar\ndisclosure requirement that is better supported or less\nburdensome.”). Rather, we hold only that, on this record,\nDefendant has not carried its burden to demonstrate that the\nOrdinance’s requirement is not “unjustified or unduly\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 17\n\nburdensome.” See id. at 2377. The required warnings\ntherefore offend Plaintiffs’ First Amendment rights by\nchilling protected speech. See id. at 2378 (“[The notice]\nimposes an unduly burdensome disclosure requirement that\nwill chill [the speaker’s] protected speech.”).\n\n The Supreme Court made clear in NIFLA that a\ngovernment-compelled disclosure that imposes an undue\nburden fails for that reason alone. Id. at 2377. Indeed, the\nCourt ended its own analysis with that holding. Id. at 2378.\nWe need not, and therefore do not, decide whether the\nwarning here is factually accurate and noncontroversial.\n\n The remaining factors of the preliminary injunction test\nalso favor an injunction. Because Plaintiffs have a colorable\nFirst Amendment claim, they have demonstrated that they\nlikely will suffer irreparable harm if the Ordinance takes\neffect. See Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014)\n(“A colorable First Amendment claim is irreparable injury\nsufficient to merit the grant of relief.” (internal quotation\nmarks omitted)). Next, “[t]he fact that [Plaintiffs] have raised\nserious First Amendment questions compels a finding that . . .\nthe balance of hardships tips sharply in [Plaintiffs’] favor.”\nCmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th\nCir. 2007) (internal quotation marks omitted). Finally, we\nhave “consistently recognized the significant public interest\nin upholding First Amendment principles.” Doe, 772 F.3d at\n583 (internal quotation marks omitted). Indeed, “it is always\nin the public interest to prevent the violation of a party’s\nconstitutional rights.” Melendres v. Arpaio, 695 F.3d 990,\n1002 (9th Cir. 2012) (internal quotation marks omitted).\n\n In summary, Plaintiffs have met each of the requirements\nfor a preliminary injunction. We therefore conclude that the\n\n18 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\ndistrict court abused its discretion by denying Plaintiffs’\nmotion.\n\n REVERSED and REMANDED."}, {"author": "IKUTA, Circuit Judge, dissenting", "type": "dissent", "text": "IKUTA, Circuit Judge, dissenting from most of the reasoning,\nconcurring in the result:\n\n In National Institute of Family & Life Advocates v.\nBecerra (NIFLA), the Supreme Court provided a framework\nfor analyzing First Amendment challenges to government-\ncompelled speech. 138 S. Ct. 2361 (2018). Under this\nframework, a government regulation that compels a\ndisclosure (like the San Francisco ordinance in this case) is a\ncontent-based regulation of speech, which is subject to\nheightened scrutiny under the First Amendment unless the\nZauderer exception applies. The majority fails to follow this\nanalytical framework and makes several crucial errors. I\ntherefore dissent.\n\n I\n\n NIFLA broke new ground on several key issues.\nAlthough the Court has previously considered the\nconstitutionality of government regulations requiring lawyers\nto disclose certain information in their advertisements, see\nZauderer v. Office of Disciplinary Counsel of Supreme Court\nof Ohio, 471 U.S. 626, 650–51 (1985); see also Milavetz,\nGallop & Milavetz, P.A. v. United States, 559 U.S. 229,\n250–52 (2010); Ohralik v. Ohio State Bar Ass’n, 436 U.S.\n447, 457–59 (1978), NIFLA is the first Supreme Court case\nto apply Zauderer to commercial speech more generally.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 19\n\n NIFLA considered the constitutionality of a California\nstatute that required clinics that primarily served pregnant\nwomen to post government-drafted notices. NIFLA, 138 S.\nCt. at 2368. State-licensed clinics were required to post a\nnotice that stated: “California has public programs that\nprovide immediate free or low-cost access to comprehensive\nfamily planning services (including all FDA-approved\nmethods of contraception), prenatal care, and abortion for\neligible women.” Id. at 2369 (referred to as the “licensed\nnotice”). Unlicensed clinics were required to post a notice\nstating that the “facility is not licensed as a medical facility\nby the State of California and has no licensed medical\nprovider who provides or directly supervises the provision of\nservices.” Id. at 2370 (referred to as the “unlicensed notice”).\nTwo crisis pregnancy centers, among other plaintiffs, brought\nsuit, claiming that both the licensed and unlicensed notices\nviolated their First Amendment rights.\n\n NIFLA began by making two important contributions to\nFirst Amendment jurisprudence. First, in its consideration of\nthe two government disclosure requirements, NIFLA\nestablished, for the first time, that government-compelled\nspeech is a content-based regulation of speech.1 The Court\nexplained that “[b]y compelling individuals to speak a\nparticular message,” the licensed notices “alter[ed] the\ncontent of [their] speech” and thus were content-based\nregulations. Id. at 2371. Such content-based regulations “are\n\n\n 1\n This holding arguably supersedes Zauderer, which appeared to\napply rational basis review to laws requiring attorneys to make certain\ndisclosures, stating, “we hold that an advertiser’s rights are adequately\nprotected as long as disclosure requirements are reasonably related to the\nState’s interest in preventing deception of consumers.” See Zauderer,\n471 U.S. at 651.\n\n20 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\npresumptively unconstitutional and may be justified only if\nthe government proves that they are narrowly tailored to\nserve compelling state interests.” Id.\n\n Second, NIFLA made clear that governments may not\n“impose content-based restrictions on speech without\npersuasive evidence of a long (if heretofore unrecognized)\ntradition to that effect.” Id. (cleaned up). The Court therefore\nrejected a line of circuit court cases holding that professional\nspeech is exempt “from the rule that content-based\nregulations of speech are subject to strict scrutiny.” Id. at\n2371–72. In doing so, NIFLA overruled our opinion in Pickup\nv. Brown, 740 F.3d 1208 (9th Cir. 2014), as well as a line of\ndecisions in the Third and Fourth Circuits, see, e.g., King v.\nGovernor of N.J., 767 F.3d 216 (3d Cir. 2014); Moore-King\nv. Cty. of Chesterfield, 708 F.3d 560 (4th Cir. 2013). Further,\nNIFLA emphasized that “[t]his Court has been reluctant to\nmark off new categories of speech for diminished\nconstitutional protection.” Id. at 2372 (internal quotation\nmarks omitted). While the Court did not “question the\nlegality of health and safety warnings long considered\npermissible,” id. at 2376, the Court did not create a\nstandalone exception for such content-based restrictions.\nInstead, NIFLA reiterated that a category of speech is exempt\nfrom heightened scrutiny under the First Amendment only if\nthe state can show a “long (if heretofore unrecognized)\ntradition to that effect.” Id. at 2372.\n\n Against this backdrop, the Court established its analytic\nframework. A government regulation “compelling\nindividuals to speak a particular message” is a content-based\nregulation that is subject to strict scrutiny, subject to two\nexceptions. Id. at 2372–73. First, the Court held that its\nprecedents (most notably Zauderer, 471 U.S. at 650) afforded\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 21\n\nmore deferential review to “some laws that require\nprofessionals to disclose factual, noncontroversial\ninformation in their ‘commercial speech.’” NIFLA, 138 S.\nCt. at 2372. Second, states may regulate professional\nconduct, even though that conduct incidentally involves\nspeech, such as through informed consent requirements. Id.;\nsee also Planned Parenthood of Southeastern Pa. v. Casey,\n505 U.S. 833, 884 (1992).\n\n To determine whether the Zauderer exception applies, a\ncourt must consider whether the compelled speech governs\nonly [1] “commercial advertising” and requires the disclosure\nof [2] “purely factual and [3] uncontroversial information\nabout [4] the terms under which . . . services will be\navailable.” NIFLA, 138 S. Ct. at 2372 (internal quotation\nmarks and citations omitted). If the government regulation\nmeets those requirements, the regulation should be upheld\nunless it is [5] “unjustified or [6] unduly burdensome.” Id.\n\n If the regulation does not qualify for the Zauderer\nexception, the regulation must survive heightened scrutiny to\navoid violating the First Amendment. Id. at 2372. The Court\ndid not decide whether strict scrutiny or intermediate scrutiny\napplies to government-compelled commercial disclosures that\ndo not fall under the Zauderer exception. See id.\n\n Applying this legal framework to both the licensed and\nunlicensed notice requirements, the Court held that neither\nregulation survived First Amendment scrutiny. The Court\nbegan by considering the notices required for licensed clinics.\nId. at 2371–72. It first determined that the Zauderer\nexception did not apply for two reasons. Id. at 2372. First,\nthe licensed notice was “not limited to purely factual and\nuncontroversial information about the terms under which . . .\n\n22 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nservices w[ould] be available,” because the notice “in no way\nrelate[d] to the services that licensed clinics provide.” Id.\n(internal quotation marks and citations omitted). Second, the\nnotice was not limited to uncontroversial information,\nbecause abortion is “anything but an ‘uncontroversial’ topic.”\nId.\n\n Because the Zauderer exception did not apply (and\nbecause the exception applicable to regulations of conduct\nthat incidentally burdens speech, such as informed consent\nrequirements, did not apply, see id. at 2373–74), the Court\nthen considered whether the licensed notice requirement\nsurvived heightened scrutiny. The Court declined to\ndetermine whether strict scrutiny or intermediate scrutiny\napplied to the licensed notice, because that notice failed even\nunder intermediate scrutiny. Id. at 2375. Even assuming the\nstate had a substantial state interest in providing low-income\nwomen with information about state-sponsored services, the\nCourt held that the licensed notice was not sufficiently drawn\nto achieve this interest: it was underinclusive, imprecisely\ndrawn, and could have been replaced with less intrusive\nalternatives. Id. at 2375–76.\n\n Turning to the notice required for unlicensed clinics, the\nCourt again began by considering the applicability of the\nZauderer exception. Id. at 2376–77. Because the unlicensed\nnotice stated only that the “facility is not licensed as a\nmedical facility by the State of California and has no licensed\nmedical provider who provides or directly supervises the\nprovision of services,” the Court did not need to address the\nthreshold Zauderer factors; it was apparent that the\nunlicensed notice required the disclosure of purely factual and\nuncontroversial information about the terms under which\nservices would be available. See id. at 2377. The Court\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 23\n\ninstead focused on whether the notice requirement was\nunjustified or unduly burdensome. See id. The Court\nconcluded that California had not satisfied its burden of\nproving that the unlicensed notice requirement satisfied these\ntwo prongs, because “California has not demonstrated any\njustification for the licensed notice that is more than “purely\nhypothetical,’” id., and the notice unduly burdened protected\nspeech, id. at 2377–78. The Court held that the notice was\nunderinclusive because it covered “a curiously narrow subset\nof speakers.” Id. at 2377. Moreover, the notice would have\na chilling effect because the statute required that the\ngovernment-drafted statement be in “larger text [than\nsurrounding text] or contrasting type or color” and be posted\nin as many as 13 different languages. Id. at 2378. These\nrequirements would “drown[] out the facility’s own\nmessage.” Id.\n\n In contrast to its analysis of the licensed notice, the Court\ndid not address the question whether the unlicensed notice\nrequirement survived heightened scrutiny; there was no need\nto do so, because California did “not explain how the\nunlicensed notice could satisfy any standard other than\nZauderer.” Id. at 2377 n.3. In other words, because the state\ndid not make a colorable argument that the unlicensed notice\nrequirement would survive heightened scrutiny, there was no\ndispute that the notice requirement violated the unlicensed\nclinics’ First Amendment rights unless the Zauderer\nexception applied. Because Zauderer did not apply, the\nunlicensed notice requirement was invalid, and the Court did\nnot have to proceed further.\n\n24 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\n II\n\n Under NIFLA, San Francisco’s ordinance requiring\ncompanies who advertise certain sugar-sweetened beverages\non billboards within San Francisco to include a warning\nmessage constitutes a “content-based regulation of speech”\nsubject to heightened scrutiny unless an exception applies.\n\n Turning first to the Zauderer exception, a court should\nconsider whether the regulation requires the disclosure of\npurely factual and uncontroversial information about the\nterms under which services will be available. The required\nwarning states:\n\n WARNING: Drinking beverages with added\n sugar(s) contributes to obesity, diabetes, and\n tooth decay. This is a message from the City\n and County of San Francisco.\n\nS.F. Health Code § 4203(a).\n\n This warning does not provide “purely factual and\nuncontroversial information about the terms under which . . .\nservices will be available.” Cf. NIFLA, 138 S. Ct. at 2372;\nZauderer, 471 U.S. at 651. The factual accuracy of the\nwarning is disputed in the record. Among other things, the\nwarning is contrary to statements by the FDA that added\nsugars are “generally recognized as safe,” 21 C.F.R. §§ 184.1,\n184.1866, and “can be a part of a healthy dietary pattern”\nwhen not consumed in excess amounts, 81 Fed. Reg. 33,742,\n33,760 (May 27, 2016). Moreover, as Judge Christen’s\nconcurrence points out, the disclosure is literally false with\nrespect to Type I diabetes. MBC Op. at 34–35. Although\nNIFLA did not define “uncontroversial,” the warning here\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 25\n\nrequires the advertisers to convey San Francisco’s one-sided\npolicy views about sugar-sweetened beverages. The record\nshows this is a controversial topic, and therefore, the\nordinance does not qualify as “uncontroversial information”\nunder the third prong of NIFLA. Finally, the warning does\nnot relate to the terms on which the advertisers provide their\nservices. The warning merely relates to the consumption of\nsugar-sweetened beverages, which is a product rather than a\nservice, and does not address the terms on which that product\nis provided.\n\n Even if the warning requirement provided factual and\nuncontroversial information about the terms of service, the\nrequirement would fail because it is unduly burdensome. As\nthe majority acknowledges, the warning’s size, required font\nsize, contrasting color, and other requirements contribute to\nthe severity of the warning’s burden. Maj. Op. at 15–16.\nNIFLA makes clear that requiring commercial speakers, like\nthe unlicensed clinics in NIFLA, to fight a government-\nscripted message that drowns out their own advertisements is\nunduly burdensome. Moreover, the record indicates that the\nwarning label would have a chilling effect, causing some\nmanufacturers of sugar-sweetened beverages to cease\nadvertising on covered media. Therefore, the Zauderer\nexception does not apply.\n\n Nor does any other exception apply.2 The majority is\nwrong to the extent it suggests that “NIFLA preserved the\nexception to heightened scrutiny for health and safety\nwarnings.” Maj. Op. at 13. NIFLA made clear that only\n\n\n 2\n Obviously, the warning requirement does not constitute a regulation\nof professional conduct that incidentally involves speech, such as\ninformed consent requirements.\n\n26 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\n“health and safety warnings long considered permissible”\nwould be excepted. See 138 S. Ct. at 2376. California has\nmade no showing that the warning here was “long considered\npermissible,” nor could it do so. The types of speech exempt\nfrom First Amendment protection are “well-defined and\nnarrowly limited classes of speech, the prevention and\npunishment of which have never been thought to raise any\nConstitutional problem,” from 1791 to present. See United\nStates v. Stevens, 559 U.S. 460, 468–69 (2010). These\nlimited exceptions include defamation, obscenity, and fraud,\nsee id., not newly invented classes of speech, see NIFLA,\n138 S. Ct. at 2371–72. NIFLA did not specify what sorts of\nhealth and safety warnings date back to 1791, but warnings\nabout sugar-sweetened beverages are clearly not among them.\nIndeed, the First Amendment applies even to products that\npose more obvious threats to health and safety, such as\ncigarettes. In a case involving restrictions on cigarette\nadvertisements, the Court held that the “First Amendment\nalso constrains state efforts to limit the advertising of tobacco\nproducts, because so long as the sale and use of tobacco is\nlawful for adults, the tobacco industry has a protected interest\nin communicating information about its products and adult\ncustomers have an interest in receiving that information.”\nLorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001).\nGiven this context, our precedents creating a First\nAmendment exception for government-compelled health and\nsafety warnings, see CTIA–The Wireless Ass’n v. City of\nBerkeley, Calif., 854 F.3d 1105, 1116–17 (9th Cir. 2017),\nvacated, 138 S. Ct. 2708 (2018), are no more persuasive than\nour precedents creating a First Amendment exception for\nprofessional speech, which were struck down by NIFLA. In\nneither case is there a long tradition of government regulation\ndating back to 1791.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 27\n\n Because Zauderer does not apply here, NIFLA directs us\nto consider whether the ordinance survives heightened\nscrutiny. Under intermediate scrutiny, even assuming that\nthere is a substantial state interest in warning the public of\nhealth dangers from drinking sugar-sweetened beverages, the\nwarning requirement is not sufficiently drawn to that interest.\nFirst, the requirement is underinclusive both as to the covered\nproducts and as to the means of advertisement. The\nordinance does not even apply to all sugar-sweetened\nbeverages, much less all sugar-sweetened products.\nMoreover, it applies to posters and billboards, but not digital\nads or other types of media. Like the notices in NIFLA, the\nwarning requirement is “wildly underinclusive.” See 138 S.\nCt. at 2367. Second, San Francisco could disseminate health\ninformation by other, less burdensome means, such as a less\nintrusive notice or a public health campaign. Cf. id. at 2376.\nBecause the warning requirement is not narrowly drawn, it\ndoes not survive even intermediate scrutiny. Thus, it is not\nnecessary to determine whether strict or intermediate scrutiny\napplies here.\n\n III\n\n While the majority correctly concludes that the\nadvertisers have shown a likelihood of prevailing on the\nmerits of their First Amendment claims, the majority fails to\nfollow the analytic framework set out in NIFLA and makes\nseveral crucial errors.\n\n First, the majority errs by skipping over the threshold\nquestion regarding Zauderer’s applicability, namely whether\nthe notice requirement applies to commercial advertising and\nrequires the disclosure of purely factual and uncontroversial\ninformation about the terms under which services will be\n\n28 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\navailable. Despite focusing primarily on the undue burden\nprong, the majority fails to provide any guidance regarding\nwhen a warning is unjustified or unduly burdensome. Instead\nof following NIFLA in considering the totality of the\nrequirements of the unlicensed notice and their effect on the\nspeaker (there, the clinics) to conclude that the unlicensed\nnotice was unduly burdensome, see 138 S. Ct. at 2378, the\nmajority seems to suggest that the test is whether a smaller\nwarning would accomplish San Francisco’s stated goals.\nMaj. Op. at 15–16.\n\n Most important, the majority errs by failing to consider\nwhether San Francisco’s ordinance could be upheld under\nheightened scrutiny even if the Zauderer exception does not\napply. The majority concedes that it does not “preclude [San\nFrancisco] from arguing that the Ordinance survives\nheightened scrutiny.” Maj. Op. at 15 n.5. And here, San\nFrancisco has done just that, arguing vigorously that its\nordinance survives intermediate scrutiny. The majority fails\nto address this argument, apparently on the ground that\n“logically” any such argument would be futile because “if the\nwarning does not meet a lower standard, it necessarily does\nnot meet a higher standard.” Maj. Op. at 15 n.5. This\nreasoning is flawed. A government regulation, for instance,\nmay require a commercial speaker to include images of dying\ncancer patients on cigarette packages. See, e.g., Required\nWarnings for Cigarette Packages and Advertisements,\n75 Fed. Reg. 69,524, 69,533 (Nov. 12, 2010) (proposed rule).\nWhile a court might conclude that such compelled speech is\nnot “purely factual and uncontroversial,” the court might\nnevertheless conclude that the regulation meets the test under\nCentral Hudson Gas & Electric Corp. v. Public Service\nCommission of New York, 447 U.S. 557, 563–65 (1980)\n(assuming this case provides the applicable test), because the\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 29\n\ngovernment has a substantial interest in discouraging\nsmoking, the regulation directly and materially advances the\ninterest, and the restriction is narrowly tailored to discourage\nyoung people from smoking (based on expert opinion). In\nany event, the majority is bound by NIFLA, which requires\ncourts to consider such arguments: NIFLA applied\nheightened scrutiny to the licensed notice and indicated that\nit would have applied heightened scrutiny to the unlicensed\nnotice had California made any arguments on that point. See\nNIFLA, 138 S. Ct. at 2377 n.3. The majority’s failure to\naddress San Francisco’s argument is therefore contrary to\nSupreme Court direction.\n\n Because the Associations have shown a likelihood of\nprevailing on the merits and because the other factors for\ngranting a preliminary injunction weigh in the Associations’\nfavor, I agree with the majority’s conclusion that the district\ncourt abused its discretion by denying the Associations’\nmotion for a preliminary injunction. But because the\nmajority fails to apply NIFLA’s framework for analyzing\nwhen government-compelled speech violates the First\nAmendment, I dissent from the majority’s reasoning.\n\n\n\nCHRISTEN, Circuit Judge, joined by THOMAS, Chief", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363634/", "author_raw": "IKUTA, Circuit Judge, dissenting"}, {"author": "Judge, concurring", "type": "concurrence", "text": "Judge, concurring in part and concurring in the judgment:\n\n I agree with the majority that Zauderer’s framework\napplies to the government-compelled speech at issue in this\ncase. See Zauderer v. Office of Disciplinary Counsel,\n471 U.S. 626, 651 (1985). I also agree that the district court’s\ndecision must be reversed, but I would not reach the issue the\nmajority relies upon. I would reverse because the City and\n\n30 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nCounty of San Francisco cannot show that the speech it seeks\nto compel is “purely factual[.]” Id. For this reason, San\nFrancisco’s proposed warning fails what should be the\nthreshold inquiry in this case, and it violates the First\nAmendment.\n\n Zauderer considered an attorney’s First Amendment\nchallenge to a state bar rule. Id. at 632–33, 659 n.3. For\nattorneys advertising that their clients would not pay fees if\ntheir lawsuits were unsuccessful, the rule required disclosure\nthat the clients would still be liable for litigation costs. Id.\nThe Court held that the bar rule did not violate the First\nAmendment. In reaching this result, the Court observed that\n“disclosure requirements trench much more narrowly on an\nadvertiser’s interests than do flat prohibitions on speech[.]”\nId. at 651. It was critical to the Court’s decision that the bar\nrule was intended to prevent consumer deception; the Court\nstressed that the rule required only the inclusion of “purely\nfactual and uncontroversial information about the terms under\nwhich [an attorney’s] services will be available.” Id.\n(emphasis added).\n\n Any sort of compelled speech potentially infringes First\nAmendment rights, and case law approves government-\nmandated messages only in very limited contexts. See, e.g.,\nMilavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.\n229, 249–50 (2010) (upholding requirement that lawyers\ndisclose certain information in advertisements to prevent\nconsumer deception); Pharm. Care Mgmt. Ass’n v. Rowe,\n429 F.3d 294, 310 (1st Cir. 2005) (per curiam) (upholding\nrequirement that pharmacy benefit managers disclose\nconflicts of interest and certain financial arrangements); Nat’l\nElec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113–15 (2d Cir.\n2001) (upholding labeling requirement intended to increase\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 31\n\nconsumer awareness about the amount of mercury in\nproducts). Where a government-compelled message “does\nnot require the disclosure of purely factual information” and\ninstead “compels the carrying of the [government’s]\ncontroversial opinion[,]” it is clearly “unconstitutionally\ncompelled speech[.]” Video Software Dealers Ass’n v.\nSchwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009), aff’d sub\nnom. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011).\nZauderer and subsequent case law leave no doubt that any\ngovernment-compelled speech must be, at the very least,\nfactually accurate.\n\n The majority acknowledges that National Institute of\nFamily & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct.\n2361 (2018), does not require courts to begin the Zauderer\nanalysis by addressing whether the compelled speech is\nunjustified or unduly burdensome; NIFLA did not modify\nZauderer. NIFLA struck down a California law requiring that\nclinics primarily serving pregnant women provide certain\nnotices. See id. at 2378. Licensed clinics were required to\npost notices that California provides free or low-cost services,\nincluding abortions, and unlicenced clinics were required to\ngive notice that they were not licensed to provide medical\nservices. Id. at 2369. NIFLA held that the speech imposed\nupon licensed clinics did not satisfy Zauderer because, unlike\nthe disclosure required for attorneys’ services ads, the notice\nregarding the availability of abortion services did not “relate[]\nto the services that licensed clinics provide[d],” and it\nconcerned the controversial topic of abortion. Id. at 2372.\nThe notice that unlicensed clinics were compelled to post\nviolated the First Amendment because, “[e]ven under\nZauderer, a disclosure requirement cannot be ‘unjustified or\nunduly burdensome,’” and the Court ruled that California did\nnot demonstrate any justification for the compelled speech\n\n32 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nthat was more than purely hypothetical. Id. at 2377 (quoting\nZauderer, 471 U.S. at 651).\n\n Here, our court holds that Zauderer requires compelled\nspeech to be (1) purely factual; (2) noncontroversial; and\n(3) not unjustified or unduly burdensome. Additionally, the\ncompelled speech must relate to the speaker’s services or\nproducts. Where I differ is with the majority’s application of\nthe test. The majority skips whether San Francisco’s\ncompelled warning is factually accurate and jumps straight to\nasking whether the proposed warning is “unjustified or\nunduly burdensome.” The court reasons that NIFLA made\nclear that “a government-compelled disclosure that imposes\nan undue burden fails for that reason alone,” but the same is\ntrue of Zauderer’s other requirements. The majority’s\ndecision to follow NIFLA and address the “unduly\nburdensome” question first overlooks that there was no\ndispute in NIFLA about the factual accuracy of the compelled\nspeech. We have no precedent addressing a government\nproposal to appropriate commercial advertising space for the\npurpose of conveying a factually inaccurate message, but\nwhere, as here, the parties disagree about the veracity of\ncompelled speech, the court should begin by asking whether\nthe government’s message is objectively true. Deciding\nwhether a compelled message is controversial or unduly\nburdensome will often entail much more subjective\njudgments. If compelled speech is not factually accurate, the\ncourt’s inquiry should end.\n\n San Francisco seeks to require that advertisements for\nsugar-sweetened beverages include the following:\n\n WARNING: Drinking beverages with added\n sugar(s) contributes to obesity, diabetes, and\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 33\n\n tooth decay. This is a message from the City\n and County of San Francisco.\n\nTo survive the “purely factual” part of Zauderer’s test, the\nstatement that beverages with added sugars “contribute[] to”\nobesity, diabetes, and tooth decay, must be true—yet there is\nno evidence that it is. To the contrary, “diabetes” is an\numbrella term referring to both type 1 diabetes (sometimes\ncalled juvenile-onset or insulin-dependent diabetes) and type\n2 diabetes. Rather than using the generic term “diabetes,”\nmedical studies investigating causation are careful to\ndifferentiate between the two forms of the disease.1 The\nprecise causes of type 1 diabetes are unknown, but genetic\nand environmental factors, including viruses, are thought to\ncontribute to its development.2 Research demonstrates a\ncorrelation between the consumption of sugar-sweetened\nbeverages and the development of type 2 diabetes,3 but San\nFrancisco has not shown that there is any association at all\nbetween consumption of sugar-sweetened beverages and the\ndevelopment of type 1 diabetes. Ironically, the American\nDiabetes Association directly addresses this on its “Diabetes\n\n 1\n See, e.g., M. Vanstone et al., Patient Perspectives on Quality of Life\nwith Uncontrolled Type 1 Diabetes Mellitus: A Systematic Review and\nQualitative Meta-synthesis, 15 ONTARIO HEALTH TECH. ASSESSMENT\nSERIES 1 (2015); Vasanti S. Malik et al., Sugar-Sweetened Beverages,\nObesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk,\n121 CIRCULATION 1356 (2010).\n 2\n See Type 1 Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 7,\n2017), https://www.mayoclinic.org/diseases-conditions/type-1-\ndiabetes/symptoms-causes/syc-20353011.\n 3\n See, e.g., Vasanti S. Malik et al., Sugar-Sweetened Beverages and\nRisk of Metabolic Syndrome and Type 2 Diabetes: A Meta-Analysis,\n33 DIABETES CARE 2477 (2010).\n\n34 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nMyths” webpage, stating that type 1 diabetes is not caused by\nsugar, it “is caused by genetics and unknown factors that\ntrigger the onset of the disease.”4 The message that drinking\nsugar-sweetened beverages “contributes to” diabetes\n(including type 1 diabetes) is not only not “purely factual and\nuncontroversial,” it is devoid of scientific support. See\nZauderer, 471 U.S. at 651.\n\n In this particular case, it cannot be doubted that the\ngovernment’s proposed message is controversial: it would\nrequire that manufacturers, retailers, and advertisers include\nin their ads, under a banner that begins “Warning,” the\nmessage that their product contributes to diabetes even\nthough the causes of type 1 diabetes are not actually known.5\nThus, in addition to being factually inaccurate, San\nFrancisco’s proposed warning also fails Zauderer’s\nrequirement that the compelled speech be uncontroversial.\nThough I would strike the warning under either the first or\nsecond part of Zauderer’s test, my view is that, given the\nfacts of this case, we should treat Zauderer’s “purely factual”\ninquiry as the threshold question because it provides a much\nmore objective basis for disqualifying San Francisco’s\ncompelled speech. It is possible to envision a scenario in\nwhich the “unjustified or unduly burdensome” inquiry could\nprovide a more objective basis for striking a government-\nmandated message. For example, that could occur if\ndetermining the accuracy of a proposed message was not as\n\n 4\n See Diabetes Myths, AMERICAN DIABETES ASSOC.,\nhttp://www.diabetes.org/diabetes-basics/myths/ (last updated Aug. 20,\n2018).\n 5\n See Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 8, 2018),\nhttps://www.mayoclinic.org/diseases-conditions/diabetes/symptoms-\ncauses/syc-20371444.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 35\n\ncut-and-dried as it is here, or if the government tried to\ncommandeer the majority of available ad space. This is not\none of those cases. Because San Francisco’s compelled\nwarning undeniably fails Zauderer’s “purely factual” hurdle,\nwe should not reach whether the message is uncontroversial\nor unduly burdensome; both of those inquiries require the\ncourt to make more subjective judgments.\n\n San Francisco argues that its warning must not be read too\nliterally, and that consumers will understand that its warning\nrefers to type 2 diabetes. But the contention that a reasonable\nperson would understand San Francisco’s intended message\nis in tension with the goal of having a public health message\nunderstood by the maximum number of consumers, not just\nthose with sophisticated levels of health literacy. Because the\nmessage would be conveyed to sophisticated and\nunsophisticated consumers, we must read it literally.\n\n Relatedly, San Francisco acknowledges that not every\nconsumer of sugary drinks will become obese or suffer from\ntooth decay or diabetes. It argues that readers will understand\nthat its warning is intended to convey a community-wide\nmessage: that consuming sugar-sweetened beverages will\nlead to more instances of obesity, diabetes, and tooth decay\nwithin the City and County as a whole. But even if the\nqualifier “may” is read into the message, and the warning is\nunderstood as “sugary drinks may contribute to obesity,\ndiabetes and tooth decay on a community-wide basis,” it\nremains untrue with regard to type 1 diabetes.\n\n Finally, San Francisco’s compelled message is\nproblematic because it suggests that sugar is always\ndangerous for diabetics. In fact, consuming sugar-sweetened\nbeverages can be medically indicated for a type 1 diabetic\n\n36 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nwhen there are signs of hypoglycemia, a complication of type\n1 diabetes, because drinking fruit juice or soda raises blood\nsugar levels quickly.6\n\n Insisting that compelled speech be purely factual may\nseem persnickety, but there are significant constitutional\nimplications whenever the government seeks to control our\nspeech. There are also societal consequences to inaccurate\ngovernment-mandated messages. In one study, over eighty\npercent of parents of children with type 1 diabetes and over\nseventy percent of patients with type 1 diabetes, reported that\nthey are stigmatized, most commonly by the perception that\ndiabetes is a character flaw or the result of a failure in\npersonal responsibility.7\n\n San Francisco may be commended for aiming to address\nserious and growing public health problems, but by\ncompelling speech that is not factually accurate, it runs afoul\nof Zauderer’s caution—“in some instances compulsion to\nspeak may be as violative of the First Amendment as\nprohibitions on speech.” Zauderer, 471 U.S. at 650. When\nthe government takes the momentous step of mandating that\nits message be delivered by private parties, it is exceptionally\nimportant that the compelled speech be purely factual.\n\n For these reasons, though I reach the same result as the\nmajority, I would hold that the warning San Francisco seeks\n\n\n 6\n See Type 1 Diabetes: Diagnosis & Treatment, MAYO CLINIC (Aug.\n7, 2017), https://www.mayoclinic.org/diseases-conditions/type-1-diabetes/\ndiagnosis-treatment/drc-20353017.\n 7\n See Nancy F. Liu et al., Stigma in People with Type 1 or Type 2\nDiabetes, 35 CLINICAL DIABETES J. 27 (2017).\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 37\n\nto compel fails the threshold requirement of factual accuracy,\nand end the Zauderer analysis there.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363634/", "author_raw": "Judge, concurring"}, {"author": "NGUYEN, Circuit Judge, concurring", "type": "concurrence", "text": "NGUYEN, Circuit Judge, concurring in the judgment:\n\n In Central Hudson, the Supreme Court held that\nregulation of commercial speech is evaluated under an\nintermediate scrutiny standard. See Cent. Hudson Gas &\nElec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)\n(requiring that commercial speech regulation “directly\nadvances” a “substantial” governmental interest and “is not\nmore extensive than is necessary to serve that interest”).\nPrior to applying this standard, however, courts must first\ndetermine whether the speech at issue “is false, deceptive, or\nmisleading.” Zauderer v. Office of Disciplinary Counsel,\n471 U.S. 626, 638 (1985); see Central Hudson, 447 U.S. at\n566. If the regulation addresses speech that falls into one of\nthese categories, then Zauderer’s rational basis test applies.\nSee Zauderer, 471 U.S. at 651 (holding that disclosure\nrequirements comport with the First Amendment “as long as\n[they] are reasonably related to the State’s interest in\npreventing deception of consumers” (emphasis added)). With\nalmost all other types of regulations,1 “the government’s\npower is more circumscribed,” Central Hudson, 447 U.S. at\n564, and Central Hudson’s intermediate scrutiny applies.\n\n\n\n\n 1\n Presumably, the rational basis test also applies to “commercial\nspeech related to illegal activity,” Cent. Hudson, 447 U.S. at 564, which,\nlike other deceptive speech, deserves less constitutional protection, see id.\nat 563–64.\n\n38 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\n I disagree with the majority’s expansion of Zauderer’s\nrational basis review to commercial speech that is not false,\ndeceptive, or misleading. In the majority’s view, Zauderer\napplies to regulations requiring public health disclosures. But\nit is the commercial message’s accuracy—not its\ncompleteness—that demarcates the boundary between\nCentral Hudson’s intermediate scrutiny and Zauderer’s\nrational basis test. “The First Amendment’s concern for\ncommercial speech is based on the informational function of\nadvertising.” Id. at 563. “Even when advertising\ncommunicates only an incomplete version of the relevant\nfacts, the First Amendment presumes that some accurate\ninformation is better than no information at all.”2 Id. at 562.\n\n The Supreme Court stressed that “Zauderer governs our\nreview” rather than Central Hudson when a statute is\n“directed at misleading commercial speech.” Milavetz,\nGallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249\n(2010) (emphasis in original). That the “required disclosures\nare intended to combat the problem of inherently misleading\ncommercial advertisements” is one of the “essential features\nof the rule at issue in Zauderer.” Id. at 250. By treating the\n“false or misleading” requirement as non-essential, the\nmajority invites reversal.\n\n\n\n 2\n The analysis does not differ simply because Central Hudson\ninvolved prohibited content and the instant case involves mandated\ncontent. A law compelling the publication of certain content “operates as\na command in the same sense as a statute or regulation forbidding [a\nbusiness] to publish specified matter.” Miami Herald Publ’g Co. v.\nTornillo, 418 U.S. 241, 256 (1974); see also Wooley v. Maynard, 430 U.S.\n705, 714 (1977) (“[T]he right of freedom of thought protected by the First\nAmendment against state action includes both the right to speak freely and\nthe right to refrain from speaking at all.”).\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 39\n\n The Supreme Court recently had the opportunity to\nexpand Zauderer’s application beyond deceptive speech but\ndeclined to do so. See Nat’l Inst. of Family & Life Advocates\nv. Becerra (“NIFLA”), 138 S. Ct. 2361, 2376–77 (2018).\nInstead, the Court reiterated its “reluctan[ce] to mark off new\ncategories of speech for diminished constitutional\nprotection.” NIFLA, 138 S. Ct. at 2372 (quoting Denver Area\nEduc. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,\n804 (1996) (Kennedy, J., dissenting in part, concurring in\njudgment in part, and dissenting in part)). The Court was\n“especially reluctant to ‘exempt a category of speech from the\nnormal prohibition on content-based restrictions.’” Id.\n(quoting United States v. Alvarez, 567 U.S. 709, 722 (2012)\n(plurality opinion)) (alteration in NIFLA omitted).\n\n The majority’s application of Zauderer to San Francisco’s\nsugary beverage ordinance is particularly troubling given that\nit regulates speech based on content. The ordinance applies\nto “any advertisement . . . that identifies, promotes, or\nmarkets a Sugar-Sweetened Beverage for sale or use” in\nspecified media. S.F. Health Code § 4202. To the extent San\nFrancisco is concerned about the health effects of sugar in\nfood and beverages, its focus on a specific subset of sugar-\nladen products is not evenhanded. See Reed v. Town of\nGilbert, 135 S. Ct. 2218, 2232 (2015). And a requirement for\nany vendor of sugary products to convey a particular message\n“is a content-based regulation of speech.” NIFLA, 138 S. Ct.\nat 2371. While San Francisco’s goal of reducing obesity is\nlaudable, the appropriate level of scrutiny does not turn on the\ngovernment’s good intent.\n\n I join my colleagues who have previously disagreed with\napplying Zauderer outside the context of false and misleading\nspeech, see CTIA–The Wireless Ass’n v. City of Berkeley,\n\n40 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\n854 F.3d 1105, 1125 n.2 (9th Cir. 2017) (Friedland, J.,\nconcurring in part and dissenting in part) (suggesting that\n“Zauderer applies only when the government compels a\ntruthful disclosure to counter a false or misleading\nadvertisement”), vacated and remanded for reconsideration\nin light of NIFLA, 138 S. Ct. 2708 (2018), and I share their\nconcerns that our current case law will lead to “a proliferation\nof warnings and disclosures compelled by local municipal\nauthorities” that have “only a tenuous link to a ‘more than\ntrivial’ government interest,” CTIA, 873 F.3d 774, 777 (9th\nCir. 2017) (Wardlaw, J., dissenting from denial of reh’g en\nbanc).\n\n Because the majority reaches the right result under the\nwrong legal standard, I respectfully concur only in the\njudgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363634/", "author_raw": "NGUYEN, Circuit Judge, concurring"}]}	SIDNEY R THOMAS	DOROTHY W NELSON	SUSAN P GRABER	2	WILLIAM A FLETCHER; MARSHA S BERZON; SANDRA S IKUTA; MARY H MURGUIA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; ANDREW D HURWITZ; JOHN B OWENS	{}	5	1	3	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586381/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: American Beverage Assn. v. City & County of San Francisco\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nAMERICAN BEVERAGE No. 16-16072\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs-Appellants, 3:15-cv-03415-EMC\n\n and\n\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nAMERICAN BEVERAGE No. 16-16073\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs, 3:15-cv-03415-EMC\n\n and\n OPINION\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff-Appellant,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n\n Appeals from the United States District Court\n for the Northern District of California\n Edward M. Chen, District Judge, Presiding\n\n Argued and Submitted En Banc September 25, 2018\n Pasadena, California\n\n Filed January 31, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and Dorothy W.\n Nelson, Susan P. Graber, William A. Fletcher, Marsha S.\n Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan\n Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,\n and John B. Owens, Circuit Judges.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3\n\n Opinion by Judge Graber;\n Concurrence by Judge Ikuta;\n Concurrence by Judge Christen;\n Concurrence by Judge Nguyen\n\n\n SUMMARY\n\n\n Civil Rights\n\n The en banc court reversed the district court’s denial of a\npreliminary injunction and remanded in an action challenging\nthe City and County of San Francisco’s Sugar-Sweetened\nBeverage Warning Ordinance, which requires health\nwarnings on advertisements for certain sugar-sweetened\nbeverages.\n\n Plaintiffs, the American Beverage Association, California\nRetailers Association, and California State Outdoor\nAdvertising Association, argued that the Ordinance violated\ntheir First Amendment right to freedom of speech. The en\nbanc court, relying on National Institute of Family & Life\nAdvocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),\nconcluded that Plaintiffs will likely succeed on the merits of\ntheir claim that the Ordinance is an “unjustified or unduly\nburdensome disclosure requirement[] [that] might offend the\nFirst Amendment by chilling protected commercial speech.”\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\n651 (1985). The en banc court determined that the remaining\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\npreliminary injunction factors also weighed in Plaintiffs’\nfavor.\n\n Concurring, Judge Ikuta stated that because the\nAssociations had shown a likelihood of prevailing on the\nmerits and because the other factors for granting a\npreliminary injunction weighed in the Associations’ favor,\nshe agreed with the majority’s conclusion that the district\ncourt abused its discretion by denying the Associations’\nmotion for a preliminary injunction. But Judge Ikuta stated\nthat because the majority failed to apply NIFLA’s framework\nfor analyzing when government-compelled speech violates\nthe First Amendment, she dissented from the majority’s\nreasoning.\n\n Concurring in part and concurring in the judgment, Judge\nChristen, joined by Chief Judge Thomas, agreed with the\nmajority that Zauderer’s framework applied to the\ngovernment-compelled speech at issue in this case. Judge\nChristen also agreed that the district court’s decision must be\nreversed, but she would not reach the issue the majority relied\nupon. Judge Christen would reverse because the City and\nCounty of San Francisco could not show that the speech it\nsought to compel was purely factual.\n\n Concurring in the judgment, Judge Nguyen disagreed\nwith the majority’s expansion of Zauderer’s rational basis\nreview to commercial speech that is not false, deceptive, or\nmisleading. Judge Nguyen stated that because the majority\nreached the right result under the wrong legal standard, she\n[END_CASE]", "role": "user" } ]
4,578,285	UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant.	United States v. Hargrove	2019-01-02	17-2102	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Tymkovich, Baldock, Holmes", "parties": "", "opinions": [{"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n January 2, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v. No. 17-2102\n JOHN WAYNE HARGROVE,\n\n Defendant - Appellant.\n\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:16-CR-02705-RB-2)\n\n\n\nRyan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,\nOklahoma, for Defendant-Appellant.\n\n\nDustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting\nUnited States Attorney, with him on brief), Office of the United States Attorney\nfor the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.\n\n\n\n\nBefore TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.\n\n\n\nHOLMES, Circuit Judge.\n\f United States Border Patrol agents found Defendant-Appellant John Wayne\n\nHargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert\n\nnear the border between Arizona and New Mexico. They were all in Mr.\n\nHargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.\n\nMr. Hargrove was subsequently charged with two offenses: (1) conspiracy to\n\ndistribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846;\n\nand (2) possession with the intent to distribute 100 kilograms or more of a\n\nmixture and substance containing a detectable amount of marijuana, and aiding\n\nand abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and\n\n18 U.S.C. § 2. After a two-day jury trial, Mr. Hargrove was found guilty and\n\nsentenced to sixty months’ imprisonment.\n\n Mr. Hargrove now raises two challenges on appeal. First, with regard to\n\nhis trial, Mr. Hargrove asserts that the district court erred in failing to grant him a\n\nmistrial after the prosecutor elicited testimony that the district court had\n\npreviously barred. Second, Mr. Hargrove contends that the district court erred in\n\nfailing to grant him safety-valve relief under § 5C1.2 of the United States\n\nSentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the\n\ndistrict court did not err with respect to either ruling, we affirm.\n\n\n\n\n 2\n\f I\n\n A\n\n One night in February 2016, a Border Patrol agent detected seven\n\nbackpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for\n\nnarcotics trafficking. After that agent observed the backpackers, he alerted other\n\nBorder Patrol agents, who moved in to apprehend the backpackers. The agents\n\nobserved the seven backpackers enter an area containing ranching equipment. Six\n\nof the seven backpackers then left this area without their backpacks. The agents\n\ndetained these six backpackers. The backpackers were dressed in camouflage\n\nclothing and wearing carpeted booties on their feet, which are typically worn to\n\nmask footprints. They admitted they had entered the country illegally.\n\n The dispatched agents then began looking for the missing (i.e., seventh)\n\nbackpacker and the discharged backpacks. The agents discovered a truck that\n\nappeared to be occupied by two individuals who were “trying to conceal\n\nthemselves or pretend[ing] to be sleeping in the truck, kind of slouching low in\n\ntheir chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they\n\napproached, the agents could detect the smell of marijuana emanating from the\n\ntruck. An agent tapped on the truck’s window and asked the occupant on the\n\n\n\n 1\n In the narcotics-trafficking context, a “backpacker” is a person who\nsmuggles marijuana across the United States-Mexico border. See R., Vol. III, at\n36–37 (Trial Tr., dated Oct. 17–18, 2016).\n\n 3\n\fdriver’s side—a woman, later identified as Ms. Richter—to roll down the\n\nwindow. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent\n\nalso asked the occupant of the front passenger’s side of the vehicle—a man, later\n\nidentified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.\n\nThere was also a third person in the truck, in the back seat on the passenger’s\n\nside, who the agents had not originally seen. This man, later identified as Mr.\n\nSilvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-\n\nHinojos was the seventh backpacker.\n\n After the three occupants exited the truck, an agent noticed a bundle of\n\nmarijuana lying in the center of the truck’s back seat. Agents also found and\n\nseized more bundles of marijuana in the bed of the truck; these bundles were\n\npartially covered by a tarp. The government later learned (through the\n\ncooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of\n\nmarijuana from the backpackers and strapped them down in the bed of his truck.\n\nIn total, the agents seized approximately 297 pounds of marijuana from the truck.\n\n When Mr. Hargrove exited the truck, an agent patted him down and found\n\ntwo knives on his person. After another agent noticed a rifle in the truck’s back\n\nseat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”\n\nincluding the rifle. Id. at 263. The second firearm, a pistol, was found on the\n\ntruck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time\n\nof these events, Ms. Richter was wearing a jacket with an Oakland Raiders\n\n 4\n\femblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.\n\nRichter, and all of the backpackers were arrested.\n\n After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol\n\nfound in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence\n\nInvestigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.\n\nHargrove about the bundles of marijuana they had found in his truck, and he told\n\nthe agents that he believed the bundles were alfalfa, not marijuana, and that he\n\nwas simply in the area to go fishing.\n\n B\n\n Mr. Hargrove was charged with two counts: (1) conspiracy to distribute\n\nmore than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)\n\npossession with the intent to distribute 100 kilograms or more of a mixture and\n\nsubstance containing a detectable amount of marijuana, and aiding and abetting\n\nsaid possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.\n\n§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,\n\nbut these three pleaded guilty pursuant to plea agreements. Mr. Hargrove\n\nproceeded to trial.\n\n 1\n\n Prior to trial, Mr. Hargrove filed a motion in limine requesting that the\n\ndistrict court exclude all evidence regarding firearms or knives, including “all\n\npurported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14\n\n 5\n\f(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that\n\n“the possession of the firearms was simply part of his property” and that Mr.\n\n“Hargrove made no attempt to hide or distance himself from the firearms,” and it\n\nargued, among other things, that admitting evidence that one of the firearms was\n\nstolen would be unduly prejudicial. Id. at 13–14.\n\n The district court resolved this motion in a written order. It reasoned that\n\n“[t]he presence of loaded firearms that Defendant admitted belong to him, and\n\ntheir location in the cab of the truck[,] is probative of Defendant’s knowledge and\n\nof his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.\n\nand Order, dated Oct. 14, 2016). The court further ruled that the probative value\n\nof this evidence was not substantially outweighed by potential prejudice; thus, the\n\nevidence was admissible. But the court adopted a contrary stance regarding the\n\nstolen nature of one of the firearms, concluding that “the fact that one of the\n\nfirearms was stolen is not particularly probative of any fact at issue.” Id.\n\nConsequently, the court found this evidence to be inadmissible, as the risk of\n\nprejudice substantially outweighed any conceivable relevance. Thus, the court\n\ngranted the motion in part, excluding any testimony concerning the stolen nature\n\nof one of the firearms but allowing testimony about the presence of loaded\n\nfirearms in the truck.\n\n At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he\n\nknew of the drug-trafficking activity and knowingly agreed to participate in it.\n\n 6\n\fSpecifically, during opening statements, Mr. Hargrove’s counsel told the jury that\n\nMs. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had\n\nasked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they\n\nwere going to “camp out” at a fishing hole and “hang out for a few days,” id. at\n\n202–03, and that Mr. Hargrove—without any knowledge of the planned drug-\n\ntrafficking activity—agreed to do that, id. at 203.\n\n However, in eliciting testimony concerning the presence of loaded firearms\n\nin order to undermine this defense, as authorized by the district court, the\n\nprosecution strayed into forbidden territory. In response to the prosecutor’s\n\nquestions, a Border Patrol agent testified that one of the firearms had been stolen:\n\n Q. Agent [], is this -- are these the two individuals that you\n arrested that night?\n A. Yes sir.\n Q. And you notice [Ms. Richter] has also an Oakland Raiders\n decal on her jacket?\n A. Yes, yes, sir.\n Q. Is that basically what the bag was like also with where the\n gun was?\n A. Yeah, it was a black bag with an Oakland Raiders emblem\n on it.\n Q. And the defendant, though, was the one that told you\n where the gun was?\n A. Yes, sir.\n Q. Did you ever ascertain ownership of that gun?\n A. No, sir.\n ....\n Q. Did you eventually ascertain ownership of the gun?\n A. I ran records checks on both weapons and the truck, yes,\n sir.\n Q. And to whom did it come back to?\n A. The truck came back to the defendant. The rifle came\n\n 7\n\f back as a clear weapon and the pistol came back as stolen.\n\nId. at 264–65 (emphasis added).\n\n Mr. Hargrove’s counsel objected and immediately moved for a mistrial,\n\narguing that the testimony about the stolen gun could not be “cure[d] with an\n\ninstruction.” Id. at 265. The district court held a hearing on the issue outside of\n\nthe jury’s presence. The court first asked the agent if he had been instructed not\n\nto testify about the stolen nature of the gun. The agent answered that he had been\n\ninformed to disregard the fact that the gun was stolen, but “misunderstood the\n\nquestion” and stated that he did not “know how to answer [the question] without\n\n. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”\n\nconceding that he did not “frame the question correctly.” Id. Accordingly, the\n\ncourt concluded that the error lay with the prosecutor and that the agent was not\n\nto blame for the utterance. The court subsequently took the motion for a mistrial\n\nunder advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going\n\nto take under advisement the motion to mistrial. I’m going to instruct the jury\n\nwhen they get back that they are to completely disregard the answer. And then\n\nI’m going to see how the testimony proceeds and -- well, we’ll see where it\n\ngoes.”).\n\n The court called the jury back into the courtroom and gave the following\n\ninstruction:\n\n Ladies and gentlemen, in the preliminary instruction this\n\n 8\n\f morning, I told you that if, at some point in the trial, I told you\n to disregard something that you heard, then you couldn’t consider\n that matter in your deliberations later in the trial. Well, that’s\n happened. So right before you left for your break, there was a\n statement made by the agent that one of the firearms may have\n been stolen. The stolen nature of those firearms is not at issue in\n this case. That is not something that you need to consider. In\n fact, I’m going to ask you and expect you to disregard anything\n regarding that firearm or its ownership. That’s not something\n you need to concern yourself with in this trial.\n\n And as we talked this morning, what’s before you are the two\n charges, conspiracy and possession with intent on the marijuana.\n There isn’t any charge related to firearms, their ownership, and\n it would be inappropriate for you to consider those facts in\n addressing the facts that are actually in front of you and the\n elements of the charges that are actually in front of you. So\n please disregard any thought or connection relating to the\n ownership of that firearm.\n\nId. at 284–85 (emphases added). Following that instruction, the trial resumed and\n\nthe prosecutor quickly finished his cross-examination of the agent.\n\n Moreover, the prosecutor took remedial measures during the remainder of\n\nthe trial: specifically, the prosecutor (1) withdrew an exhibit displaying all\n\nweapons retrieved from the truck, see id. at 25 (“[T]he government would not\n\noppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and\n\nknives] if it will help alleviate some of the damage that was done. So since the\n\njury hasn’t seen it, the government, without objection from defense, will\n\nwithdraw that exhibit.”); (2) did not seek testimony from its expert witness\n\nregarding the use of firearms in the narcotics trade, even though it had filed a\n\nnotice with the court regarding expert testimony in this area; and (3) did not\n\n 9\n\fdiscuss either of the guns during its closing argument.\n\n After the close of all of the evidence but prior to closing arguments, the\n\ndistrict court denied the motion for mistrial, concluding that the prosecutor’s\n\nviolation of the court’s ruling was not “intentional” but rather “was a mistake . . .\n\ncaused by an inartfully asked question.” Id. at 138. The court further concluded\n\nthat, in light of all of the evidence, the improper testimony was not\n\n“consequential.” Id. The defense renewed its objection after the court’s ruling\n\nbut seemed to agree that the prosecutor had not acted in bad faith in eliciting the\n\ntestimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad\n\nfaith or not is really at issue here. What’s at issue is the prejudice of the exact\n\nnature of the testimony that was specifically excluded that came in. And it is of\n\nsuch nature that the only fair remedy to this proceeding would be to declare a\n\nmistrial.”).\n\n Then, after the closing arguments, the court again instructed the jury:\n\n During the trial, I didn’t let you hear answers to some of the\n questions that the lawyers asked and sometimes I ordered you to\n disregard things you saw or heard or I struck things from the\n record. You must completely ignore all of those things. Don’t\n even think about them. Don’t speculate about what a witness\n might have said. These things are not evidence and you’re bound\n by your oath not to let them influence your decision in any way.\n\nId. at 144. After approximately one hour of deliberation, the jury found Mr.\n\nHargrove guilty on both counts.\n\n 2\n\n 10\n\f Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a\n\nPSR noting that the mandatory-minimum sentence was sixty months’\n\nimprisonment and computing an advisory Guidelines sentencing range of sixty to\n\nsixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,\n\n2017). 2\n\n In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove\n\nargued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,\n\ntherefore, his sentence should have been calculated without regard to the\n\notherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42\n\n 2\n The Probation Office used the 2016 edition of the Guidelines in\ncalculating Mr. Hargrove’s sentence. Neither party questions this choice on\nappeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant\nto the resolution of the issues on appeal.\n 3\n The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a\nstatutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);\nthis provision permits a district court to disregard the otherwise applicable\nstatutory mandatory minimum and to sentence a defendant in accordance with the\nadvisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,\nUnited States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)\nmandates consideration of its enumerated factors . . . .”); United States v.\nAltamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the\nstatutory safety-valve provision “permits the district court to disregard a statutory\nmandatory minimum sentence and instead impose a sentence within the advisory\nsentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379\n(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,\nwas clearly intended to permit courts to sentence relatively less culpable\noffenders to sentences below an otherwise applicable mandatory statutory\nminimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing\nCommission “set[] forth the relevant provisions” of § 3553(f), but it also “has\npromulgated application notes to provide guidance in the application of the\n (continued...)\n\n 11\n\f(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.\n\nHargrove disputed whether he had “possess[ed] a firearm or other dangerous\n\nweapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.\n\nHargrove asserted that there was no evidence that the firearms’ presence “had\n\nanything to do with the marijuana transaction”; consequently, Mr. Hargrove\n\nreasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at\n\n41. After making other arguments for the application of reductions and a\n\nvariance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.\n\n During the first of two sentencing hearings, Mr. Hargrove’s counsel argued\n\nthat the transaction resulting in his arrest was not a “typical drug situation” that\n\nwas “real dangerous” because money was not exchanged between the backpackers\n\nand the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,\n\ndated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed\n\nto bring a firearm for protection. The district court rejected this argument, noting\n\n\n 3\n (...continued)\nstatute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve\nargument before the district court was consistently framed in terms of the\nGuidelines provision, § 5C1.2. Though his opening brief is sprinkled with several\ncitations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also\nprimarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s\nOpening Br. at 1 (stating the issue for review as whether “Mr. Hargrove\npossess[ed] a firearm in connection with the offenses of which he was convicted,\nsuch that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).\nGiven that the Guidelines safety-valve provision restates verbatim the relevant\ntext of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on\nthis point is of no moment in our analysis.\n\n 12\n\fthat “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,\n\nNew Mexico, in the dark of the night with a bunch of guys, backpackers, coming\n\nover the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s\n\ncounsel also argued that the weapons were unrelated to the offense, as many\n\nindividuals in remote areas carry weapons because of “snakes,” “varmints,” and\n\n“things of that nature.” Id. at 9. The court, however, expressed skepticism,\n\nquestioning “[h]ow many of those [weapons used as protection against animals]\n\n[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for\n\na “big swing” based on the application vel non of the safety valve, the court\n\nrecessed for further research on how to treat the firearms. Id. at 16.\n\n In a written order, the district court denied Mr. Hargrove safety-valve\n\nrelief. Specifically, the district court stated: “The only question at issue is\n\nwhether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”\n\nId., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.\n\n§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both\n\nguns were found in the cab of the truck, and most of the marijuana was found\n\nclose by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced\n\nknowledge of the location of the guns by voluntarily telling the agents about\n\nthem. The district court concluded that “[b]oth [the] proximity and the potential\n\n[of the weapons] to facilitate the offense” established that the weapons were\n\npossessed “in connection with the offense.” Id. at 23–24. The court further\n\n\n 13\n\freasoned that “[e]ven if the firearms did not directly facilitate the drug\n\ntransaction, they certainly had the potential to do so.” Id. at 24. The court\n\nconcluded: “Under these circumstances, Defendant has not met his burden by a\n\npreponderance of the evidence to demonstrate eligibility for the safety valve.\n\nThus, Defendant is subject to the statutory mandatory minimum sentence of 60\n\nmonths.” Id.\n\n The court then held a second sentencing hearing. During his allocution,\n\nMr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I\n\nmight come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated\n\nJune 7, 2017). He further stated that at the time of his arrest he “was four and a\n\nhalf feet away from [his] weapon.” Id. at 327. The district court subsequently\n\nsentenced Mr. Hargrove to sixty months’ imprisonment, the applicable\n\nmandatory-minimum sentence. Mr. Hargrove now appeals.\n\n II\n\n We are presented with two issues in this appeal: (1) whether the district\n\ncourt erred in failing to grant Mr. Hargrove’s motion for a mistrial after the\n\nBorder Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and\n\n(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve\n\nrelief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not\n\nerr with respect to either issue, we affirm the court’s judgment as to Mr.\n\nHargrove’s conviction and sentence.\n\n\n 14\n\f A\n\n We first address Mr. Hargrove’s assertion that the district court erred by\n\ndenying his motion for a mistrial after the Border Patrol agent testified that the\n\npistol in Mr. Hargrove’s car was stolen, in direct contravention of the district\n\ncourt’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s\n\narguments in support of this assertion are unavailing.\n\n “We review a district court’s refusal to grant a mistrial for abuse of\n\ndiscretion. The district court has discretion to grant a mistrial only when a\n\ndefendant’s right to a fair and impartial trial has been impaired.” United States v.\n\nMeridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus\n\ncalls for ‘an examination of the prejudicial impact of an error . . . viewed in the\n\ncontext of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.\n\n2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the\n\nprejudicial effect cannot be erased because the evidence is of such a nature that it\n\nnecessarily interferes with the jury’s impartial consideration of other evidence,’\n\n‘[t]he general rule is that the effect of improper evidence may be remedied by\n\nadmonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533\n\n(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053\n\n(10th Cir. 1980)).\n\n “Under the abuse of discretion standard, a trial court’s decision will not be\n\ndisturbed unless the appellate court has a definite and firm conviction that the\n\n\n 15\n\flower court has made a clear error of judgment or exceeded the bounds of\n\npermissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d\n\n1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,\n\n650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district\n\ncourt’s decision to deny a motion for a mistrial unless the decision ‘was based on\n\na clearly erroneous finding of fact or an erroneous conclusion of law or manifests\n\na clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265\n\n(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.\n\n2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.\n\n99, 108 (2013)).\n\n In determining whether a mistrial is necessary “where the prosecutor asked\n\na question her witness answered in a potentially improper way,” the\n\nnonexhaustive set of factors that we consider “include”: (1) whether the\n\nprosecutor acted in bad faith, (2) whether the district court limited the effect of\n\nthe improper statement through its instructions to the jury, and (3) whether the\n\nimproper remark was inconsequential in light of the other evidence of the\n\ndefendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in\n\nfavor of affirming the district court’s decision.\n\n 1\n\n The parties first dispute whether the prosecutor acted in bad faith in\n\neliciting the Border Patrol agent’s improper testimony about the stolen gun. The\n\n\n 16\n\fdistrict court found no bad faith by the prosecutor, specifically ruling that the\n\nprosecutor did not act in an “intentional” manner in eliciting the improper\n\ntestimony but, rather, made “a mistake,” and that the testimony was “caused by an\n\ninartfully asked question.” R., Vol. III, at 138. We conclude that the district\n\ncourt’s assessment was firmly grounded in the record evidence and legally sound.\n\n We primarily rest our conclusion on two variables that our caselaw has\n\ndeemed to be significant in the bad-faith inquiry. 4 First, we have inquired\n\nwhether “the prosecutor . . . intentionally elicit[ed] the statement in question.”\n\nMeridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017\n\n(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake\n\nappear[ed] to be innocent”). And, second, we have noted whether the prosecutor\n\nacknowledged the improper character of the testimony and took steps to mitigate\n\nits prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion\n\n 4\n During oral argument on the motion for mistrial before the district\ncourt, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not\nact in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of\nwhether it was in bad faith or not is really at issue here. What’s at issue is the\nprejudice of the exact nature of the testimony that was specifically excluded that\ncame in.”). The government acknowledges this apparent concession here but does\nnot argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to\nHargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel\nacknowledged and as the district court found, the government did not act in bad\nfaith in asking the questions that it did.”). In light of the government’s approach,\nwe are content to accord the apparent concession of Mr. Hargrove’s counsel on\nthe bad-faith issue little weight in our analysis, though it is not irrelevant. It is\nsimply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the\nprosecutor’s questioning of the agent in real time—just as the trial judge did—did\nnot at that time view the prosecution’s conduct as evidencing bad faith.\n\n 17\n\ffor mistrial in part because the “prosecutor attempted to change the subject\n\nimmediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184\n\n(noting that the prosecutor’s failure to fully acknowledge the improper nature of\n\nthe testimony “somewhat belied” her “ostensibly innocent explanation” for\n\neliciting the testimony).\n\n Turning to the first variable, though it is undisputed that the prosecutor’s\n\nquestions elicited the improper, stolen-gun testimony, the district court did not\n\nclearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),\n\nnot with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent\n\nstated that the prosecutor told him not to testify about the stolen nature of the\n\ngun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed\n\nthe agent not to testify about the stolen nature of the gun significantly undermines\n\nany notion that the prosecutor’s intent was to put the improper testimony before\n\nthe jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s\n\n“mistake appear[ed] to be innocent [because] the prosecutor informed the district\n\ncourt that she had previously instructed the witness not to discuss” the improper\n\ntestimony).\n\n In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill\n\nintent—that the prosecutor repeatedly inquired about the ownership of the gun\n\nbefore the agent uttered the improper testimony. But, at least under the\n\ncircumstances here, this tells us virtually nothing about whether the prosecutor\n\n\n 18\n\facted with bad intent or was simply careless and persistently so.\n\n And, in this factual setting, we view the second variable—the prosecutor’s\n\nconduct in acknowledging the improper character of the testimony and taking\n\nsteps to mitigate its prejudicial effects—as strongly indicating that the prosecutor\n\ndid not act in bad faith. First, in the immediate aftermath of the improper\n\ntestimony, the prosecutor admitted that his questioning was unclear and that he\n\nwas at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I\n\nthink it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.\n\nBut I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question\n\ncorrectly.”). This immediate acceptance of responsibility—while certainly not\n\ndispositive—provides some support for the conclusion that “the prosecutor did\n\nnot intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.\n\nIndeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s\n\nconduct in Meridyth. There, instead of immediately accepting responsibility for\n\nadducing the improper testimony, the prosecutor spent much of her “response to\n\nthe motion for a mistrial” trying to convince the court that there actually was an\n\nevidentiary basis for the introduction of the testimony; the prosecutor could\n\nreasonably be understood from this line of argument as saying that, even if she did\n\nintend to adduce the testimony, her conduct would not have been improper. Id.\n\nWe concluded in Meridyth that the prosecutor’s approach “somewhat belied” her\n\n“ostensibly innocent explanation,” which was based on the view that she did not\n\n\n 19\n\factually intend to adduce the testimony. Id. In short, the prosecutor’s immediate\n\nacceptance of responsibility here is significantly probative of the prosecutor’s\n\nlack of bad faith.\n\n We view in a similar light the prosecutor’s efforts to mitigate the\n\nprejudicial effects of the improper testimony throughout the remainder of the\n\ntrial. Once he resumed the examination of the agent (i.e., following the improper\n\nutterance), the prosecutor immediately veered his questioning away from the\n\nstolen gun and began inquiring about other issues; he thereafter quickly ended his\n\nexamination of the agent:\n\n Q. Agent [], did you find any binoculars in the vehicle?\n A. There was a set of night-vision goggles inside the vehicle.\n Q. Where in the vehicle were they?\n A. I don’t recall. I did not locate them, myself.\n [Prosecutor]: I’ll pass the witness, Your Honor.\n\nR., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that\n\nthe prosecutor did not intend to put the improper testimony before the jury in the\n\nfirst place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate\n\naftermath of the improper testimony, the prosecution went to great lengths to limit\n\nany damage caused by the testimony by taking the following steps: (1)\n\nwithdrawing an exhibit that displayed all of the weapons retrieved from the truck;\n\n(2) forgoing testimony from its expert witness regarding the use of firearms by\n\ndrug traffickers to safeguard their narcotics loads, even though it had given notice\n\nof expert testimony to this effect; and (3) avoiding any discussion of the guns\n\n\n 20\n\fduring its closing argument. In sum, the prosecutor’s actions—both immediately\n\nafter eliciting the improper testimony and throughout the remainder of the\n\ntrial—clearly evince a strong intent to mitigate any prejudicial effects of the\n\nimproper testimony, rather than an intent to highlight or cement such effects.\n\nSuch remedial efforts strongly suggest that the prosecution did not intend to elicit\n\nthe improper testimony to begin with.\n\n To be sure, we noted in Meridyth that one of the “helpful” inquiries\n\n“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of\n\nquestioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores\n\nthis point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of\n\nquestioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s\n\nOpening Br. at 27–28. In response, the government contends that the prosecutor’s\n\nquestioning was designed (albeit inartfully) to establish that Mr. Hargrove had\n\nclaimed ownership of the firearms, in order (1) to show that he was aware of the\n\ndrug transaction that was going on, and (2) to avoid the jury drawing an incorrect\n\ninference from the testimony that immediately preceded the ownership line of\n\nquestioning—that is, testimony about Ms. Richter wearing an Oakland Raiders\n\njacket with an emblem that matched the one on the Oakland Raiders bag\n\ncontaining the pistol. More specifically, the government contends that the\n\nprosecutor apparently reasoned that “the jury could have inferred [wrongly from\n\nthe fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s\n\n\n 21\n\fjacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was\n\naware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the\n\ngovernment argues that the testimony was relevant to undermine Mr. Hargrove’s\n\ndefense theory that Ms. Richter planned the entire event and that he agreed to go\n\nalong on the trip with lawful purposes in mind, without knowledge of the drug-\n\ntrafficking activity.\n\n On this specific point, however, we are not persuaded by the government’s\n\nargument. Recall that, among other things, the prosecutor asked the agent with\n\nrespect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o\n\nwhom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,\n\nwe are hard-pressed to discern the relevancy of any testimony regarding the legal\n\nownership of the pistol. Indeed, if the prosecutor just wanted to establish for the\n\njury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and\n\nbrought it to the drug transaction (with the attendant inference that Mr. Hargrove\n\nknew drug-trafficking activity was going on and needed the firearm to protect it),\n\nthe prosecutor could have simply asked the agent if he knew whether anyone laid\n\nclaim to the pistol during the arrests and investigation of the crime. And the\n\nagent almost certainly would have responded that Mr. Hargrove did so.\n\n Based on the foregoing, we therefore do not find the government’s\n\nargument regarding the reasonableness of its line of questioning persuasive.\n\nHowever, the prosecution can act unreasonably without acting in bad faith. Given\n\n\n 22\n\fthe totality of the circumstances here, we reject Mr. Hargrove’s suggestion that\n\nthis one factor “weighs heavily in favor of a finding that the Government acted in\n\nbad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that\n\nthe prosecutor elicited the improper testimony through inadvertence—rather than\n\nintentionally—is firmly supported by the record, and the prosecutor’s conduct in\n\npromptly acknowledging the improper character of the testimony and taking steps\n\nto mitigate its prejudicial effects strongly supports the conclusion that the\n\nprosecutor did not act at the outset in bad faith in eliciting the improper\n\ntestimony. In light of these circumstances, we feel confident in rejecting any\n\nsuggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to\n\nimproperly influence the jury” through placing improper testimony before it about\n\nthe stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,\n\nconsidering all of the circumstances, we conclude that the prosecutor did not act\n\nin bad faith, and that this criterion weighs heavily in the government’s favor.\n\n 2\n\n We next consider whether the district court’s instructions following the\n\ntestimony about the stolen gun “limited the effect of the improper statement . . .\n\nto the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also\n\nweighs heavily in the government’s favor.\n\n We presume that jurors “follow their instructions.” Id. at 1184; United\n\nStates v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors\n\n\n 23\n\fwill follow clear instructions to disregard evidence . . . .” (quoting United States\n\nv. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption\n\nmay be overcome: “[W]here the character of the testimony is such that it will\n\ncreate so strong an impression on the minds of the jurors that they will be unable\n\nto disregard it in their consideration of the case, although admonished to do so, a\n\nmistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th\n\nCir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies\n\n“unless there is an overwhelming probability that the jury will be unable to follow\n\nthe court’s instructions, and a strong likelihood that the effect of the evidence\n\nwould be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).\n\n Mr. Hargrove contends that the agent’s improper testimony made the “sort\n\nof strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his\n\nassertions on this issue are entirely conclusory. He vaguely references his\n\nopening brief’s “discussion of the third factor” (i.e., of whether the agent’s\n\ntestimony was inconsequential), id., without ever mentioning what components of\n\nthis discussion are relevant under Maestas. Indeed, he never again mentions\n\nMaestas, nor does he discuss its facts or analyze what “character of . . .\n\ntestimony” is necessary to give rise to the kind of “strong impression” that a jury\n\nmight be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.\n\nHargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d\n\n1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not\n\n\n 24\n\fpresent a cognizable issue for appellate review”); accord United States v. Gordon,\n\n710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to\n\nassessing the import of the district court’s instructions, which we presume the\n\njury followed.\n\n As noted above, the district court gave two limiting instructions, one\n\ndirectly in the wake of the improper testimony and one after the close of\n\nevidence. In brief, in its instructions, the court told the jury both (1) to disregard\n\nthe specific testimony about the stolen nature of the pistol, and (2) to completely\n\nignore any and all inferences regarding the pistol—with the clear aim of giving\n\nthe agent’s testimony no influence in the jury’s decision-making. In other words,\n\nthe court effectively instructed the jurors to act as if they had never heard the\n\nstolen-gun testimony and to avoid thinking about that testimony.\n\n Despite the seeming clarity of those instructions, Mr. Hargrove asserts that\n\nthe district court’s approach was inadequate because the court did not\n\n“specifically and expressly indicate[]” that the jury should not reach the\n\n“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s\n\ncharacter was that of a criminal and he had a propensity to commit criminal acts.”\n\nAplt.’s Opening Br. at 29. He further contends that the court should have “also\n\nspecifically instruct[ed] the jury to refrain from considering the evidence as proof\n\nof [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,\n\nMr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471\n\n\n 25\n\f(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,\n\nneither of those cases supports his position.\n\n More specifically, Mr. Hargrove argues that the district court’s instructions\n\nin this case were “confusing and not particular enough” when compared to the\n\ndistrict court’s instructions in Meridyth because they did not specify which\n\ninference the jury could not make—viz., it could not infer from the stolen nature\n\nof the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening\n\nBr. at 29. In Meridyth, the panel observed that, after testimony was elicited from\n\nwhich the jury could have inferred that the defendant threatened a witness, the\n\ndistrict court “took great pains to instruct the jury not to infer” that such a threat\n\nhad taken place and that the effect of such instructions “in th[at] case” was to\n\n“preclude the improper inference” of the threat. 5 Meridyth, 364 F.3d at 1184.\n\n 5\n To provide helpful context, we reproduce below the salient aspects of\nthe district court’s instructions quoted in Meridyth:\n\n After an exhaustive discussion with counsel and my own\n examination of this witness out of your hearing, I have\n determined a couple of things.\n\n First, it appears that the United States Attorney asked the\n question regarding why this witness moved to, in part, explain\n why the United States Government, through the United States\n Attorney’s Office, has provided $1000 in assistance for this\n individual to move. You will recall that the witness said he\n moved because of threats made against him.\n\n In part, an inference that you could draw from that statement was\n that the threats were made by [a co-defendant] and Mr. Meridyth.\n (continued...)\n\n 26\n\fJuxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove\n\nmaintains, the district court’s instructions here were inadequate. We disagree.\n\n The district court’s instructions here actually had a broader prophylactic\n\nscope than the ones in Meridyth; they necessarily reached not only the specific\n\ninference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the\n\ninference that he possessed a criminal propensity—but each and every other\n\ninference relating to the testimony about the gun. Recall that the court explicitly\n\nand unequivocally instructed the jury to “to disregard anything regarding that\n\nfirearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means\n\nanything. More specifically, anything would include any criminal-propensity\n\ninferences stemming from the stolen nature of the gun. Moreover, the court did\n\nnot take any chances that the jury might not comprehend its all-encompassing\n\ninstructions that the jury should put out of mind any inferences related to the\n\n\n\n 5\n (...continued)\n I am telling you now that that would be an improper inference,\n based on all of the information I now know. You will recall that\n this witness was working on at least 40 cases with the drug task\n force. That gives this witness ample opportunity to make a lot of\n enemies.\n\n While I have no reason to doubt that—the likelihood that what\n motivated him to move were threats, it can’t be said, based on\n any credible evidence now known to the Court that those threats\n can be connected to these defendants. And you may not infer that\n they do, based on the evidence we now have.\n\n364 F.3d at 1182–83 (quoting the record).\n\n 27\n\fstolen firearm—including possible inferences regarding Mr. Hargrove’s criminal\n\npropensities. The court expressly and specifically emphasized that the jury was\n\nnot to consider “a statement made by the agent that one of the firearms may have\n\nbeen stolen.” Id. Thus, based on the court’s instructions, we presume the jury\n\nunderstood that it was obliged not to consider any inferences based on the\n\ntestimony about the stolen firearm; this would necessarily include an inference\n\nthat Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6\n\n Mr. Hargrove’s only retort to this seems to be that the instructions were\n\n“confusing” because they “appear[ed] to only indicate that the testimony . . .\n\ncould not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s\n\nOpening Br. at 29. Mr. Hargrove is correct that the court’s instructions\n\n\n\n 6\n Our decision in Wells, moreover, underscores the adequacy of the\ncourt’s instructions. There, the subject of the defendant’s motion for mistrial was\na witness’s improper testimony that prior to trial the defendant had been offered\n“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the\ndistrict court’s denial of the motion, we observed that the court’s “curative\ninstruction . . . was ‘clear and concise and pertained to testimonial evidence from\na single witness that was amenable to easy segregation in the minds of the jury.’”\nId. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply\nstated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the\nrecord. We’re getting into an area that’s not proper for jury consideration.” Id. at\n532. Recognizing (as we do) that the adequacy of instructions must be\nunderstood in light of all of the circumstances of a particular case, it nevertheless\nwould strain credulity to believe that, after endorsing this brief curative\ninstruction in Wells, this court should conclude here that the district court’s\nbroadly protective instructions—that obliged the jury to completely disregard the\nstolen-gun testimony and any inferences related to it—were not sufficiently clear\nor otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief\ndoes not respond to the government’s similar argument based on Wells.\n\n 28\n\fspecifically cautioned the jury that the stolen-gun testimony was not relevant to\n\nits consideration of the charged crimes:\n\n [W]hat’s before you are the two charges, conspiracy and\n possession with intent on the marijuana. There isn’t any charge\n related to firearms, their ownership, and it would be\n inappropriate for you to consider those facts in addressing the\n facts that are actually in front of you and the elements of the\n charges that are actually in front of you.\n\nR., Vol. III, at 284. But in virtually the same breath the court spoke more\n\nbroadly, saying “please disregard any thought or connection relating to the\n\nownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement\n\nmust be read in the context of court’s earlier instructions to the jury, which made\n\nplain that it must “disregard anything regarding that firearm or its ownership.”\n\nId. at 284 (emphasis added). Thus, the district court’s instructions here actually\n\ncast a wider protective net than the ones that we approved of in Meridyth.\n\nCaptured within this net was precisely the concern that Mr. Hargrove points to\n\nhere—viz., the concern that the jury might infer that he had criminal propensities\n\nfrom the stolen nature of the firearm. Taking all of these instructions into\n\naccount, we are hard-pressed to understand how a reasonable jury could have not\n\nunderstood that, not only could it not consider the stolen-gun testimony in finding\n\nhim guilty of the charged offenses, but it also could not use this testimony for any\n\npurpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s\n\n 7\n In any event, we question what material prejudice Mr. Hargrove\n (continued...)\n\n 29\n\finstructions in Meridyth are unavailing.\n\n Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another\n\nwrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may\n\naddress in short order. Specifically, Mr. Hargrove turns to Hardwell to support\n\nhis contention that the district court erred by not sua sponte specifically\n\ninstructing the jury to disregard any inference arising from the stolen-gun\n\ntestimony that Mr. Hargrove had a propensity to commit crimes. In this regard,\n\nquoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have\n\n“previously held that a district court committed error by failing to advise the jury\n\n. . . in a limiting instruction” that prior uncharged misconduct cannot be used as\n\nproof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s\n\nobservation that “the court’s instructions did not expressly advise the jury that it\n\ncould not consider prior misconduct as proof of criminal disposition or\n\npropensity, which is what Rule 404(b) is intended to prevent”).\n\n However, Hardwell is inapposite: it expressly relates to a district court’s\n\n\n\n 7\n (...continued)\ncould claim even if the jury did feel free to infer from the stolen gun-testimony\nthat he had criminal propensities, so long as it also felt obliged to honor the\ncourt’s instructions not to use this inference in determining whether he was guilty\nof the charged offenses. Put another way, even if the court’s instructions gave the\njury the leeway (which they did not) to infer from the stolen-gun testimony that\nMr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove\ncould have been materially prejudiced by such an inference, if the jury stayed true\nto the court’s instructions and did not use this inference in determining his guilt\nof the charged offenses.\n\n 30\n\ffailure to employ appropriate limiting instructions in admitting prior wrongful-\n\nacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four\n\ndefendants contend[ed] the trial court abused its discretion by admitting evidence\n\nof prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury\n\nwas admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it\n\ncould consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of\n\nthe money laundering charge and 1992 cocaine sale charges, it could not consider\n\nthat evidence as proof of the conspiracy, except to the extent that it proved\n\nintent.”). Here, on the other hand, the district court did not admit the disputed\n\ntestimony for any purpose; it expressly excluded it. Therefore, there was no need\n\nfor the court to even consider providing a more specific limiting instruction\n\nregarding the testimony, as in Hardwell. Under the district court’s instructions,\n\nthe jury could not consider the stolen-gun testimony for any purpose—full stop.\n\nHardwell is thus inapposite.\n\n Accordingly, because the district court’s instructions unequivocally\n\nadmonished the jury that it could not consider the testimony or any inferences\n\nstemming from it, and because it is permissible to presume here that the jurors\n\nfollowed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs\n\nheavily in the government’s favor.\n\n 3\n\n Finally, we consider whether the improper remark was inconsequential in\n\n\n 31\n\flight of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at\n\n1183. This factor strongly undermines Mr. Hargrove’s position and, combined\n\nwith the two other factors discussed above, firmly closes the door on his mistrial\n\nchallenge.\n\n The crux of Mr. Hargrove’s argument is that the improper stolen-gun\n\ntestimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening\n\nBr. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the\n\nkind of man that would [have been] involved in a scheme to possess and distribute\n\nmarijuana – without regard to the actual evidence presented,” id. at 32–33.\n\nHowever, the weight of the “actual evidence” against Mr. Hargrove—which\n\nundermined his defense theory that he had no knowledge of the drug-trafficking\n\nactivity afoot—would have rendered any prejudice from the stolen-gun testimony\n\ninconsequential.\n\n Although the trial presented considerable evidence that pointed towards Mr.\n\nHargrove’s guilt, we need not detail it all here. That is because, even standing\n\nalone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in\n\nthe charged drug trafficking, and a reasonable jury could have concluded that this\n\nevidence convincingly belied Mr. Hargrove’s defense theory predicated on his\n\nunawareness of that activity. More specifically, without more, these two lines of\n\nevidence established that “nothing about [the Border Patrol agent’s improper]\n\ncomment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.\n\n\n 32\n\fKravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). 8\n\n First, and perhaps most damning, is the testimony from one of the\n\nbackpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that\n\nMr. Hargrove himself met the backpackers when they arrived and personally took\n\nmarijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the\n\nbundles of marijuana on the bed of the truck and covered the bundles with a tarp;\n\nand that Mr. Hargrove put one bundle of marijuana in the backseat of the truck\n\nbecause the stack of bundles in the truck bed was “too high.” R., Vol. III, at\n\n310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left\n\nentirely without specific challenges during the course of the trial. As such, that\n\nundisputed testimony unequivocally indicated that Mr. Hargrove knew of and\n\nactively participated in the drug exchange, undercutting his defense theory and\n\n 8\n In assessing the weight of the government’s evidence and the related\neffect of the agent’s improper stolen-gun testimony, we do not factor into the\ncalculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The\ngovernment asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s\ndefense theory because she testified that Mr. Hargrove was the one who arranged\nthe marijuana deal. To be sure, Ms. Richter, during her direct examination, did\nfinger Mr. Hargrove as the brains behind the operation. However, we question\nthe reliability of this ostensibly incriminating testimony because Ms. Richter\nadmitted that she had taken full responsibility for all of the events that occurred\nand wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at\n97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not\nMr. Hargrove, had planned the drug transaction and that she planned it because\nshe was in need of money). Given that the two lines of unchallenged evidence\ndiscussed above unequivocally pointed the jury to Mr. Hargrove’s\nguilt—rendering the effect of the agent’s improper stolen-gun testimony\ninconsequential—we need not rely on Ms. Richter’s dubious testimony to support\nour analysis here.\n\n 33\n\fpointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to\n\naddress the significance of this testimony on appeal.\n\n Second, the government presented testimony from numerous agents\n\nthroughout trial that Mr. Hargrove’s defense that he thought the marijuana (all\n\n297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell\n\nnothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.\n\nDid you notice anything when [Ms. Richter] rolled down the window? A. I could\n\nimmediately smell the smell of marijuana. Q. Have you spent any time around\n\nalfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,\n\ngrowing up. I’ve been around it. And also, through the work here, I’ve seen it.\n\nQ. Does it smell anything like marijuana? A. No, it does not.”); see also id. at\n\n65–66 (testifying that alfalfa is not packaged the same way as marijuana:\n\n“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.\n\nAs far as I know, they try to keep all the moisture out of it because if it gets wet\n\nor whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.\n\nAnd in your 12 years as a law enforcement officer, have you encountered a lot of\n\nmarijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.\n\nQ. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at\n\n238 (after testifying that the marijuana was packaged in bundles, an agent further\n\ntestifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your\n\nexperience, how is alfalfa packaged? A. Usually, three strand wires, maybe four\n\n\n 34\n\fstrands, sometimes twine”). The ample testimony on this front would have made\n\npatent to the jury that Mr. Hargrove’s defense was based on a far-fetched\n\nassertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.\n\nHargrove does not raise any specific challenge to this testimony on appeal.\n\n Thus, we believe that these two lines of evidence, taken by themselves,\n\nstrongly and convincingly directed the jury to a guilty verdict. Therefore, we are\n\nquite confident that any “improper effect [the Border Patrol agent’s] intimations\n\nmay have had on the jury . . . pales in comparison to the total weight of the\n\ngovernment’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that\n\nthis factor too weighs in favor of affirming the district court’s denial of Mr.\n\nHargrove’s motion for mistrial.\n\n *\n\n In light of the above analysis, and given that all three factors of the\n\nMeridyth test weigh in favor of the government, we conclude that the district\n\ncourt did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.\n\n B\n\n We now turn to Mr. Hargrove’s second challenge: he contends that the\n\ndistrict court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve\n\nadjustment during sentencing. More specifically, Mr. Hargrove argues that the\n\ndistrict court “erred by considering only Mr. Hargrove’s possession of the\n\nfirearms and their and his proximity to the marijuana, without taking into account\n\n\n 35\n\fMr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm\n\nthe district court’s safety-valve ruling. In the following discussion, we recount\n\n(1) the district court’s ruling, (2) our standard of review, (3) the legal framework\n\ngoverning our analysis, and (4) how that framework applies in this case.\n\n 1\n\n Generally, the district court evaluated whether Mr. Hargrove possessed the\n\nfirearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to\n\ntheir “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting\n\nUnited States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)\n\n(unpublished)). Applying that rubric, the district court concluded that Mr.\n\nHargrove was not eligible for the safety-valve reduction because (1) the firearms\n\nwere located “in the cab of the pickup truck with Defendant and the marijuana,”\n\nand thus were in close proximity to the drug trafficking, and (2) the firearms “had\n\nthe potential” to facilitate the drug trafficking, even if the firearms did not do so\n\ndirectly. Id.\n\n More specifically, the district court highlighted several facts in support of\n\nits decision, including: that Mr. Hargrove, the drugs, and both guns were all in the\n\ncab of the pickup truck—with the pistol on the dashboard and the rifle behind the\n\nfront seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge\n\nof the location of the guns, since he voluntarily told the agents about them. The\n\ncourt expressly took note of Mr. Hargrove’s exculpatory statements “that he had\n\n\n 36\n\fno knowledge of the marijuana, he was in the area to fish, and he thought the\n\nbundles of marijuana were alfalfa,” but effectively declined to credit those\n\nstatements, finding instead that “[t]he presence of firearms was not coincidental\n\nor entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,\n\nat 8 (regarding the presence of the guns, the district court stated: “If I’m going to\n\nmy first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the\n\ndark of the night with a bunch of guys, backpackers, coming over the hill, I might\n\nthink I needed to be protected”). In sum, the district court determined that Mr.\n\nHargrove “ha[d] not met his burden by a preponderance of the evidence to\n\ndemonstrate eligibility for the safety valve” and thus he was “subject to the\n\nstatutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.\n\n 2\n\n We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve\n\nrelief for clear error, “giving due deference to the district court’s application of\n\nthe Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379\n\nF.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is\n\nwholly without factual support in the record, or after reviewing the evidence, we\n\nare definitively and firmly convinced that a mistake has been made.’” United\n\nStates v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.\n\nIvory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of\n\nreview “applies equally regardless of whether the district court’s factual findings\n\n\n 37\n\fare based on credibility determinations or on documentary evidence.” La\n\nResolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);\n\naccord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United\n\nStates v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in\n\nanalyzing defendant’s challenge to safety-valve determination, that although\n\ndistrict court’s evaluation of attorney reports did not evaluate the defendant’s\n\ncredibility “in the typical sense, the court was considering the truthfulness and\n\n‘credibility’ of all the information he provided in various ways to the government\n\nand to the court,” and declining to disturb the district court’s “obvious[]”\n\ndetermination that defendant was not trustworthy).\n\n 3\n\n a\n\n Congress has enacted mandatory-minimum sentencing provisions for many\n\ndifferent crimes, including the drug-trafficking offenses at issue here. See, e.g.,\n\n21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the\n\noperation of those mandatory-minimum provisions for “the least culpable\n\nparticipants” in federal drug-trafficking offenses by creating an exception to\n\nmandatory-minimum sentences, known as the safety valve, which applies when\n\ndefendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 1994 WL\n\n107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297\n\nF.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to\n\n\n 38\n\fpermit courts to sentence less culpable defendants to sentences under the\n\nguidelines, instead of imposing mandatory minimum sentences.’” (quoting\n\nAcosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,\n\n1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines\n\nprovision, ‘Congress provided relief for less culpable drug offenders from its\n\nharsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171\n\nF.3d 645, 646 (8th Cir. 1999))).\n\n At Congress’s direction, the Sentencing Commission has inserted the safety\n\nvalve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.\n\nSection 5C1.2(a) provides relief under the safety valve if the defendant can meet\n\nthe following criteria:\n\n (1) the defendant does not have more than 1 criminal history\n point, as determined under the sentencing guidelines before\n application of subsection (b) of §4A1.3 (Departures Based on\n Inadequacy of Criminal History Category);\n\n (2) the defendant did not use violence or credible threats of\n violence or possess a firearm or other dangerous weapon (or\n induce another participant to do so) in connection with the\n offense;\n\n (3) the offense did not result in death or serious bodily injury to\n any person;\n\n (4) the defendant was not an organizer, leader, manager, or\n supervisor of others in the offense, as determined under the\n sentencing guidelines and was not engaged in a continuing\n criminal enterprise, as defined in 21 U.S.C. § 848; and\n\n (5) not later than the time of the sentencing hearing, the\n\n\n 39\n\f defendant has truthfully provided to the Government all\n information and evidence the defendant has concerning the\n offense or offenses that were part of the same course of conduct\n or of a common scheme or plan, but the fact that the defendant\n has no relevant or useful other information to provide or that the\n Government is already aware of the information shall not\n preclude a determination by the court that the defendant has\n complied with this requirement.\n\n§ 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of\n\nsatisfying all five criteria by a preponderance of the evidence. United States v.\n\nVerners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five\n\ncriteria, the sentencing “court shall impose a sentence without regard to a\n\nstatutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.\n\n b\n\n Here, only the second criterion—whether Mr. Hargrove “possess[ed] a\n\nfirearm . . . in connection with the offense”—is at issue because the government\n\nhas conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note\n\nthree principles informing what it means to possess a firearm “in connection with\n\nthe offense,” before summarizing one case particularly important to our analysis.\n\n i\n\n First, we have held that a firearm is possessed “in connection with the\n\noffense” if the firearm facilitates or, as relevant here, has the “potential to\n\nfacilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),\n\n 9\n These five criteria replicate the relevant statute’s requirements. See\n18 U.S.C. § 3553(f)(1)–(5).\n\n 40\n\foverruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling\n\nby an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept\n\narose out of statutory and Guidelines provisions that are analogous to the firearms\n\ncomponent of the safety-valve provision. For example, we interpreted similar\n\nlanguage in the Guidelines enhancement for defendants who possess a firearm “in\n\nconnection with another felony offense” as applying when “the weapon facilitates\n\nor has the potential to facilitate . . . the offense.” United States v. Walters, 269\n\nF.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5\n\nF.3d 464, 466–67 (10th Cir. 1993)). 10\n\n In doing so, we relied on the Supreme Court’s interpretation of whether a\n\nfirearm was used “in relation to” an offense in Smith v. United States, 508 U.S.\n\n223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,\n\n516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the\n\nSupreme Court had interpreted the “in relation to” language as requiring that “the\n\ngun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug\n\n\n\n 10\n Walters and Gomez-Arrellano both addressed previous iterations of\nU.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant\nused or possessed any firearm or ammunition in connection with another felony\noffense; or possessed or transferred any firearm or ammunition with knowledge,\nintent, or reason to believe that it would be used or possessed in connection with\nanother felony offense, increase by 4 levels. If the resulting offense level is less\nthan level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see\nalso Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines\napplicable at the time of the offense contained similar language. U.S.S.G. §\n2K2.1(b)(6)(B) (2016).\n\n 41\n\ftrafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d\n\n538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as\n\nrecognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)). 11 Thus, in\n\nlight of the foregoing, we should consider Mr. Hargrove’s possession of the\n\nfirearms to have been “in connection with the offense” only if the firearms\n\nfacilitated or had the potential to facilitate the offense.\n\n Second, we have focused on “the defendant’s own conduct” in evaluating\n\nhis eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.\n\nThus, for example, we have ruled that proof of “a joint criminal actor’s\n\nreasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a\n\ndefendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89\n\n& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).\n\nThis focus on a defendant’s own conduct is fully in accord with the Sentencing\n\nCommission’s commentary, which ordinarily controls our interpretation of the\n\nadvisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th\n\n\n\n 11\n Though the Hallum panel did not expressly mention the historical\norigins of the “potential to facilitate” linguistic formulation, other panels of this\ncourt, albeit in unpublished decisions, have recognized its historical roots. See\nUnited States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)\n(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §\n924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda\nAscencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and\naffirming the district court’s statement that Gomez-Arrellano’s “analysis is\napplicable to the application of Sentencing Guideline Section 5C1.2,” before\nrelying on Hallum’s “potential to facilitate” language).\n\n 42\n\fCir.) (noting that the Guidelines “commentary from the Sentencing Commission is\n\n‘authoritative unless it violates the Constitution or a federal statute, or is\n\ninconsistent with, or a plainly erroneous reading of, that guideline’” (quoting\n\nStinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279\n\n(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).\n\nAs relevant here, the Commission expressly “limit[ed] the accountability of the\n\ndefendant to his own conduct and conduct that he aided or abetted, counseled,\n\ncommanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4\n\n(emphasis added).\n\n Third and relatedly, Zavalza-Rodriguez emphasized that “possession in\n\n§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking\n\nthe individual defendant, the weapon and the offense.” 379 F.3d at 1187\n\n(emphasis added).\n\n ii\n\n Zavalza-Rodriguez offers helpful instruction regarding the contours of the\n\n“own conduct” and “active possession” principles described supra. Therefore, we\n\nturn to look at Zavalza-Rodriguez in more depth.\n\n Zavalza-Rodriguez discussed these two principles in explaining why the\n\nfirearms provision of the safety valve is materially distinct from a related firearms\n\nenhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level\n\nenhancement for certain convicted drug traffickers “[i]f a dangerous weapon\n\n\n 43\n\f(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In\n\nZavalza-Rodriguez, police officers found the defendant in a home that contained\n\nnarcotics, material used to package narcotics, five firearms, and a large amount of\n\ncash. 379 F.3d at 1184. The officers found one of the firearms, a loaded\n\nsemiautomatic pistol, in the room where the defendant was staying. Id. The\n\nhome was owned by a third party who also was involved in selling narcotics, and\n\nthe defendant claimed that he had only spent one night in the home. Id.\n\n In his plea agreement, the defendant had stipulated to a sentencing\n\nenhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon\n\n(including a firearm) was possessed,” based on the presence of the pistol;\n\nhowever, the defendant separately argued that he was eligible for the safety valve\n\nbecause the gun was not possessed “in connection with” the offense within the\n\nmeaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he\n\nhad constructively possessed the gun through his knowledge of the gun’s presence\n\nin the bedroom where he stayed, he denied ever actually possessing or even\n\ntouching the gun. Id. at 1184–85. The district court accepted this argument, and\n\nheld the defendant was eligible for the safety valve, because there was a lack of\n\nevidence connecting the defendant to the gun. Id. at 1184.\n\n We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence\n\nenhancement applies to a defendant for a co-conspirator’s possessing a weapon, a\n\ndefendant is not precluded from receiving a safety valve reduction [in the context\n\n\n 44\n\fof such a conspiracy] based on the defendant’s individual conduct,” if that\n\nconduct does not run afoul of the firearms component of the safety-valve\n\nprovision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough\n\nconspiracy was not charged in the information, [the defendant’s] situation is\n\nclosely analogous to the facts of these cases”). This is because in evaluating the\n\nsafety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own\n\nconduct” and “recognize a distinction between constructive and actual\n\npossession.” Id. Thus, while a co-conspirator’s possession of a firearm might\n\nsatisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision\n\nlimits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.\n\nn.4.\n\n As for “active possession” of a firearm—which, as noted, entails a “close\n\nconnection linking the individual defendant, the weapon and the offense”—we\n\nreasoned that this requirement prevents mere constructive possession (without\n\nmore) from satisfying the safety-valve provision, though it might satisfy\n\n§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87. 12 However, we\n\nspecifically distinguished situations involving mere constructive possession, as in\n\nZavalza-Rodriguez, from those where a defendant acknowledged actual\n\n 12\n See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28\n(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that\n§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of\nthe gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a\ncloser degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).\n\n 45\n\fpossession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,\n\nespecially Hallum, we acknowledged that, when a defendant “did not argue that\n\nthe gun was not actually his nor that it was merely constructively possessed,” “a\n\ngun’s proximity and potential to be used in connection with the offense” may well\n\nbe sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89). 13\n\n 13\n We made this acknowledgment in the course of harmonizing the\nprinciples announced in Zavalza-Rodriguez with our prior precedent, most notably\nin Hallum, where we held that “a firearm’s proximity and potential to facilitate\nthe offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d\nat 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of\nconflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a\nsubsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d\n1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900\nn.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to\nexplain why the dimensions of the safety-valve provision that it outlined were\ncongruent with our earlier decision in Hallum. In other words, we recognized that\nHallum was the law of this circuit. And, rather than purporting to overrule any\nportion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the\nZavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to\nharmonize its articulation of the safety-valve’s dimensions with Hallum’s holding\nthat a firearm’s proximity and potential to facilitate the offense may be\ndeterminative. Given that this harmonization endeavor was a necessary step in\nestablishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are\nentirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s\ndiscussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s\nOpening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not\nneed to consider—and did not consider—whether its opinion had an impact on\nHallum, and its discussion of Hallum is nothing more than dicta”). Compare\nMichael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,\n953 (2005) (“A holding consists of those propositions along the chosen decisional\npath or paths of reasoning that are actually decided, are based upon the facts of\nthe case, and lead to the judgment. A proposition in a case that is not holding is\ndicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184\n(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning\nsome rule of law or legal proposition not necessarily involved nor essential to\n (continued...)\n\n 46\n\f In other words, in the parlance of Zavalza-Rodriguez, in those\n\ncircumstances a court may find that a defendant “actively possessed” the firearm.\n\n379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is\n\nundisputed, the sentencing court may find—by focusing on the defendant’s own\n\nconduct—the close connection that active possession requires between the\n\ndefendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of\n\nconstructive possession, ordinarily more would be required to establish such a\n\nclose connection. Compare id. at 1186 (noting that “we focus on the defendant’s\n\nown conduct for purposes of evaluating eligibility for the safety valve, and that\n\nwe recognize a distinction between constructive and actual possession”), with\n\nAndrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that\n\nZavalza-Rodrigruez held that “one must have actual physical possession of the\n\nfirearm to make him ineligible for a safety valve reduction” and ruling in a\n\ncircumstance where the defendant argued that “no evidence showed anyone saw\n\nhim possessing a firearm” that constructive possession was sufficient to establish\n\nthe active possession that Zavalza-Rodriguez requires, where the defendant had\n\n“knowledge and control of the firearms found in the bedroom he rented and had\n\nexclusive control over”). And, once the close connection between the defendant\n\nand the firearm is established, proof that the firearm was in close proximity to the\n\n 13\n (...continued)\ndetermination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S\nL AW D ICTIONARY (6th ed. 1990)).\n\n 47\n\foffense and had the potential to facilitate the offense would round out the features\n\nof Zavalza-Rodriguez’s “active possession” requirement by demonstrating the\n\nclose connection between the firearm and the offense. See United States v.\n\nPayton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually\n\npossessed the firearms, that “[t]he mere propinquity of the weapons and drugs\n\nsuggests a connection between the two”).\n\n In sum, our cases teach that a firearm is used “in connection with an\n\noffense” when it facilitates or has the “potential to facilitate” that offense.\n\nHallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct\n\nfor purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,\n\n379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars\n\napplication of the safety valve is “active possession whereby there is a close\n\nconnection linking the individual defendant, the weapon and the offense.” Id. at\n\n1187. Lastly, in circumstances where the defendant’s own conduct evinces actual\n\npossession of the firearm, we have recognized that active possession may be\n\nshown by evidence of “[that] firearm’s proximity and potential to facilitate the\n\noffense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.\n\n 4\n\n As noted, Mr. Hargrove contends that the district court “erred by\n\nconsidering only Mr. Hargrove’s possession of the firearms and their and his\n\nproximity to the marijuana, without taking into consideration Mr. Hargrove’s own\n\n\n 48\n\fconduct—a consideration required by this Court’s authorities.” Aplt.’s Opening\n\nBr. at 7. However, under the legal principles discussed above, Mr. Hargrove’s\n\nargument cannot prevail.\n\n a\n\n In Zavalza-Rodriguez, we expressly acknowledged that when a defendant\n\nconcedes actual possession of a firearm (as opposed to mere constructive\n\npossession), the requirement of active possession—based on defendant’s own\n\nconduct—may be rounded out and completed by further evidence that the\n\npossessed firearm was in close proximity to the offense and had the potential to\n\nfacilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s\n\nassertion, on these facts—where Mr. Hargrove freely admitted that the firearms\n\nbelonged to him and indicated that he had brought them in the vehicle to the\n\nscene of his arrest—the district court’s express focus on the firearms’ proximity\n\nand potential to facilitate the offense did not reflect an analytical disregard of Mr.\n\nHargrove’s own conduct.\n\n Indeed, Mr. Hargrove’s admissions regarding possession of the firearms\n\nplaced his own conduct front and center, and they were the jumping-off point for\n\nthe court’s further inquiries into proximity and facilitation. In other words, by\n\nfocusing on Mr. Hargrove’s admissions regarding his own conduct, the court\n\ncould discern that Mr. Hargrove actually possessed the firearms at some point\n\nduring the trip—at least likely so at the trip’s beginning, when the firearms were\n\n\n 49\n\fplaced in the vehicle—and had the firearms in close proximity to him thereafter,\n\nincluding at the time of his arrest. These admissions were sufficient to establish\n\nthe close connection required for active possession between Mr. Hargrove and the\n\nfirearms. At that point, the court was left with the task of determining whether\n\nthe requisite close connection existed between the firearms and the offense, so as\n\nto establish active possession. As Zavalza-Rodriguez acknowledged, this close\n\nconnection—under circumstances such as these—could be established where the\n\nfirearm was in close proximity to and had the potential to facilitate the offense.\n\nSee 379 F.3d at 1186 n.2.\n\n And that was certainly true here. As noted, the district court specifically\n\nfound (1) that the firearms were located “in the cab of the pickup truck with\n\nDefendant and the marijuana,” and thus were in close proximity to the drug\n\ntrafficking, and (2) that the firearms—which were loaded—“had the potential” to\n\nfacilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.\n\nI, at 24. There is ample evidence in the record to support these factual findings.\n\nAnd it is well established that firearms are “‘tools of the trade’—that is, means\n\nfor the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,\n\n1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.\n\n1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see\n\nalso United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that\n\n“evidence of Defendant’s firearm possession would have been admissible to prove\n\n\n 50\n\fhis intent to distribute marijuana”). Firearms are used by drug traffickers (among\n\nother things) to protect themselves from other criminals and to safeguard their\n\nvaluable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,\n\n1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,\n\nsemi-automatic weapon on the driver’s seat of the car in which the\n\ninstrumentalities of methamphetamine manufacturing were also found is sufficient\n\nevidence from which a jury could conclude that the purpose of the gun was to\n\nprovide defense or deterrence in furtherance of attempting to manufacture\n\nmethamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.\n\n2011) (“Because the loaded rifle in this case was located immediately adjacent to\n\nthe drugs, a reasonable jury could infer that it furthered [the defendant’s] drug\n\ntrade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s\n\nloaded guns certainly had the potential to fulfill this protective purpose and, as\n\nthe district court specifically ruled, they had the potential to facilitate the drug-\n\ntrafficking offense.\n\n To be sure, Mr. Hargrove has argued that his possession of the firearms was\n\nunrelated to the drug-trafficking activity. In this regard, before the district court,\n\nhe asserted “that he had no knowledge of the marijuana, he was in the area to fish,\n\nand he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.\n\nHowever, the court effectively discounted these statements in determining that\n\n“[t]he presence of the firearms was not coincidental or entirely unrelated to the\n\n\n 51\n\fdrug transaction.” Id. at 24. 14 And nothing in this record gives us pause in\n\naccording this factual determination the customary measure of deference. See,\n\ne.g., Hooks, 551 F.3d at 1217.\n\n Mr. Hargrove repeatedly objects that the district court did not take into\n\naccount that there was “no evidence that Mr. Hargrove had ever been involved in\n\nany sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that\n\nMr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s\n\nOpening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has\n\nno criminal history relating to the distribution of drugs or the use of firearms, let\n\nalone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more\n\nin the way of the defendant’s own conduct (such as evidence the defendant had\n\nbeen running a drug operation or evidence that the defendant planned to use the\n\nweapon against human beings) that establishes the weapons were connected to the\n\noffense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a\n\ndefendant’s prior drug-trafficking activities or actual use of the firearm are\n\nnecessary to establish active possession—much less that such factors are\n\n 14\n Panels of this court have frequently declined to credit self-serving\nstatements about the purpose of a defendant’s firearm possession. See, e.g.,\nAndrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the\nreduction, the district court discredited Mr. Andrade-Vargas’s seemingly\nself-serving claims he did not own the handguns and that they were not in the\nroom for the purpose of facilitating his drug trafficking activities—both of which\nwere unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28\n(affirming district court’s decision to “discount[]” each defendant’s credibility\n“by self-interest” (quoting record)).\n\n 52\n\fdeterminative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports\n\nsuch a proposition. In fact, we have binding Tenth Circuit authority to the\n\ncontrary—that is, where neither prior drug-trafficking activity nor actual use of\n\nthe firearm appeared to play any role in our denial of safety-valve relief. See\n\nHallum, 103 F.3d at 89.\n\n In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the\n\ndistrict court failed to properly focus on his own conduct and, thus, did not\n\ncorrectly determine his eligibility for safety-valve relief. In our view, the district\n\ncourt’s ruling is sound and consistent with our caselaw.\n\n b\n\n A closer inspection of our precedential Hallum decision only serves to\n\nunderscore the correctness of our judgment. Indeed, even standing alone,\n\nHallum—which involved materially similar facts—would arguably be\n\ndeterminative. In Hallum, officers apprehended Mr. Hallum and two accomplices\n\nwho were carrying duffle bags full of marijuana from a marijuana patch to their\n\nvehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at\n\n89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.\n\n\n\n 15\n Mr. Hargrove relatedly asserts that “the precedential authority\nrequires some affirmative action on the part of a defendant to establish that a\nweapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11\n(emphasis added). But Mr. Hargrove cites no precedential authority to support\nthis assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is\nunavailing.\n\n 53\n\fHallum later conceded was his. Mr. Hallum testified that he brought the rifle “to\n\nshoot snakes, and that while he could have used it to protect against another\n\nperson he did not have that intention and ‘would have not wanted to.’” Id.\n\n(quoting record). “The district court rejected the essence of Hallum’s testimony,\n\ndeclaring that if defendants were afraid of and protecting against snakes they\n\nwould not have left the rifle in the vehicle some 200 yards from the marijuana\n\npatch.” Id. The district court further found that “the weapon was close to the\n\nmarijuana cultivation activity, and accessible.” Id. (quoting record).\n\n We affirmed the district court’s denial of Mr. Hallum’s safety-valve\n\nrequest. We deemed it significant that Mr. Hallum admitted that he had the gun\n\n“for protection.” Id. (quoting record). “This plus the district court’s other\n\nfindings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on\n\nthese facts, we held that “a firearm’s proximity and potential to facilitate the\n\noffense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,\n\nviewed through the prism crafted by our subsequent decision in Zavalza-\n\nRodriguez, all of the elements of the requisite active possession were present in\n\nHallum: Mr. Hallum conceded his actual possession of the firearm, establishing a\n\nclose connection between him and the weapon, and the proximity of the firearm to\n\nthe marijuana and the evident drug-trafficking activity of Mr. Hallum established\n\nthe close connection between the weapon and the offense. See Zavalza-\n\nRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon\n\n\n 54\n\fcould have been used as protection against other human beings, meaning that it\n\nhad the potential to facilitate his drug trafficking. Thus, the district court’s denial\n\nof safety-valve relief should come as no surprise.\n\n Nor should a similar outcome surprise us here. Indeed, Hallum virtually\n\ncommands it. 16 We begin with proximity. The officers apprehended Mr.\n\nHargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.\n\n“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle\n\nwas behind the seat.” R., Vol. I, at 21. The district court specifically noted that\n\n“[t]he firearms were located in the cab of the pickup truck with Defendant and the\n\nmarijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove\n\nand the illegal narcotics than the firearm in Hallum was to Mr. Hallum.\n\n\n\n 16\n As we previously mentioned, Hallum was overruled in part by an en\nbanc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion\nof Hallum, we erroneously applied the principle that “participants in joint\ncriminal enterprises can be accountable for the foreseeable acts of others that\nfurther the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like\nMr. Hallum, did not qualify for safety-valve relief simply because they “knew of\nthe presence of the weapon Hallum brought to the marijuana patch; [and] that it\nmight further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d\nat 90. But, importantly, the court’s holding and analysis with respect to Mr.\nHallum, which we explicate in text here, has maintained its vitality. See also\nAndrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on\nour holding in Hallum that a firearm’s proximity and potential to facilitate the\noffense may be sufficient to prevent application of the safety valve provision”);\nUnited States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)\n(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12\n(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.\nApp’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x\nat 123 (same).\n\n 55\n\f Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of\n\nthe presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told\n\nthe agents that he had “two weapons inside the vehicle,” the rifle and the pistol.\n\nId., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded\n\nrifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,\n\nas in Hallum, these admissions supported a finding that Mr. Hargrove actually\n\npossessed the firearms at some point during the trip and had them in close\n\nproximity to him.\n\n Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for\n\nprotection against snakes but the district court effectively discredited that\n\nexculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,\n\nhowever, that Hallum is not “directly analogous” to this case because, even\n\nthough Mr. Hallum testified regarding having the firearm for protection against\n\nsnakes, the Hallum panel elided the snake explanation and determined that he\n\n“had his gun ‘for protection’ in general, which necessarily implies that it could be\n\nfor ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.\n\nThe situation here, as Mr. Hargrove reasons, is different; specifically, the\n\n\n\n 17\n Indeed, in his opening statement, Mr. Hargrove’s counsel told the\njury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”\nincluding “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives\naround with.” R., Vol. III, at 204. And, during a bench conference with the\njudge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed\nownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.\n\n 56\n\fevidence indicated that he had the firearms only as protection against snakes.\n\n This line of argument is strained and unpersuasive. It is not remarkable\n\nthat the Hallum panel spoke generally of Mr. Hallum having the firearms “for\n\nprotection,” without any reference to the snakes justification, because the panel\n\nhad credited the district court’s finding that Mr. Hallum’s snake story was\n\nincredible. 103 F.3d at 89 (noting the district court’s statement that “if\n\ndefendants were afraid of and protecting against snakes they would not have left\n\nthe rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.\n\nHargrove actually is on precisely the same footing as Mr. Hallum because the\n\ndistrict court here also effectively found incredible Mr. Hargrove’s exculpatory\n\nstatements about having the guns for protection against snakes, noting specifically\n\nthat “[t]he presence of firearms was not coincidental or entirely unrelated to the\n\ndrug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found\n\nto be credible” by the district court, Mr. Hargrove is effectively asking “us for a\n\nde novo determination of credibility. [However, that] is not our role.” Payton,\n\n405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at\n\n1217.\n\n In sum, Hallum cogently underscores the correctness of our decision to\n\nuphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,\n\ngiven the similarity of Hallum’s facts to the instant case, it is arguably\n\ndeterminative.\n\n\n 57\n\f *\n\n In sum, we conclude that the district court did not err in determining that\n\nMr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.\n\n§ 5C1.2.\n\n III\n\n Based on the foregoing, we AFFIRM the district court’s judgment\n\nregarding Mr. Hargrove’s conviction and sentence.\n\n\n\n\n 58", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355538/", "author_raw": "HOLMES, Circuit Judge."}]}	TYMKOVICH	BALDOCK	HOLMES	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578285/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 2, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v. No. 17-2102\n JOHN WAYNE HARGROVE,\n\n Defendant - Appellant.\n\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:16-CR-02705-RB-2)\n\n\n\nRyan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,\nOklahoma, for Defendant-Appellant.\n\n\nDustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting\nUnited States Attorney, with him on brief), Office of the United States Attorney\nfor the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.\n\n\n\n\nBefore TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.\n\n\n\nHOLMES, Circuit Judge.\n\f United States Border Patrol agents found Defendant-Appellant John Wayne\n\nHargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert\n\nnear the border between Arizona and New Mexico. They were all in Mr.\n\nHargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.\n\nMr. Hargrove was subsequently charged with two offenses: (1) conspiracy to\n\ndistribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846;\n\nand (2) possession with the intent to distribute 100 kilograms or more of a\n\nmixture and substance containing a detectable amount of marijuana, and aiding\n\nand abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and\n\n18 U.S.C. § 2. After a two-day jury trial, Mr. Hargrove was found guilty and\n\nsentenced to sixty months’ imprisonment.\n\n Mr. Hargrove now raises two challenges on appeal. First, with regard to\n\nhis trial, Mr. Hargrove asserts that the district court erred in failing to grant him a\n\nmistrial after the prosecutor elicited testimony that the district court had\n\npreviously barred. Second, Mr. Hargrove contends that the district court erred in\n\nfailing to grant him safety-valve relief under § 5C1.2 of the United States\n\nSentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the\n\ndistrict court did not err with respect to either ruling, we affirm.\n\n\n\n\n 2\n\f I\n\n A\n\n One night in February 2016, a Border Patrol agent detected seven\n\nbackpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for\n\nnarcotics trafficking. After that agent observed the backpackers, he alerted other\n\nBorder Patrol agents, who moved in to apprehend the backpackers. The agents\n\nobserved the seven backpackers enter an area containing ranching equipment. Six\n\nof the seven backpackers then left this area without their backpacks. The agents\n\ndetained these six backpackers. The backpackers were dressed in camouflage\n\nclothing and wearing carpeted booties on their feet, which are typically worn to\n\nmask footprints. They admitted they had entered the country illegally.\n\n The dispatched agents then began looking for the missing (i.e., seventh)\n\nbackpacker and the discharged backpacks. The agents discovered a truck that\n\nappeared to be occupied by two individuals who were “trying to conceal\n\nthemselves or pretend[ing] to be sleeping in the truck, kind of slouching low in\n\ntheir chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they\n\napproached, the agents could detect the smell of marijuana emanating from the\n\ntruck. An agent tapped on the truck’s window and asked the occupant on the\n\n\n\n 1\n In the narcotics-trafficking context, a “backpacker” is a person who\nsmuggles marijuana across the United States-Mexico border. See R., Vol. III, at\n36–37 (Trial Tr., dated Oct. 17–18, 2016).\n\n 3\n\fdriver’s side—a woman, later identified as Ms. Richter—to roll down the\n\nwindow. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent\n\nalso asked the occupant of the front passenger’s side of the vehicle—a man, later\n\nidentified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.\n\nThere was also a third person in the truck, in the back seat on the passenger’s\n\nside, who the agents had not originally seen. This man, later identified as Mr.\n\nSilvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-\n\nHinojos was the seventh backpacker.\n\n After the three occupants exited the truck, an agent noticed a bundle of\n\nmarijuana lying in the center of the truck’s back seat. Agents also found and\n\nseized more bundles of marijuana in the bed of the truck; these bundles were\n\npartially covered by a tarp. The government later learned (through the\n\ncooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of\n\nmarijuana from the backpackers and strapped them down in the bed of his truck.\n\nIn total, the agents seized approximately 297 pounds of marijuana from the truck.\n\n When Mr. Hargrove exited the truck, an agent patted him down and found\n\ntwo knives on his person. After another agent noticed a rifle in the truck’s back\n\nseat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”\n\nincluding the rifle. Id. at 263. The second firearm, a pistol, was found on the\n\ntruck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time\n\nof these events, Ms. Richter was wearing a jacket with an Oakland Raiders\n\n 4\n\femblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.\n\nRichter, and all of the backpackers were arrested.\n\n After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol\n\nfound in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence\n\nInvestigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.\n\nHargrove about the bundles of marijuana they had found in his truck, and he told\n\nthe agents that he believed the bundles were alfalfa, not marijuana, and that he\n\nwas simply in the area to go fishing.\n\n B\n\n Mr. Hargrove was charged with two counts: (1) conspiracy to distribute\n\nmore than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)\n\npossession with the intent to distribute 100 kilograms or more of a mixture and\n\nsubstance containing a detectable amount of marijuana, and aiding and abetting\n\nsaid possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.\n\n§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,\n\nbut these three pleaded guilty pursuant to plea agreements. Mr. Hargrove\n\nproceeded to trial.\n\n 1\n\n Prior to trial, Mr. Hargrove filed a motion in limine requesting that the\n\ndistrict court exclude all evidence regarding firearms or knives, including “all\n\npurported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14\n\n 5\n\f(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that\n\n“the possession of the firearms was simply part of his property” and that Mr.\n\n“Hargrove made no attempt to hide or distance himself from the firearms,” and it\n\nargued, among other things, that admitting evidence that one of the firearms was\n\nstolen would be unduly prejudicial. Id. at 13–14.\n\n The district court resolved this motion in a written order. It reasoned that\n\n“[t]he presence of loaded firearms that Defendant admitted belong to him, and\n\ntheir location in the cab of the truck[,] is probative of Defendant’s knowledge and\n\nof his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.\n\nand Order, dated Oct. 14, 2016). The court further ruled that the probative value\n\nof this evidence was not substantially outweighed by potential prejudice; thus, the\n\nevidence was admissible. But the court adopted a contrary stance regarding the\n\nstolen nature of one of the firearms, concluding that “the fact that one of the\n\nfirearms was stolen is not particularly probative of any fact at issue.” Id.\n\nConsequently, the court found this evidence to be inadmissible, as the risk of\n\nprejudice substantially outweighed any conceivable relevance. Thus, the court\n\ngranted the motion in part, excluding any testimony concerning the stolen nature\n\nof one of the firearms but allowing testimony about the presence of loaded\n\nfirearms in the truck.\n\n At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he\n\nknew of the drug-trafficking activity and knowingly agreed to participate in it.\n\n 6\n\fSpecifically, during opening statements, Mr. Hargrove’s counsel told the jury that\n\nMs. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had\n\nasked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they\n\nwere going to “camp out” at a fishing hole and “hang out for a few days,” id. at\n\n202–03, and that Mr. Hargrove—without any knowledge of the planned drug-\n\ntrafficking activity—agreed to do that, id. at 203.\n\n However, in eliciting testimony concerning the presence of loaded firearms\n\nin order to undermine this defense, as authorized by the district court, the\n\nprosecution strayed into forbidden territory. In response to the prosecutor’s\n\nquestions, a Border Patrol agent testified that one of the firearms had been stolen:\n\n Q. Agent [], is this -- are these the two individuals that you\n arrested that night?\n A. Yes sir.\n Q. And you notice [Ms. Richter] has also an Oakland Raiders\n decal on her jacket?\n A. Yes, yes, sir.\n Q. Is that basically what the bag was like also with where the\n gun was?\n A. Yeah, it was a black bag with an Oakland Raiders emblem\n on it.\n Q. And the defendant, though, was the one that told you\n where the gun was?\n A. Yes, sir.\n Q. Did you ever ascertain ownership of that gun?\n A. No, sir.\n ....\n Q. Did you eventually ascertain ownership of the gun?\n A. I ran records checks on both weapons and the truck, yes,\n sir.\n Q. And to whom did it come back to?\n A. The truck came back to the defendant. The rifle came\n\n 7\n\f back as a clear weapon and the pistol came back as stolen.\n\nId. at 264–65 (emphasis added).\n\n Mr. Hargrove’s counsel objected and immediately moved for a mistrial,\n\narguing that the testimony about the stolen gun could not be “cure[d] with an\n\ninstruction.” Id. at 265. The district court held a hearing on the issue outside of\n\nthe jury’s presence. The court first asked the agent if he had been instructed not\n\nto testify about the stolen nature of the gun. The agent answered that he had been\n\ninformed to disregard the fact that the gun was stolen, but “misunderstood the\n\nquestion” and stated that he did not “know how to answer [the question] without\n\n. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”\n\nconceding that he did not “frame the question correctly.” Id. Accordingly, the\n\ncourt concluded that the error lay with the prosecutor and that the agent was not\n\nto blame for the utterance. The court subsequently took the motion for a mistrial\n\nunder advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going\n\nto take under advisement the motion to mistrial. I’m going to instruct the jury\n\nwhen they get back that they are to completely disregard the answer. And then\n\nI’m going to see how the testimony proceeds and -- well, we’ll see where it\n\ngoes.”).\n\n The court called the jury back into the courtroom and gave the following\n\ninstruction:\n\n Ladies and gentlemen, in the preliminary instruction this\n\n 8\n\f morning, I told you that if, at some point in the trial, I told you\n to disregard something that you heard, then you couldn’t consider\n that matter in your deliberations later in the trial. Well, that’s\n happened. So right before you left for your break, there was a\n statement made by the agent that one of the firearms may have\n been stolen. The stolen nature of those firearms is not at issue in\n this case. That is not something that you need to consider. In\n fact, I’m going to ask you and expect you to disregard anything\n regarding that firearm or its ownership. That’s not something\n you need to concern yourself with in this trial.\n\n And as we talked this morning, what’s before you are the two\n charges, conspiracy and possession with intent on the marijuana.\n There isn’t any charge related to firearms, their ownership, and\n it would be inappropriate for you to consider those facts in\n addressing the facts that are actually in front of you and the\n elements of the charges that are actually in front of you. So\n please disregard any thought or connection relating to the\n ownership of that firearm.\n\nId. at 284–85 (emphases added). Following that instruction, the trial resumed and\n\nthe prosecutor quickly finished his cross-examination of the agent.\n\n Moreover, the prosecutor took remedial measures during the remainder of\n\nthe trial: specifically, the prosecutor (1) withdrew an exhibit displaying all\n\nweapons retrieved from the truck, see id. at 25 (“[T]he government would not\n\noppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and\n\nknives] if it will help alleviate some of the damage that was done. So since the\n\njury hasn’t seen it, the government, without objection from defense, will\n\nwithdraw that exhibit.”); (2) did not seek testimony from its expert witness\n\nregarding the use of firearms in the narcotics trade, even though it had filed a\n\nnotice with the court regarding expert testimony in this area; and (3) did not\n\n 9\n\fdiscuss either of the guns during its closing argument.\n\n After the close of all of the evidence but prior to closing arguments, the\n\ndistrict court denied the motion for mistrial, concluding that the prosecutor’s\n\nviolation of the court’s ruling was not “intentional” but rather “was a mistake . . .\n\ncaused by an inartfully asked question.” Id. at 138. The court further concluded\n\nthat, in light of all of the evidence, the improper testimony was not\n\n“consequential.” Id. The defense renewed its objection after the court’s ruling\n\nbut seemed to agree that the prosecutor had not acted in bad faith in eliciting the\n\ntestimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad\n\nfaith or not is really at issue here. What’s at issue is the prejudice of the exact\n\nnature of the testimony that was specifically excluded that came in. And it is of\n\nsuch nature that the only fair remedy to this proceeding would be to declare a\n\nmistrial.”).\n\n Then, after the closing arguments, the court again instructed the jury:\n\n During the trial, I didn’t let you hear answers to some of the\n questions that the lawyers asked and sometimes I ordered you to\n disregard things you saw or heard or I struck things from the\n record. You must completely ignore all of those things. Don’t\n even think about them. Don’t speculate about what a witness\n might have said. These things are not evidence and you’re bound\n by your oath not to let them influence your decision in any way.\n\nId. at 144. After approximately one hour of deliberation, the jury found Mr.\n\nHargrove guilty on both counts.\n\n 2\n\n 10\n\f Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a\n\nPSR noting that the mandatory-minimum sentence was sixty months’\n\nimprisonment and computing an advisory Guidelines sentencing range of sixty to\n\nsixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,\n\n2017). 2\n\n In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove\n\nargued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,\n\ntherefore, his sentence should have been calculated without regard to the\n\notherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42\n\n 2\n The Probation Office used the 2016 edition of the Guidelines in\ncalculating Mr. Hargrove’s sentence. Neither party questions this choice on\nappeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant\nto the resolution of the issues on appeal.\n 3\n The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a\nstatutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);\nthis provision permits a district court to disregard the otherwise applicable\nstatutory mandatory minimum and to sentence a defendant in accordance with the\nadvisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,\nUnited States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)\nmandates consideration of its enumerated factors . . . .”); United States v.\nAltamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the\nstatutory safety-valve provision “permits the district court to disregard a statutory\nmandatory minimum sentence and instead impose a sentence within the advisory\nsentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379\n(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,\nwas clearly intended to permit courts to sentence relatively less culpable\noffenders to sentences below an otherwise applicable mandatory statutory\nminimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing\nCommission “set[] forth the relevant provisions” of § 3553(f), but it also “has\npromulgated application notes to provide guidance in the application of the\n (continued...)\n\n 11\n\f(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.\n\nHargrove disputed whether he had “possess[ed] a firearm or other dangerous\n\nweapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.\n\nHargrove asserted that there was no evidence that the firearms’ presence “had\n\nanything to do with the marijuana transaction”; consequently, Mr. Hargrove\n\nreasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at\n\n41. After making other arguments for the application of reductions and a\n\nvariance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.\n\n During the first of two sentencing hearings, Mr. Hargrove’s counsel argued\n\nthat the transaction resulting in his arrest was not a “typical drug situation” that\n\nwas “real dangerous” because money was not exchanged between the backpackers\n\nand the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,\n\ndated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed\n\nto bring a firearm for protection. The district court rejected this argument, noting\n\n\n 3\n (...continued)\nstatute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve\nargument before the district court was consistently framed in terms of the\nGuidelines provision, § 5C1.2. Though his opening brief is sprinkled with several\ncitations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also\nprimarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s\nOpening Br. at 1 (stating the issue for review as whether “Mr. Hargrove\npossess[ed] a firearm in connection with the offenses of which he was convicted,\nsuch that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).\nGiven that the Guidelines safety-valve provision restates verbatim the relevant\ntext of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on\nthis point is of no moment in our analysis.\n\n 12\n\fthat “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,\n\nNew Mexico, in the dark of the night with a bunch of guys, backpackers, coming\n\nover the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s\n\ncounsel also argued that the weapons were unrelated to the offense, as many\n\nindividuals in remote areas carry weapons because of “snakes,” “varmints,” and\n\n“things of that nature.” Id. at 9. The court, however, expressed skepticism,\n\nquestioning “[h]ow many of those [weapons used as protection against animals]\n\n[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for\n\na “big swing” based on the application vel non of the safety valve, the court\n\nrecessed for further research on how to treat the firearms. Id. at 16.\n\n In a written order, the district court denied Mr. Hargrove safety-valve\n\nrelief. Specifically, the district court stated: “The only question at issue is\n\nwhether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”\n\nId., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.\n\n§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both\n\nguns were found in the cab of the truck, and most of the marijuana was found\n\nclose by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced\n\nknowledge of the location of the guns by voluntarily telling the agents about\n\nthem. The district court concluded that “[b]oth [the] proximity and the potential\n\n[of the weapons] to facilitate the offense” established that the weapons were\n\npossessed “in connection with the offense.” Id. at 23–24. The court further\n\n\n 13\n\freasoned that “[e]ven if the firearms did not directly facilitate the drug\n\ntransaction, they certainly had the potential to do so.” Id. at 24. The court\n\nconcluded: “Under these circumstances, Defendant has not met his burden by a\n\npreponderance of the evidence to demonstrate eligibility for the safety valve.\n\nThus, Defendant is subject to the statutory mandatory minimum sentence of 60\n\nmonths.” Id.\n\n The court then held a second sentencing hearing. During his allocution,\n\nMr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I\n\nmight come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated\n\nJune 7, 2017). He further stated that at the time of his arrest he “was four and a\n\nhalf feet away from [his] weapon.” Id. at 327. The district court subsequently\n\nsentenced Mr. Hargrove to sixty months’ imprisonment, the applicable\n\nmandatory-minimum sentence. Mr. Hargrove now appeals.\n\n II\n\n We are presented with two issues in this appeal: (1) whether the district\n\ncourt erred in failing to grant Mr. Hargrove’s motion for a mistrial after the\n\nBorder Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and\n\n(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve\n\nrelief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not\n\nerr with respect to either issue, we affirm the court’s judgment as to Mr.\n\nHargrove’s conviction and sentence.\n\n\n 14\n\f A\n\n We first address Mr. Hargrove’s assertion that the district court erred by\n\ndenying his motion for a mistrial after the Border Patrol agent testified that the\n\npistol in Mr. Hargrove’s car was stolen, in direct contravention of the district\n\ncourt’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s\n\narguments in support of this assertion are unavailing.\n\n “We review a district court’s refusal to grant a mistrial for abuse of\n\ndiscretion. The district court has discretion to grant a mistrial only when a\n\ndefendant’s right to a fair and impartial trial has been impaired.” United States v.\n\nMeridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus\n\ncalls for ‘an examination of the prejudicial impact of an error . . . viewed in the\n\ncontext of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.\n\n2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the\n\nprejudicial effect cannot be erased because the evidence is of such a nature that it\n\nnecessarily interferes with the jury’s impartial consideration of other evidence,’\n\n‘[t]he general rule is that the effect of improper evidence may be remedied by\n\nadmonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533\n\n(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053\n\n(10th Cir. 1980)).\n\n “Under the abuse of discretion standard, a trial court’s decision will not be\n\ndisturbed unless the appellate court has a definite and firm conviction that the\n\n\n 15\n\flower court has made a clear error of judgment or exceeded the bounds of\n\npermissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d\n\n1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,\n\n650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district\n\ncourt’s decision to deny a motion for a mistrial unless the decision ‘was based on\n\na clearly erroneous finding of fact or an erroneous conclusion of law or manifests\n\na clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265\n\n(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.\n\n2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.\n\n99, 108 (2013)).\n\n In determining whether a mistrial is necessary “where the prosecutor asked\n\na question her witness answered in a potentially improper way,” the\n\nnonexhaustive set of factors that we consider “include”: (1) whether the\n\nprosecutor acted in bad faith, (2) whether the district court limited the effect of\n\nthe improper statement through its instructions to the jury, and (3) whether the\n\nimproper remark was inconsequential in light of the other evidence of the\n\ndefendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in\n\nfavor of affirming the district court’s decision.\n\n 1\n\n The parties first dispute whether the prosecutor acted in bad faith in\n\neliciting the Border Patrol agent’s improper testimony about the stolen gun. The\n\n\n 16\n\fdistrict court found no bad faith by the prosecutor, specifically ruling that the\n\nprosecutor did not act in an “intentional” manner in eliciting the improper\n\ntestimony but, rather, made “a mistake,” and that the testimony was “caused by an\n\ninartfully asked question.” R., Vol. III, at 138. We conclude that the district\n\ncourt’s assessment was firmly grounded in the record evidence and legally sound.\n\n We primarily rest our conclusion on two variables that our caselaw has\n\ndeemed to be significant in the bad-faith inquiry. 4 First, we have inquired\n\nwhether “the prosecutor . . . intentionally elicit[ed] the statement in question.”\n\nMeridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017\n\n(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake\n\nappear[ed] to be innocent”). And, second, we have noted whether the prosecutor\n\nacknowledged the improper character of the testimony and took steps to mitigate\n\nits prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion\n\n 4\n During oral argument on the motion for mistrial before the district\ncourt, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not\nact in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of\nwhether it was in bad faith or not is really at issue here. What’s at issue is the\nprejudice of the exact nature of the testimony that was specifically excluded that\ncame in.”). The government acknowledges this apparent concession here but does\nnot argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to\nHargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel\nacknowledged and as the district court found, the government did not act in bad\nfaith in asking the questions that it did.”). In light of the government’s approach,\nwe are content to accord the apparent concession of Mr. Hargrove’s counsel on\nthe bad-faith issue little weight in our analysis, though it is not irrelevant. It is\nsimply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the\nprosecutor’s questioning of the agent in real time—just as the trial judge did—did\nnot at that time view the prosecution’s conduct as evidencing bad faith.\n\n 17\n\ffor mistrial in part because the “prosecutor attempted to change the subject\n\nimmediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184\n\n(noting that the prosecutor’s failure to fully acknowledge the improper nature of\n\nthe testimony “somewhat belied” her “ostensibly innocent explanation” for\n\neliciting the testimony).\n\n Turning to the first variable, though it is undisputed that the prosecutor’s\n\nquestions elicited the improper, stolen-gun testimony, the district court did not\n\nclearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),\n\nnot with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent\n\nstated that the prosecutor told him not to testify about the stolen nature of the\n\ngun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed\n\nthe agent not to testify about the stolen nature of the gun significantly undermines\n\nany notion that the prosecutor’s intent was to put the improper testimony before\n\nthe jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s\n\n“mistake appear[ed] to be innocent [because] the prosecutor informed the district\n\ncourt that she had previously instructed the witness not to discuss” the improper\n\ntestimony).\n\n In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill\n\nintent—that the prosecutor repeatedly inquired about the ownership of the gun\n\nbefore the agent uttered the improper testimony. But, at least under the\n\ncircumstances here, this tells us virtually nothing about whether the prosecutor\n\n\n 18\n\facted with bad intent or was simply careless and persistently so.\n\n And, in this factual setting, we view the second variable—the prosecutor’s\n\nconduct in acknowledging the improper character of the testimony and taking\n\nsteps to mitigate its prejudicial effects—as strongly indicating that the prosecutor\n\ndid not act in bad faith. First, in the immediate aftermath of the improper\n\ntestimony, the prosecutor admitted that his questioning was unclear and that he\n\nwas at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I\n\nthink it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.\n\nBut I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question\n\ncorrectly.”). This immediate acceptance of responsibility—while certainly not\n\ndispositive—provides some support for the conclusion that “the prosecutor did\n\nnot intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.\n\nIndeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s\n\nconduct in Meridyth. There, instead of immediately accepting responsibility for\n\nadducing the improper testimony, the prosecutor spent much of her “response to\n\nthe motion for a mistrial” trying to convince the court that there actually was an\n\nevidentiary basis for the introduction of the testimony; the prosecutor could\n\nreasonably be understood from this line of argument as saying that, even if she did\n\nintend to adduce the testimony, her conduct would not have been improper. Id.\n\nWe concluded in Meridyth that the prosecutor’s approach “somewhat belied” her\n\n“ostensibly innocent explanation,” which was based on the view that she did not\n\n\n 19\n\factually intend to adduce the testimony. Id. In short, the prosecutor’s immediate\n\nacceptance of responsibility here is significantly probative of the prosecutor’s\n\nlack of bad faith.\n\n We view in a similar light the prosecutor’s efforts to mitigate the\n\nprejudicial effects of the improper testimony throughout the remainder of the\n\ntrial. Once he resumed the examination of the agent (i.e., following the improper\n\nutterance), the prosecutor immediately veered his questioning away from the\n\nstolen gun and began inquiring about other issues; he thereafter quickly ended his\n\nexamination of the agent:\n\n Q. Agent [], did you find any binoculars in the vehicle?\n A. There was a set of night-vision goggles inside the vehicle.\n Q. Where in the vehicle were they?\n A. I don’t recall. I did not locate them, myself.\n [Prosecutor]: I’ll pass the witness, Your Honor.\n\nR., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that\n\nthe prosecutor did not intend to put the improper testimony before the jury in the\n\nfirst place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate\n\naftermath of the improper testimony, the prosecution went to great lengths to limit\n\nany damage caused by the testimony by taking the following steps: (1)\n\nwithdrawing an exhibit that displayed all of the weapons retrieved from the truck;\n\n(2) forgoing testimony from its expert witness regarding the use of firearms by\n\ndrug traffickers to safeguard their narcotics loads, even though it had given notice\n\nof expert testimony to this effect; and (3) avoiding any discussion of the guns\n\n\n 20\n\fduring its closing argument. In sum, the prosecutor’s actions—both immediately\n\nafter eliciting the improper testimony and throughout the remainder of the\n\ntrial—clearly evince a strong intent to mitigate any prejudicial effects of the\n\nimproper testimony, rather than an intent to highlight or cement such effects.\n\nSuch remedial efforts strongly suggest that the prosecution did not intend to elicit\n\nthe improper testimony to begin with.\n\n To be sure, we noted in Meridyth that one of the “helpful” inquiries\n\n“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of\n\nquestioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores\n\nthis point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of\n\nquestioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s\n\nOpening Br. at 27–28. In response, the government contends that the prosecutor’s\n\nquestioning was designed (albeit inartfully) to establish that Mr. Hargrove had\n\nclaimed ownership of the firearms, in order (1) to show that he was aware of the\n\ndrug transaction that was going on, and (2) to avoid the jury drawing an incorrect\n\ninference from the testimony that immediately preceded the ownership line of\n\nquestioning—that is, testimony about Ms. Richter wearing an Oakland Raiders\n\njacket with an emblem that matched the one on the Oakland Raiders bag\n\ncontaining the pistol. More specifically, the government contends that the\n\nprosecutor apparently reasoned that “the jury could have inferred [wrongly from\n\nthe fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s\n\n\n 21\n\fjacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was\n\naware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the\n\ngovernment argues that the testimony was relevant to undermine Mr. Hargrove’s\n\ndefense theory that Ms. Richter planned the entire event and that he agreed to go\n\nalong on the trip with lawful purposes in mind, without knowledge of the drug-\n\ntrafficking activity.\n\n On this specific point, however, we are not persuaded by the government’s\n\nargument. Recall that, among other things, the prosecutor asked the agent with\n\nrespect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o\n\nwhom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,\n\nwe are hard-pressed to discern the relevancy of any testimony regarding the legal\n\nownership of the pistol. Indeed, if the prosecutor just wanted to establish for the\n\njury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and\n\nbrought it to the drug transaction (with the attendant inference that Mr. Hargrove\n\nknew drug-trafficking activity was going on and needed the firearm to protect it),\n\nthe prosecutor could have simply asked the agent if he knew whether anyone laid\n\nclaim to the pistol during the arrests and investigation of the crime. And the\n\nagent almost certainly would have responded that Mr. Hargrove did so.\n\n Based on the foregoing, we therefore do not find the government’s\n\nargument regarding the reasonableness of its line of questioning persuasive.\n\nHowever, the prosecution can act unreasonably without acting in bad faith. Given\n\n\n 22\n\fthe totality of the circumstances here, we reject Mr. Hargrove’s suggestion that\n\nthis one factor “weighs heavily in favor of a finding that the Government acted in\n\nbad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that\n\nthe prosecutor elicited the improper testimony through inadvertence—rather than\n\nintentionally—is firmly supported by the record, and the prosecutor’s conduct in\n\npromptly acknowledging the improper character of the testimony and taking steps\n\nto mitigate its prejudicial effects strongly supports the conclusion that the\n\nprosecutor did not act at the outset in bad faith in eliciting the improper\n\ntestimony. In light of these circumstances, we feel confident in rejecting any\n\nsuggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to\n\nimproperly influence the jury” through placing improper testimony before it about\n\nthe stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,\n\nconsidering all of the circumstances, we conclude that the prosecutor did not act\n\nin bad faith, and that this criterion weighs heavily in the government’s favor.\n\n 2\n\n We next consider whether the district court’s instructions following the\n\ntestimony about the stolen gun “limited the effect of the improper statement . . .\n\nto the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also\n\nweighs heavily in the government’s favor.\n\n We presume that jurors “follow their instructions.” Id. at 1184; United\n\nStates v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors\n\n\n 23\n\fwill follow clear instructions to disregard evidence . . . .” (quoting United States\n\nv. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption\n\nmay be overcome: “[W]here the character of the testimony is such that it will\n\ncreate so strong an impression on the minds of the jurors that they will be unable\n\nto disregard it in their consideration of the case, although admonished to do so, a\n\nmistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th\n\nCir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies\n\n“unless there is an overwhelming probability that the jury will be unable to follow\n\nthe court’s instructions, and a strong likelihood that the effect of the evidence\n\nwould be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).\n\n Mr. Hargrove contends that the agent’s improper testimony made the “sort\n\nof strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his\n\nassertions on this issue are entirely conclusory. He vaguely references his\n\nopening brief’s “discussion of the third factor” (i.e., of whether the agent’s\n\ntestimony was inconsequential), id., without ever mentioning what components of\n\nthis discussion are relevant under Maestas. Indeed, he never again mentions\n\nMaestas, nor does he discuss its facts or analyze what “character of . . .\n\ntestimony” is necessary to give rise to the kind of “strong impression” that a jury\n\nmight be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.\n\nHargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d\n\n1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not\n\n\n 24\n\fpresent a cognizable issue for appellate review”); accord United States v. Gordon,\n\n710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to\n\nassessing the import of the district court’s instructions, which we presume the\n\njury followed.\n\n As noted above, the district court gave two limiting instructions, one\n\ndirectly in the wake of the improper testimony and one after the close of\n\nevidence. In brief, in its instructions, the court told the jury both (1) to disregard\n\nthe specific testimony about the stolen nature of the pistol, and (2) to completely\n\nignore any and all inferences regarding the pistol—with the clear aim of giving\n\nthe agent’s testimony no influence in the jury’s decision-making. In other words,\n\nthe court effectively instructed the jurors to act as if they had never heard the\n\nstolen-gun testimony and to avoid thinking about that testimony.\n\n Despite the seeming clarity of those instructions, Mr. Hargrove asserts that\n\nthe district court’s approach was inadequate because the court did not\n\n“specifically and expressly indicate[]” that the jury should not reach the\n\n“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s\n\ncharacter was that of a criminal and he had a propensity to commit criminal acts.”\n\nAplt.’s Opening Br. at 29. He further contends that the court should have “also\n\nspecifically instruct[ed] the jury to refrain from considering the evidence as proof\n\nof [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,\n\nMr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471\n\n\n 25\n\f(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,\n\nneither of those cases supports his position.\n\n More specifically, Mr. Hargrove argues that the district court’s instructions\n\nin this case were “confusing and not particular enough” when compared to the\n\ndistrict court’s instructions in Meridyth because they did not specify which\n\ninference the jury could not make—viz., it could not infer from the stolen nature\n\nof the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening\n\nBr. at 29. In Meridyth, the panel observed that, after testimony was elicited from\n\nwhich the jury could have inferred that the defendant threatened a witness, the\n\ndistrict court “took great pains to instruct the jury not to infer” that such a threat\n\nhad taken place and that the effect of such instructions “in th[at] case” was to\n\n“preclude the improper inference” of the threat. 5 Meridyth, 364 F.3d at 1184.\n\n 5\n To provide helpful context, we reproduce below the salient aspects of\nthe district court’s instructions quoted in Meridyth:\n\n After an exhaustive discussion with counsel and my own\n examination of this witness out of your hearing, I have\n determined a couple of things.\n\n First, it appears that the United States Attorney asked the\n question regarding why this witness moved to, in part, explain\n why the United States Government, through the United States\n Attorney’s Office, has provided $1000 in assistance for this\n individual to move. You will recall that the witness said he\n moved because of threats made against him.\n\n In part, an inference that you could draw from that statement was\n that the threats were made by [a co-defendant] and Mr. Meridyth.\n (continued...)\n\n 26\n\fJuxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove\n\nmaintains, the district court’s instructions here were inadequate. We disagree.\n\n The district court’s instructions here actually had a broader prophylactic\n\nscope than the ones in Meridyth; they necessarily reached not only the specific\n\ninference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the\n\ninference that he possessed a criminal propensity—but each and every other\n\ninference relating to the testimony about the gun. Recall that the court explicitly\n\nand unequivocally instructed the jury to “to disregard anything regarding that\n\nfirearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means\n\nanything. More specifically, anything would include any criminal-propensity\n\ninferences stemming from the stolen nature of the gun. Moreover, the court did\n\nnot take any chances that the jury might not comprehend its all-encompassing\n\ninstructions that the jury should put out of mind any inferences related to the\n\n\n\n 5\n (...continued)\n I am telling you now that that would be an improper inference,\n based on all of the information I now know. You will recall that\n this witness was working on at least 40 cases with the drug task\n force. That gives this witness ample opportunity to make a lot of\n enemies.\n\n While I have no reason to doubt that—the likelihood that what\n motivated him to move were threats, it can’t be said, based on\n any credible evidence now known to the Court that those threats\n can be connected to these defendants. And you may not infer that\n they do, based on the evidence we now have.\n\n364 F.3d at 1182–83 (quoting the record).\n\n 27\n\fstolen firearm—including possible inferences regarding Mr. Hargrove’s criminal\n\npropensities. The court expressly and specifically emphasized that the jury was\n\nnot to consider “a statement made by the agent that one of the firearms may have\n\nbeen stolen.” Id. Thus, based on the court’s instructions, we presume the jury\n\nunderstood that it was obliged not to consider any inferences based on the\n\ntestimony about the stolen firearm; this would necessarily include an inference\n\nthat Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6\n\n Mr. Hargrove’s only retort to this seems to be that the instructions were\n\n“confusing” because they “appear[ed] to only indicate that the testimony . . .\n\ncould not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s\n\nOpening Br. at 29. Mr. Hargrove is correct that the court’s instructions\n\n\n\n 6\n Our decision in Wells, moreover, underscores the adequacy of the\ncourt’s instructions. There, the subject of the defendant’s motion for mistrial was\na witness’s improper testimony that prior to trial the defendant had been offered\n“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the\ndistrict court’s denial of the motion, we observed that the court’s “curative\ninstruction . . . was ‘clear and concise and pertained to testimonial evidence from\na single witness that was amenable to easy segregation in the minds of the jury.’”\nId. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply\nstated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the\nrecord. We’re getting into an area that’s not proper for jury consideration.” Id. at\n532. Recognizing (as we do) that the adequacy of instructions must be\nunderstood in light of all of the circumstances of a particular case, it nevertheless\nwould strain credulity to believe that, after endorsing this brief curative\ninstruction in Wells, this court should conclude here that the district court’s\nbroadly protective instructions—that obliged the jury to completely disregard the\nstolen-gun testimony and any inferences related to it—were not sufficiently clear\nor otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief\ndoes not respond to the government’s similar argument based on Wells.\n\n 28\n\fspecifically cautioned the jury that the stolen-gun testimony was not relevant to\n\nits consideration of the charged crimes:\n\n [W]hat’s before you are the two charges, conspiracy and\n possession with intent on the marijuana. There isn’t any charge\n related to firearms, their ownership, and it would be\n inappropriate for you to consider those facts in addressing the\n facts that are actually in front of you and the elements of the\n charges that are actually in front of you.\n\nR., Vol. III, at 284. But in virtually the same breath the court spoke more\n\nbroadly, saying “please disregard any thought or connection relating to the\n\nownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement\n\nmust be read in the context of court’s earlier instructions to the jury, which made\n\nplain that it must “disregard anything regarding that firearm or its ownership.”\n\nId. at 284 (emphasis added). Thus, the district court’s instructions here actually\n\ncast a wider protective net than the ones that we approved of in Meridyth.\n\nCaptured within this net was precisely the concern that Mr. Hargrove points to\n\nhere—viz., the concern that the jury might infer that he had criminal propensities\n\nfrom the stolen nature of the firearm. Taking all of these instructions into\n\naccount, we are hard-pressed to understand how a reasonable jury could have not\n\nunderstood that, not only could it not consider the stolen-gun testimony in finding\n\nhim guilty of the charged offenses, but it also could not use this testimony for any\n\npurpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s\n\n 7\n In any event, we question what material prejudice Mr. Hargrove\n (continued...)\n\n 29\n\finstructions in Meridyth are unavailing.\n\n Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another\n\nwrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may\n\naddress in short order. Specifically, Mr. Hargrove turns to Hardwell to support\n\nhis contention that the district court erred by not sua sponte specifically\n\ninstructing the jury to disregard any inference arising from the stolen-gun\n\ntestimony that Mr. Hargrove had a propensity to commit crimes. In this regard,\n\nquoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have\n\n“previously held that a district court committed error by failing to advise the jury\n\n. . . in a limiting instruction” that prior uncharged misconduct cannot be used as\n\nproof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s\n\nobservation that “the court’s instructions did not expressly advise the jury that it\n\ncould not consider prior misconduct as proof of criminal disposition or\n\npropensity, which is what Rule 404(b) is intended to prevent”).\n\n However, Hardwell is inapposite: it expressly relates to a district court’s\n\n\n\n 7\n (...continued)\ncould claim even if the jury did feel free to infer from the stolen gun-testimony\nthat he had criminal propensities, so long as it also felt obliged to honor the\ncourt’s instructions not to use this inference in determining whether he was guilty\nof the charged offenses. Put another way, even if the court’s instructions gave the\njury the leeway (which they did not) to infer from the stolen-gun testimony that\nMr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove\ncould have been materially prejudiced by such an inference, if the jury stayed true\nto the court’s instructions and did not use this inference in determining his guilt\nof the charged offenses.\n\n 30\n\ffailure to employ appropriate limiting instructions in admitting prior wrongful-\n\nacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four\n\ndefendants contend[ed] the trial court abused its discretion by admitting evidence\n\nof prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury\n\nwas admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it\n\ncould consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of\n\nthe money laundering charge and 1992 cocaine sale charges, it could not consider\n\nthat evidence as proof of the conspiracy, except to the extent that it proved\n\nintent.”). Here, on the other hand, the district court did not admit the disputed\n\ntestimony for any purpose; it expressly excluded it. Therefore, there was no need\n\nfor the court to even consider providing a more specific limiting instruction\n\nregarding the testimony, as in Hardwell. Under the district court’s instructions,\n\nthe jury could not consider the stolen-gun testimony for any purpose—full stop.\n\nHardwell is thus inapposite.\n\n Accordingly, because the district court’s instructions unequivocally\n\nadmonished the jury that it could not consider the testimony or any inferences\n\nstemming from it, and because it is permissible to presume here that the jurors\n\nfollowed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs\n\nheavily in the government’s favor.\n\n 3\n\n Finally, we consider whether the improper remark was inconsequential in\n\n\n 31\n\flight of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at\n\n1183. This factor strongly undermines Mr. Hargrove’s position and, combined\n\nwith the two other factors discussed above, firmly closes the door on his mistrial\n\nchallenge.\n\n The crux of Mr. Hargrove’s argument is that the improper stolen-gun\n\ntestimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening\n\nBr. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the\n\nkind of man that would [have been] involved in a scheme to possess and distribute\n\nmarijuana – without regard to the actual evidence presented,” id. at 32–33.\n\nHowever, the weight of the “actual evidence” against Mr. Hargrove—which\n\nundermined his defense theory that he had no knowledge of the drug-trafficking\n\nactivity afoot—would have rendered any prejudice from the stolen-gun testimony\n\ninconsequential.\n\n Although the trial presented considerable evidence that pointed towards Mr.\n\nHargrove’s guilt, we need not detail it all here. That is because, even standing\n\nalone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in\n\nthe charged drug trafficking, and a reasonable jury could have concluded that this\n\nevidence convincingly belied Mr. Hargrove’s defense theory predicated on his\n\nunawareness of that activity. More specifically, without more, these two lines of\n\nevidence established that “nothing about [the Border Patrol agent’s improper]\n\ncomment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.\n\n\n 32\n\fKravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). 8\n\n First, and perhaps most damning, is the testimony from one of the\n\nbackpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that\n\nMr. Hargrove himself met the backpackers when they arrived and personally took\n\nmarijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the\n\nbundles of marijuana on the bed of the truck and covered the bundles with a tarp;\n\nand that Mr. Hargrove put one bundle of marijuana in the backseat of the truck\n\nbecause the stack of bundles in the truck bed was “too high.” R., Vol. III, at\n\n310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left\n\nentirely without specific challenges during the course of the trial. As such, that\n\nundisputed testimony unequivocally indicated that Mr. Hargrove knew of and\n\nactively participated in the drug exchange, undercutting his defense theory and\n\n 8\n In assessing the weight of the government’s evidence and the related\neffect of the agent’s improper stolen-gun testimony, we do not factor into the\ncalculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The\ngovernment asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s\ndefense theory because she testified that Mr. Hargrove was the one who arranged\nthe marijuana deal. To be sure, Ms. Richter, during her direct examination, did\nfinger Mr. Hargrove as the brains behind the operation. However, we question\nthe reliability of this ostensibly incriminating testimony because Ms. Richter\nadmitted that she had taken full responsibility for all of the events that occurred\nand wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at\n97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not\nMr. Hargrove, had planned the drug transaction and that she planned it because\nshe was in need of money). Given that the two lines of unchallenged evidence\ndiscussed above unequivocally pointed the jury to Mr. Hargrove’s\nguilt—rendering the effect of the agent’s improper stolen-gun testimony\ninconsequential—we need not rely on Ms. Richter’s dubious testimony to support\nour analysis here.\n\n 33\n\fpointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to\n\naddress the significance of this testimony on appeal.\n\n Second, the government presented testimony from numerous agents\n\nthroughout trial that Mr. Hargrove’s defense that he thought the marijuana (all\n\n297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell\n\nnothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.\n\nDid you notice anything when [Ms. Richter] rolled down the window? A. I could\n\nimmediately smell the smell of marijuana. Q. Have you spent any time around\n\nalfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,\n\ngrowing up. I’ve been around it. And also, through the work here, I’ve seen it.\n\nQ. Does it smell anything like marijuana? A. No, it does not.”); see also id. at\n\n65–66 (testifying that alfalfa is not packaged the same way as marijuana:\n\n“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.\n\nAs far as I know, they try to keep all the moisture out of it because if it gets wet\n\nor whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.\n\nAnd in your 12 years as a law enforcement officer, have you encountered a lot of\n\nmarijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.\n\nQ. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at\n\n238 (after testifying that the marijuana was packaged in bundles, an agent further\n\ntestifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your\n\nexperience, how is alfalfa packaged? A. Usually, three strand wires, maybe four\n\n\n 34\n\fstrands, sometimes twine”). The ample testimony on this front would have made\n\npatent to the jury that Mr. Hargrove’s defense was based on a far-fetched\n\nassertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.\n\nHargrove does not raise any specific challenge to this testimony on appeal.\n\n Thus, we believe that these two lines of evidence, taken by themselves,\n\nstrongly and convincingly directed the jury to a guilty verdict. Therefore, we are\n\nquite confident that any “improper effect [the Border Patrol agent’s] intimations\n\nmay have had on the jury . . . pales in comparison to the total weight of the\n\ngovernment’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that\n\nthis factor too weighs in favor of affirming the district court’s denial of Mr.\n\nHargrove’s motion for mistrial.\n\n *\n\n In light of the above analysis, and given that all three factors of the\n\nMeridyth test weigh in favor of the government, we conclude that the district\n\ncourt did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.\n\n B\n\n We now turn to Mr. Hargrove’s second challenge: he contends that the\n\ndistrict court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve\n\nadjustment during sentencing. More specifically, Mr. Hargrove argues that the\n\ndistrict court “erred by considering only Mr. Hargrove’s possession of the\n\nfirearms and their and his proximity to the marijuana, without taking into account\n\n\n 35\n\fMr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm\n\nthe district court’s safety-valve ruling. In the following discussion, we recount\n\n(1) the district court’s ruling, (2) our standard of review, (3) the legal framework\n\ngoverning our analysis, and (4) how that framework applies in this case.\n\n 1\n\n Generally, the district court evaluated whether Mr. Hargrove possessed the\n\nfirearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to\n\ntheir “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting\n\nUnited States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)\n\n(unpublished)). Applying that rubric, the district court concluded that Mr.\n\nHargrove was not eligible for the safety-valve reduction because (1) the firearms\n\nwere located “in the cab of the pickup truck with Defendant and the marijuana,”\n\nand thus were in close proximity to the drug trafficking, and (2) the firearms “had\n\nthe potential” to facilitate the drug trafficking, even if the firearms did not do so\n\ndirectly. Id.\n\n More specifically, the district court highlighted several facts in support of\n\nits decision, including: that Mr. Hargrove, the drugs, and both guns were all in the\n\ncab of the pickup truck—with the pistol on the dashboard and the rifle behind the\n\nfront seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge\n\nof the location of the guns, since he voluntarily told the agents about them. The\n\ncourt expressly took note of Mr. Hargrove’s exculpatory statements “that he had\n\n\n 36\n\fno knowledge of the marijuana, he was in the area to fish, and he thought the\n\nbundles of marijuana were alfalfa,” but effectively declined to credit those\n\nstatements, finding instead that “[t]he presence of firearms was not coincidental\n\nor entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,\n\nat 8 (regarding the presence of the guns, the district court stated: “If I’m going to\n\nmy first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the\n\ndark of the night with a bunch of guys, backpackers, coming over the hill, I might\n\nthink I needed to be protected”). In sum, the district court determined that Mr.\n\nHargrove “ha[d] not met his burden by a preponderance of the evidence to\n\ndemonstrate eligibility for the safety valve” and thus he was “subject to the\n\nstatutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.\n\n 2\n\n We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve\n\nrelief for clear error, “giving due deference to the district court’s application of\n\nthe Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379\n\nF.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is\n\nwholly without factual support in the record, or after reviewing the evidence, we\n\nare definitively and firmly convinced that a mistake has been made.’” United\n\nStates v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.\n\nIvory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of\n\nreview “applies equally regardless of whether the district court’s factual findings\n\n\n 37\n\fare based on credibility determinations or on documentary evidence.” La\n\nResolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);\n\naccord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United\n\nStates v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in\n\nanalyzing defendant’s challenge to safety-valve determination, that although\n\ndistrict court’s evaluation of attorney reports did not evaluate the defendant’s\n\ncredibility “in the typical sense, the court was considering the truthfulness and\n\n‘credibility’ of all the information he provided in various ways to the government\n\nand to the court,” and declining to disturb the district court’s “obvious[]”\n\ndetermination that defendant was not trustworthy).\n\n 3\n\n a\n\n Congress has enacted mandatory-minimum sentencing provisions for many\n\ndifferent crimes, including the drug-trafficking offenses at issue here. See, e.g.,\n\n21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the\n\noperation of those mandatory-minimum provisions for “the least culpable\n\nparticipants” in federal drug-trafficking offenses by creating an exception to\n\nmandatory-minimum sentences, known as the safety valve, which applies when\n\ndefendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 1994 WL\n\n107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297\n\nF.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to\n\n\n 38\n\fpermit courts to sentence less culpable defendants to sentences under the\n\nguidelines, instead of imposing mandatory minimum sentences.’” (quoting\n\nAcosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,\n\n1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines\n\nprovision, ‘Congress provided relief for less culpable drug offenders from its\n\nharsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171\n\nF.3d 645, 646 (8th Cir. 1999))).\n\n At Congress’s direction, the Sentencing Commission has inserted the safety\n\nvalve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.\n\nSection 5C1.2(a) provides relief under the safety valve if the defendant can meet\n\nthe following criteria:\n\n (1) the defendant does not have more than 1 criminal history\n point, as determined under the sentencing guidelines before\n application of subsection (b) of §4A1.3 (Departures Based on\n Inadequacy of Criminal History Category);\n\n (2) the defendant did not use violence or credible threats of\n violence or possess a firearm or other dangerous weapon (or\n induce another participant to do so) in connection with the\n offense;\n\n (3) the offense did not result in death or serious bodily injury to\n any person;\n\n (4) the defendant was not an organizer, leader, manager, or\n supervisor of others in the offense, as determined under the\n sentencing guidelines and was not engaged in a continuing\n criminal enterprise, as defined in 21 U.S.C. § 848; and\n\n (5) not later than the time of the sentencing hearing, the\n\n\n 39\n\f defendant has truthfully provided to the Government all\n information and evidence the defendant has concerning the\n offense or offenses that were part of the same course of conduct\n or of a common scheme or plan, but the fact that the defendant\n has no relevant or useful other information to provide or that the\n Government is already aware of the information shall not\n preclude a determination by the court that the defendant has\n complied with this requirement.\n\n§ 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of\n\nsatisfying all five criteria by a preponderance of the evidence. United States v.\n\nVerners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five\n\ncriteria, the sentencing “court shall impose a sentence without regard to a\n\nstatutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.\n\n b\n\n Here, only the second criterion—whether Mr. Hargrove “possess[ed] a\n\nfirearm . . . in connection with the offense”—is at issue because the government\n\nhas conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note\n\nthree principles informing what it means to possess a firearm “in connection with\n\nthe offense,” before summarizing one case particularly important to our analysis.\n\n i\n\n First, we have held that a firearm is possessed “in connection with the\n\noffense” if the firearm facilitates or, as relevant here, has the “potential to\n\nfacilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),\n\n 9\n These five criteria replicate the relevant statute’s requirements. See\n18 U.S.C. § 3553(f)(1)–(5).\n\n 40\n\foverruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling\n\nby an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept\n\narose out of statutory and Guidelines provisions that are analogous to the firearms\n\ncomponent of the safety-valve provision. For example, we interpreted similar\n\nlanguage in the Guidelines enhancement for defendants who possess a firearm “in\n\nconnection with another felony offense” as applying when “the weapon facilitates\n\nor has the potential to facilitate . . . the offense.” United States v. Walters, 269\n\nF.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5\n\nF.3d 464, 466–67 (10th Cir. 1993)). 10\n\n In doing so, we relied on the Supreme Court’s interpretation of whether a\n\nfirearm was used “in relation to” an offense in Smith v. United States, 508 U.S.\n\n223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,\n\n516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the\n\nSupreme Court had interpreted the “in relation to” language as requiring that “the\n\ngun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug\n\n\n\n 10\n Walters and Gomez-Arrellano both addressed previous iterations of\nU.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant\nused or possessed any firearm or ammunition in connection with another felony\noffense; or possessed or transferred any firearm or ammunition with knowledge,\nintent, or reason to believe that it would be used or possessed in connection with\nanother felony offense, increase by 4 levels. If the resulting offense level is less\nthan level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see\nalso Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines\napplicable at the time of the offense contained similar language. U.S.S.G. §\n2K2.1(b)(6)(B) (2016).\n\n 41\n\ftrafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d\n\n538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as\n\nrecognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)). 11 Thus, in\n\nlight of the foregoing, we should consider Mr. Hargrove’s possession of the\n\nfirearms to have been “in connection with the offense” only if the firearms\n\nfacilitated or had the potential to facilitate the offense.\n\n Second, we have focused on “the defendant’s own conduct” in evaluating\n\nhis eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.\n\nThus, for example, we have ruled that proof of “a joint criminal actor’s\n\nreasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a\n\ndefendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89\n\n& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).\n\nThis focus on a defendant’s own conduct is fully in accord with the Sentencing\n\nCommission’s commentary, which ordinarily controls our interpretation of the\n\nadvisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th\n\n\n\n 11\n Though the Hallum panel did not expressly mention the historical\norigins of the “potential to facilitate” linguistic formulation, other panels of this\ncourt, albeit in unpublished decisions, have recognized its historical roots. See\nUnited States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)\n(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §\n924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda\nAscencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and\naffirming the district court’s statement that Gomez-Arrellano’s “analysis is\napplicable to the application of Sentencing Guideline Section 5C1.2,” before\nrelying on Hallum’s “potential to facilitate” language).\n\n 42\n\fCir.) (noting that the Guidelines “commentary from the Sentencing Commission is\n\n‘authoritative unless it violates the Constitution or a federal statute, or is\n\ninconsistent with, or a plainly erroneous reading of, that guideline’” (quoting\n\nStinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279\n\n(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).\n\nAs relevant here, the Commission expressly “limit[ed] the accountability of the\n\ndefendant to his own conduct and conduct that he aided or abetted, counseled,\n\ncommanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4\n\n(emphasis added).\n\n Third and relatedly, Zavalza-Rodriguez emphasized that “possession in\n\n§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking\n\nthe individual defendant, the weapon and the offense.” 379 F.3d at 1187\n\n(emphasis added).\n\n ii\n\n Zavalza-Rodriguez offers helpful instruction regarding the contours of the\n\n“own conduct” and “active possession” principles described supra. Therefore, we\n\nturn to look at Zavalza-Rodriguez in more depth.\n\n Zavalza-Rodriguez discussed these two principles in explaining why the\n\nfirearms provision of the safety valve is materially distinct from a related firearms\n\nenhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level\n\nenhancement for certain convicted drug traffickers “[i]f a dangerous weapon\n\n\n 43\n\f(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In\n\nZavalza-Rodriguez, police officers found the defendant in a home that contained\n\nnarcotics, material used to package narcotics, five firearms, and a large amount of\n\ncash. 379 F.3d at 1184. The officers found one of the firearms, a loaded\n\nsemiautomatic pistol, in the room where the defendant was staying. Id. The\n\nhome was owned by a third party who also was involved in selling narcotics, and\n\nthe defendant claimed that he had only spent one night in the home. Id.\n\n In his plea agreement, the defendant had stipulated to a sentencing\n\nenhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon\n\n(including a firearm) was possessed,” based on the presence of the pistol;\n\nhowever, the defendant separately argued that he was eligible for the safety valve\n\nbecause the gun was not possessed “in connection with” the offense within the\n\nmeaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he\n\nhad constructively possessed the gun through his knowledge of the gun’s presence\n\nin the bedroom where he stayed, he denied ever actually possessing or even\n\ntouching the gun. Id. at 1184–85. The district court accepted this argument, and\n\nheld the defendant was eligible for the safety valve, because there was a lack of\n\nevidence connecting the defendant to the gun. Id. at 1184.\n\n We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence\n\nenhancement applies to a defendant for a co-conspirator’s possessing a weapon, a\n\ndefendant is not precluded from receiving a safety valve reduction [in the context\n\n\n 44\n\fof such a conspiracy] based on the defendant’s individual conduct,” if that\n\nconduct does not run afoul of the firearms component of the safety-valve\n\nprovision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough\n\nconspiracy was not charged in the information, [the defendant’s] situation is\n\nclosely analogous to the facts of these cases”). This is because in evaluating the\n\nsafety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own\n\nconduct” and “recognize a distinction between constructive and actual\n\npossession.” Id. Thus, while a co-conspirator’s possession of a firearm might\n\nsatisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision\n\nlimits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.\n\nn.4.\n\n As for “active possession” of a firearm—which, as noted, entails a “close\n\nconnection linking the individual defendant, the weapon and the offense”—we\n\nreasoned that this requirement prevents mere constructive possession (without\n\nmore) from satisfying the safety-valve provision, though it might satisfy\n\n§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87. 12 However, we\n\nspecifically distinguished situations involving mere constructive possession, as in\n\nZavalza-Rodriguez, from those where a defendant acknowledged actual\n\n 12\n See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28\n(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that\n§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of\nthe gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a\ncloser degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).\n\n 45\n\fpossession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,\n\nespecially Hallum, we acknowledged that, when a defendant “did not argue that\n\nthe gun was not actually his nor that it was merely constructively possessed,” “a\n\ngun’s proximity and potential to be used in connection with the offense” may well\n\nbe sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89). 13\n\n 13\n We made this acknowledgment in the course of harmonizing the\nprinciples announced in Zavalza-Rodriguez with our prior precedent, most notably\nin Hallum, where we held that “a firearm’s proximity and potential to facilitate\nthe offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d\nat 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of\nconflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a\nsubsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d\n1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900\nn.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to\nexplain why the dimensions of the safety-valve provision that it outlined were\ncongruent with our earlier decision in Hallum. In other words, we recognized that\nHallum was the law of this circuit. And, rather than purporting to overrule any\nportion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the\nZavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to\nharmonize its articulation of the safety-valve’s dimensions with Hallum’s holding\nthat a firearm’s proximity and potential to facilitate the offense may be\ndeterminative. Given that this harmonization endeavor was a necessary step in\nestablishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are\nentirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s\ndiscussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s\nOpening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not\nneed to consider—and did not consider—whether its opinion had an impact on\nHallum, and its discussion of Hallum is nothing more than dicta”). Compare\nMichael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,\n953 (2005) (“A holding consists of those propositions along the chosen decisional\npath or paths of reasoning that are actually decided, are based upon the facts of\nthe case, and lead to the judgment. A proposition in a case that is not holding is\ndicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184\n(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning\nsome rule of law or legal proposition not necessarily involved nor essential to\n (continued...)\n\n 46\n\f In other words, in the parlance of Zavalza-Rodriguez, in those\n\ncircumstances a court may find that a defendant “actively possessed” the firearm.\n\n379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is\n\nundisputed, the sentencing court may find—by focusing on the defendant’s own\n\nconduct—the close connection that active possession requires between the\n\ndefendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of\n\nconstructive possession, ordinarily more would be required to establish such a\n\nclose connection. Compare id. at 1186 (noting that “we focus on the defendant’s\n\nown conduct for purposes of evaluating eligibility for the safety valve, and that\n\nwe recognize a distinction between constructive and actual possession”), with\n\nAndrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that\n\nZavalza-Rodrigruez held that “one must have actual physical possession of the\n\nfirearm to make him ineligible for a safety valve reduction” and ruling in a\n\ncircumstance where the defendant argued that “no evidence showed anyone saw\n\nhim possessing a firearm” that constructive possession was sufficient to establish\n\nthe active possession that Zavalza-Rodriguez requires, where the defendant had\n\n“knowledge and control of the firearms found in the bedroom he rented and had\n\nexclusive control over”). And, once the close connection between the defendant\n\nand the firearm is established, proof that the firearm was in close proximity to the\n\n 13\n (...continued)\ndetermination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S\nL AW D ICTIONARY (6th ed. 1990)).\n\n 47\n\foffense and had the potential to facilitate the offense would round out the features\n\nof Zavalza-Rodriguez’s “active possession” requirement by demonstrating the\n\nclose connection between the firearm and the offense. See United States v.\n\nPayton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually\n\npossessed the firearms, that “[t]he mere propinquity of the weapons and drugs\n\nsuggests a connection between the two”).\n\n In sum, our cases teach that a firearm is used “in connection with an\n\noffense” when it facilitates or has the “potential to facilitate” that offense.\n\nHallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct\n\nfor purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,\n\n379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars\n\napplication of the safety valve is “active possession whereby there is a close\n\nconnection linking the individual defendant, the weapon and the offense.” Id. at\n\n1187. Lastly, in circumstances where the defendant’s own conduct evinces actual\n\npossession of the firearm, we have recognized that active possession may be\n\nshown by evidence of “[that] firearm’s proximity and potential to facilitate the\n\noffense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.\n\n 4\n\n As noted, Mr. Hargrove contends that the district court “erred by\n\nconsidering only Mr. Hargrove’s possession of the firearms and their and his\n\nproximity to the marijuana, without taking into consideration Mr. Hargrove’s own\n\n\n 48\n\fconduct—a consideration required by this Court’s authorities.” Aplt.’s Opening\n\nBr. at 7. However, under the legal principles discussed above, Mr. Hargrove’s\n\nargument cannot prevail.\n\n a\n\n In Zavalza-Rodriguez, we expressly acknowledged that when a defendant\n\nconcedes actual possession of a firearm (as opposed to mere constructive\n\npossession), the requirement of active possession—based on defendant’s own\n\nconduct—may be rounded out and completed by further evidence that the\n\npossessed firearm was in close proximity to the offense and had the potential to\n\nfacilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s\n\nassertion, on these facts—where Mr. Hargrove freely admitted that the firearms\n\nbelonged to him and indicated that he had brought them in the vehicle to the\n\nscene of his arrest—the district court’s express focus on the firearms’ proximity\n\nand potential to facilitate the offense did not reflect an analytical disregard of Mr.\n\nHargrove’s own conduct.\n\n Indeed, Mr. Hargrove’s admissions regarding possession of the firearms\n\nplaced his own conduct front and center, and they were the jumping-off point for\n\nthe court’s further inquiries into proximity and facilitation. In other words, by\n\nfocusing on Mr. Hargrove’s admissions regarding his own conduct, the court\n\ncould discern that Mr. Hargrove actually possessed the firearms at some point\n\nduring the trip—at least likely so at the trip’s beginning, when the firearms were\n\n\n 49\n\fplaced in the vehicle—and had the firearms in close proximity to him thereafter,\n\nincluding at the time of his arrest. These admissions were sufficient to establish\n\nthe close connection required for active possession between Mr. Hargrove and the\n\nfirearms. At that point, the court was left with the task of determining whether\n\nthe requisite close connection existed between the firearms and the offense, so as\n\nto establish active possession. As Zavalza-Rodriguez acknowledged, this close\n\nconnection—under circumstances such as these—could be established where the\n\nfirearm was in close proximity to and had the potential to facilitate the offense.\n\nSee 379 F.3d at 1186 n.2.\n\n And that was certainly true here. As noted, the district court specifically\n\nfound (1) that the firearms were located “in the cab of the pickup truck with\n\nDefendant and the marijuana,” and thus were in close proximity to the drug\n\ntrafficking, and (2) that the firearms—which were loaded—“had the potential” to\n\nfacilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.\n\nI, at 24. There is ample evidence in the record to support these factual findings.\n\nAnd it is well established that firearms are “‘tools of the trade’—that is, means\n\nfor the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,\n\n1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.\n\n1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see\n\nalso United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that\n\n“evidence of Defendant’s firearm possession would have been admissible to prove\n\n\n 50\n\fhis intent to distribute marijuana”). Firearms are used by drug traffickers (among\n\nother things) to protect themselves from other criminals and to safeguard their\n\nvaluable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,\n\n1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,\n\nsemi-automatic weapon on the driver’s seat of the car in which the\n\ninstrumentalities of methamphetamine manufacturing were also found is sufficient\n\nevidence from which a jury could conclude that the purpose of the gun was to\n\nprovide defense or deterrence in furtherance of attempting to manufacture\n\nmethamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.\n\n2011) (“Because the loaded rifle in this case was located immediately adjacent to\n\nthe drugs, a reasonable jury could infer that it furthered [the defendant’s] drug\n\ntrade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s\n\nloaded guns certainly had the potential to fulfill this protective purpose and, as\n\nthe district court specifically ruled, they had the potential to facilitate the drug-\n\ntrafficking offense.\n\n To be sure, Mr. Hargrove has argued that his possession of the firearms was\n\nunrelated to the drug-trafficking activity. In this regard, before the district court,\n\nhe asserted “that he had no knowledge of the marijuana, he was in the area to fish,\n\nand he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.\n\nHowever, the court effectively discounted these statements in determining that\n\n“[t]he presence of the firearms was not coincidental or entirely unrelated to the\n\n\n 51\n\fdrug transaction.” Id. at 24. 14 And nothing in this record gives us pause in\n\naccording this factual determination the customary measure of deference. See,\n\ne.g., Hooks, 551 F.3d at 1217.\n\n Mr. Hargrove repeatedly objects that the district court did not take into\n\naccount that there was “no evidence that Mr. Hargrove had ever been involved in\n\nany sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that\n\nMr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s\n\nOpening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has\n\nno criminal history relating to the distribution of drugs or the use of firearms, let\n\nalone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more\n\nin the way of the defendant’s own conduct (such as evidence the defendant had\n\nbeen running a drug operation or evidence that the defendant planned to use the\n\nweapon against human beings) that establishes the weapons were connected to the\n\noffense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a\n\ndefendant’s prior drug-trafficking activities or actual use of the firearm are\n\nnecessary to establish active possession—much less that such factors are\n\n 14\n Panels of this court have frequently declined to credit self-serving\nstatements about the purpose of a defendant’s firearm possession. See, e.g.,\nAndrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the\nreduction, the district court discredited Mr. Andrade-Vargas’s seemingly\nself-serving claims he did not own the handguns and that they were not in the\nroom for the purpose of facilitating his drug trafficking activities—both of which\nwere unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28\n(affirming district court’s decision to “discount[]” each defendant’s credibility\n“by self-interest” (quoting record)).\n\n 52\n\fdeterminative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports\n\nsuch a proposition. In fact, we have binding Tenth Circuit authority to the\n\ncontrary—that is, where neither prior drug-trafficking activity nor actual use of\n\nthe firearm appeared to play any role in our denial of safety-valve relief. See\n\nHallum, 103 F.3d at 89.\n\n In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the\n\ndistrict court failed to properly focus on his own conduct and, thus, did not\n\ncorrectly determine his eligibility for safety-valve relief. In our view, the district\n\ncourt’s ruling is sound and consistent with our caselaw.\n\n b\n\n A closer inspection of our precedential Hallum decision only serves to\n\nunderscore the correctness of our judgment. Indeed, even standing alone,\n\nHallum—which involved materially similar facts—would arguably be\n\ndeterminative. In Hallum, officers apprehended Mr. Hallum and two accomplices\n\nwho were carrying duffle bags full of marijuana from a marijuana patch to their\n\nvehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at\n\n89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.\n\n\n\n 15\n Mr. Hargrove relatedly asserts that “the precedential authority\nrequires some affirmative action on the part of a defendant to establish that a\nweapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11\n(emphasis added). But Mr. Hargrove cites no precedential authority to support\nthis assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is\nunavailing.\n\n 53\n\fHallum later conceded was his. Mr. Hallum testified that he brought the rifle “to\n\nshoot snakes, and that while he could have used it to protect against another\n\nperson he did not have that intention and ‘would have not wanted to.’” Id.\n\n(quoting record). “The district court rejected the essence of Hallum’s testimony,\n\ndeclaring that if defendants were afraid of and protecting against snakes they\n\nwould not have left the rifle in the vehicle some 200 yards from the marijuana\n\npatch.” Id. The district court further found that “the weapon was close to the\n\nmarijuana cultivation activity, and accessible.” Id. (quoting record).\n\n We affirmed the district court’s denial of Mr. Hallum’s safety-valve\n\nrequest. We deemed it significant that Mr. Hallum admitted that he had the gun\n\n“for protection.” Id. (quoting record). “This plus the district court’s other\n\nfindings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on\n\nthese facts, we held that “a firearm’s proximity and potential to facilitate the\n\noffense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,\n\nviewed through the prism crafted by our subsequent decision in Zavalza-\n\nRodriguez, all of the elements of the requisite active possession were present in\n\nHallum: Mr. Hallum conceded his actual possession of the firearm, establishing a\n\nclose connection between him and the weapon, and the proximity of the firearm to\n\nthe marijuana and the evident drug-trafficking activity of Mr. Hallum established\n\nthe close connection between the weapon and the offense. See Zavalza-\n\nRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon\n\n\n 54\n\fcould have been used as protection against other human beings, meaning that it\n\nhad the potential to facilitate his drug trafficking. Thus, the district court’s denial\n\nof safety-valve relief should come as no surprise.\n\n Nor should a similar outcome surprise us here. Indeed, Hallum virtually\n\ncommands it. 16 We begin with proximity. The officers apprehended Mr.\n\nHargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.\n\n“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle\n\nwas behind the seat.” R., Vol. I, at 21. The district court specifically noted that\n\n“[t]he firearms were located in the cab of the pickup truck with Defendant and the\n\nmarijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove\n\nand the illegal narcotics than the firearm in Hallum was to Mr. Hallum.\n\n\n\n 16\n As we previously mentioned, Hallum was overruled in part by an en\nbanc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion\nof Hallum, we erroneously applied the principle that “participants in joint\ncriminal enterprises can be accountable for the foreseeable acts of others that\nfurther the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like\nMr. Hallum, did not qualify for safety-valve relief simply because they “knew of\nthe presence of the weapon Hallum brought to the marijuana patch; [and] that it\nmight further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d\nat 90. But, importantly, the court’s holding and analysis with respect to Mr.\nHallum, which we explicate in text here, has maintained its vitality. See also\nAndrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on\nour holding in Hallum that a firearm’s proximity and potential to facilitate the\noffense may be sufficient to prevent application of the safety valve provision”);\nUnited States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)\n(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12\n(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.\nApp’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x\nat 123 (same).\n\n 55\n\f Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of\n\nthe presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told\n\nthe agents that he had “two weapons inside the vehicle,” the rifle and the pistol.\n\nId., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded\n\nrifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,\n\nas in Hallum, these admissions supported a finding that Mr. Hargrove actually\n\npossessed the firearms at some point during the trip and had them in close\n\nproximity to him.\n\n Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for\n\nprotection against snakes but the district court effectively discredited that\n\nexculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,\n\nhowever, that Hallum is not “directly analogous” to this case because, even\n\nthough Mr. Hallum testified regarding having the firearm for protection against\n\nsnakes, the Hallum panel elided the snake explanation and determined that he\n\n“had his gun ‘for protection’ in general, which necessarily implies that it could be\n\nfor ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.\n\nThe situation here, as Mr. Hargrove reasons, is different; specifically, the\n\n\n\n 17\n Indeed, in his opening statement, Mr. Hargrove’s counsel told the\njury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”\nincluding “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives\naround with.” R., Vol. III, at 204. And, during a bench conference with the\njudge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed\nownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.\n\n 56\n\fevidence indicated that he had the firearms only as protection against snakes.\n\n This line of argument is strained and unpersuasive. It is not remarkable\n\nthat the Hallum panel spoke generally of Mr. Hallum having the firearms “for\n\nprotection,” without any reference to the snakes justification, because the panel\n\nhad credited the district court’s finding that Mr. Hallum’s snake story was\n\nincredible. 103 F.3d at 89 (noting the district court’s statement that “if\n\ndefendants were afraid of and protecting against snakes they would not have left\n\nthe rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.\n\nHargrove actually is on precisely the same footing as Mr. Hallum because the\n\ndistrict court here also effectively found incredible Mr. Hargrove’s exculpatory\n\nstatements about having the guns for protection against snakes, noting specifically\n\nthat “[t]he presence of firearms was not coincidental or entirely unrelated to the\n\ndrug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found\n\nto be credible” by the district court, Mr. Hargrove is effectively asking “us for a\n\nde novo determination of credibility. [However, that] is not our role.” Payton,\n\n405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at\n\n1217.\n\n In sum, Hallum cogently underscores the correctness of our decision to\n\nuphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,\n\ngiven the similarity of Hallum’s facts to the instant case, it is arguably\n\ndeterminative.\n\n\n 57\n\f *\n\n In sum, we conclude that the district court did not err in determining that\n\nMr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.\n\n§ 5C1.2.\n\n III\n\n Based on the foregoing, we AFFIRM the district court’s judgment\n\nregarding Mr. Hargrove’s conviction and sentence.\n\n\n\n\n 58\n[END_CASE]", "role": "user" } ]
4,578,612	Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform ; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae.	Doe v. Woodard	2019-01-03	18-1066	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Lucero, Matheson", "parties": "", "opinions": [{"author": "MATHESON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 3, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nJANE DOE; I.B.,\n\n Plaintiffs - Appellants,\n\nv. No. 18-1066\n\nAPRIL WOODARD, in her individual\ncapacity; CHRISTINA NEWBILL, in her\nindividual capacity; SHIRLEY RHODUS,\nin her individual capacity; RICHARD\nBENGTSSON, in his individual capacity;\nEL PASO COUNTY BOARD OF\nCOUNTY COMMISSIONERS,\n\n Defendants - Appellees,\n\nand\n\nREGGIE BICHA, in his official capacity as\nExecutive Director of the Colorado\nDepartment of Human Services; JULIE\nKROW, in her official capacity as\nExecutive Director of the El Paso County\nDepartment of Human Services,\n\n Defendants.\n_______________________\n\nPARENTAL RIGHTS FOUNDATION;\nNATIONAL CENTER FOR HOUSING\nAND CHILD WELFARE; NATIONAL\nCOALITION FOR CHILD PROTECTION\nREFORM; PARENT GUIDANCE\nCENTER; MARK FREEMAN; PACIFIC\nJUSTICE INSTITUTE,\n\n Amici Curiae.\n\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01165-KLM)\n _________________________________\n\nTheresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,\nMonument, Colorado, for Plaintiffs - Appellants.\n\nKenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant\nCounty Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -\nAppellees.\n\nKevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae\nbrief for Pacific Justice, in support of Appellants.\n\nDarren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and\nCarolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and\nMark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights\nFoundation, National Center for Housing and Child Welfare, National Coalition for Child\nProtection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of\nAppellants.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that\n\nApril Woodard, a caseworker from the El Paso County Department of Human Services\n\n(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program\n\nin Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed\n\n\n\n 2\n\nI.B., performed a visual examination for signs of abuse, then photographed I.B.’s\n\nprivate areas and partially unclothed body.\n\n In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials\n\nviolated the Fourth Amendment’s prohibition on unreasonable searches and the\n\nFourteenth Amendment’s protection against undue interference with parental rights and\n\nwith familial association. The Defendants moved to dismiss.1 The district court\n\ngranted the motion, holding that qualified immunity precludes the Fourth Amendment\n\nunlawful search claim and that the complaint failed to state a Fourteenth Amendment\n\nclaim.\n\n The Does appeal these rulings and the district court’s denial of leave to amend\n\ntheir complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I. BACKGROUND\n\n A. Factual Background\n\n In reviewing the grant of a motion to dismiss, we accept the allegations in the\n\ncomplaint as true and draw all reasonable inferences in favor of the non-moving party—\n\nhere, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).\n\n\n\n\n 1\n The Does sued six defendants, who are identified in the procedural history\nsection below.\n\n 3\n\n In December 2014, I.B. was attending preschool at the Head Start Program in\n\nColorado Springs.2 An anonymous source reported to DHS possible signs of abuse on\n\nI.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red\n\nmark on her lower back, two small cuts on her stomach, and bruised knees. DHS\n\ncaseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s\n\noffice.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.\n\nWoodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,\n\nstomach, and back using a county-issued cell phone.4\n\n The Does alleged that the undressing and photographing were “executed under an\n\nunwritten, but well-established county-wide policy or custom encouraging the practice,\n\noften without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.\n\n\n\n\n 2\n Pacific Justice’s amicus brief explains that Head Start is “a federally funded\npreschool in which children engage in a course of age-appropriate studies conducted by\na teacher. Although not a K-12 public school, Head Start primarily functions as an\neducational institution for very young children.” Pacific Justice Amicus Br. at 2\n(footnote omitted). The “program meets on public school campuses.” Id.\n\n 3\n This was the not DHS’s first investigation regarding I.B. The Does alleged\n that, between 2012 and 2014, DHS investigated their home “around half a dozen\n times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One\n investigation was based on a report that I.B. had marks resembling a hand print on\n her bottom and lower-back bruising. DHS visually examined I.B. with her clothing\n removed. DHS closed the investigation, finding in January 2014 the report was\n unfounded. Id. ¶¶ 24-32.\n 4\n According to Defendants, “the school’s health paraprofessional” assisted Ms.\nWoodard. Aplee. Br. at 7.\n 4\n\nApp., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive\n\nDirector of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s\n\ndepartment, Shirley Rhodus, implemented it.\n\n The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect\n\nher of abuse, and she cooperated with the investigation. Ms. Woodard did not inform\n\nMs. Doe that she had inspected and photographed I.B. in a state of partial undress. The\n\ncase was closed as unfounded.\n\n After DHS closed the case, I.B. told her mother about the incident, saying she\n\nhoped she would not see Ms. Woodard again because “I don’t like it when she takes all\n\nmy clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard\n\nhad taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe\n\napproached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first\n\ndenied them. Two months later, she reversed course and admitted that she did the\n\ninspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse\n\naccusation and investigation takes priority over the mother’s parental rights.\n\n B. Procedural History\n\n The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth\n\nAmendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment\n\n\n\n\n 5\n\nrights.5 The Fourth Amendment claims were based on both the visual inspection and\n\nthe photographs; the Fourteenth Amendment claims only on the inspection. In addition\n\nto Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.\n\nNewbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;\n\nReggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County\n\nCommissioners (“BOCC”). The Does sought damages and prospective relief against a\n\n“statewide and local policy and custom” encouraging “strip searching children\n\nwhenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to\n\ndismiss based on qualified immunity and failure to state a claim.\n\n1. Dismissal of Fourth Amendment Claims\n\n A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled\n\nto qualified immunity on the Fourth Amendment claim7 and dismissed the claim\n\nwithout prejudice. When the Does sought to file an amended complaint, the court\n\nrejected the request on futility grounds and dismissed the claim with prejudice.\n\n\n\n\n 5\n Because I.B. is a minor, Ms. Doe brought her claims for her. Although we\nrefer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the\nFourth Amendment claims are solely on behalf of I.B.\n 6\n The parties agreed to have all proceedings in the case decided by a magistrate\njudge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the\n“district court.”\n 7\n Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,\n2016).\n 6\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed the Fourth Amendment claim against Ms. Woodard\n\nand Ms. Newbill because the law was not so “clearly established” as to “give\n\nDefendants fair warning that the taking photographs of portions of I.B.’s unclothed\n\nbody required a warrant.” Dist. Court Op. at 16.\n\n To the extent the Fourth Amendment claim was based on the Defendants’ failure\n\nto show that the “special needs” doctrine justified the search, the district court\n\nrecognized that a special needs search comports with the Fourth Amendment only if it\n\nis “justified at its inception” and “reasonably related in scope to the circumstances\n\nwhich justified interference in the first place.” Id. at 19 (quotations omitted). But, the\n\ndistrict court concluded, the Does’ complaint “lack[ed] allegations” the search was\n\nunjustified at its inception or was improper in scope. Id.8\n\n The district court dismissed the Does’ Fourth Amendment claim without\n\nprejudice.\n\n b. Ms. Rhodus and Mr. Bengtsson\n\n The district court dismissed the Fourth Amendment § 1983 supervisory liability\n\nclaim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded\n\ntheir supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The\n\n\n 8\n The district court also said Defendants’ conduct was objectively reasonable\nbecause they complied with a Colorado statute authorizing photography in cases of\nsuspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).\n 7\n\ncourt also dismissed the claim for prospective relief against Ms. Rhodus and Mr.\n\nBengtsson, which demanded safeguards on storing photographs obtained in future\n\nsearches, because it was based only on a “mere potential violation.” Id. at 23-24.\n\n2. Dismissal of Fourteenth Amendment Claims\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed, for failure to state a claim, the Does’ substantive\n\ndue process claims under the Fourteenth Amendment for violation of the parental right\n\nto direct medical care and of the right to familial association.\n\n i. Right to direct medical care\n\n The district court dismissed the parental rights claim, stating that (1) the visual\n\nexam of a child was not “essentially a medical procedure”; (2) the complaint did not\n\nallege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;\n\nand (3) the complaint did not allege that the exam caused any “interference with\n\n[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).\n\n ii. Right to familial association\n\n The district court dismissed the familial association claims, concluding the Does\n\ndid not sufficiently plead that (1) the Defendants intended to separate I.B. from her\n\nmother or that (2) the Defendants knew their conduct would adversely affect the\n\nfamilial relationship. Id.\n\n b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha\n\n\n 8\n\n The district court also dismissed the Fourteenth Amendment supervisory claims\n\nagainst Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.\n\nBengtsson and Mr. Bicha because the complaint failed to allege an underlying violation\n\nof the Fourteenth Amendment.9\n\n3. Denial of Leave to Amend and Dismissal with Prejudice\n\n When the Does attempted to amend their complaint, the district court denied the\n\nrequest, stating that the Does “have not addressed the Court’s determination that\n\nDefendants were entitled to qualified immunity because the law was not clearly\n\nestablished with respect to whether Defendants needed a warrant in order to search the\n\nminor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as\n\nasserted, the Court cannot find that Defendants knowingly violated the law, even\n\nassuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73\n\n(citations and quotations omitted).10\n\n\n\n\n 9\n The Does do not appeal the dismissal of the Fourteenth Amendment official-\ncapacity claims.\n 10\n The Does sued the BOCC for its role in the same alleged violations under the\nFourth and Fourteenth Amendments. The district court dismissed these claims because\nthe BOCC is a county rather than state entity and lacked final policymaking control.\nThis ruling is not on appeal.\n\n 9\n\n The district court also dismissed the Fourth and Fourteenth amendment claims\n\nwith prejudice.11\n\n\n\n\n 11\n The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their\nofficial capacities survived the motion to dismiss. Limited discovery was granted\nregarding standing on the claim, but it was later dismissed by stipulation of the parties.\nNo prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity\nis part of this appeal.\n 10\n\n II. DISCUSSION\n\n Our discussion reviews (A) the district court’s qualified immunity dismissal of\n\nthe Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth\n\nAmendment claims for failure to state a claim. We affirm in both instances.\n\n A. Fourth Amendment Claims\n\n This section provides background on the standard of review; qualified immunity\n\nlaw; Fourth Amendment search requirements, with emphasis on the special needs\n\ndoctrine; and analysis of whether the Does have shown there was clearly established\n\nlaw at the time of the search to support their claim. We conclude they have not shown\n\nclearly established law that the special needs doctrine could not support the search in\n\nthis case. They therefore have not shown that a warrant clearly was required.12\n\n1. Standard of Review\n\n We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to\n\nqualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).\n\n\n 12\n This approach is similar to the one we followed in McInerney v. King, 791 F.3d\n1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth\nAmendment violation based on the defendant police officer’s warrantless search of her\nhome. We reversed the district court’s grant of qualified immunity. As in our case, the\nsearch was conducted without a warrant, and the defendant relied on an exception to the\nwarrant requirement to contest the Fourth Amendment claim. After reviewing the existing\ncase law, we concluded it was clearly established that the exigent circumstances exception\ndid not apply and therefore the defendant was not entitled to qualified immunity. Id. at\n1228. Here, after reviewing existing case law, the opinion concludes that the law was not\nclearly established that the special needs exception did not apply, and therefore the\ndefendants were entitled to qualified immunity.\n 11\n\n“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the\n\ncomplaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.\n\nPelletier, 516 U.S. 299, 309 (1996).\n\n2. Legal Background\n\n a. Qualified immunity\n\n Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,\n\nor causes to be subjected, any citizen of the United States . . . to the deprivation of any\n\nrights, privileges, or immunities secured by the Constitution and laws, shall be liable to\n\nthe party injured . . . .” “Individual defendants named in a § 1983 action may raise a\n\ndefense of qualified immunity, which shields public officials from damages actions\n\nunless their conduct was unreasonable in light of clearly established law.” Estate of\n\nBooker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations\n\nomitted).\n\n “[Q]ualified immunity protects ‘all but the plainly incompetent or those who\n\nknowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting\n\nMalley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified\n\nimmunity imposes the burden on the plaintiff to show “both that [1] a constitutional\n\nviolation occurred and [2] that the constitutional right was clearly established at the\n\ntime of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)\n\n(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]\n\n\n 12\n\nsound discretion in deciding which of the two prongs of the qualified immunity\n\nanalysis should be addressed first in light of the circumstances in the particular case at\n\nhand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\n\n A constitutional right is clearly established if it is “sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that right.”\n\nMullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\n\nThe plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,\n\nor the clearly established weight of authority from other courts must have found the\n\nlaw to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th\n\nCir. 2011) (quotations omitted). Generally, “existing precedent must have placed the\n\nstatutory or constitutional question beyond debate” for a right to be clearly established.\n\nThe Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).\n\n There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d\n\n927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established\n\nlaw should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,\n\n137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138\n\nS. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of\n\nspecificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of\n\nthe law . . . gave [the defendants] fair warning that their alleged treatment of [the\n\nplaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\n\n\n 13\n\n “[G]eneral statements of the law are not inherently incapable of giving fair and\n\nclear warning to officers, but in the light of pre-existing law the unlawfulness must be\n\napparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be\n\nthe rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently\n\nclear even though existing precedent does not address similar circumstances.” Wesby,\n\n138 S. Ct. at 590 (quotations omitted).\n\n For supervisory liability, “[p]ersonal participation is an essential allegation in a\n\n1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A\n\nsupervisor cannot be held vicariously liable for the constitutional violations of\n\nsubordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)\n\n(“Supervisors are only liable under § 1983 for their own culpable involvement in the\n\nviolation of a person’s constitutional rights.”) “[D]irect participation,” however, “is\n\nnot necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations\n\nomitted). “The requisite causal connection is satisfied if the defendant set in motion a\n\nseries of events that the defendant knew or reasonably should have known would cause\n\nothers to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).\n\n“[T]he establishment or utilization of an unconstitutional policy or custom can serve as\n\nthe supervisor’s affirmative link to the constitutional violation . . . . Where an official\n\nwith policymaking authority creates, actively endorses, or implements a policy which\n\nis constitutionally infirm, that official may face personal liability for the violations\n\n\n 14\n\nwhich result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,\n\n1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable\n\nunder § 1983 where there is no underlying violation of a constitutional right by a\n\nsupervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).\n\n b. Fourth Amendment search requirements\n\n i. The warrant requirement\n\n The Fourth Amendment protects people from unreasonable government searches\n\nof their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects\n\nthe right of the people to be ‘secure in their persons’ from government intrusion\n\nwhether the threat to privacy arises from a policeman or a Head Start administrator.”\n\nDubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social\n\nworker’ exception to the Fourth Amendment.” Id.\n\n As a general rule, a search requires a warrant based on probable cause. Illinois\n\nv. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se\n\nunreasonable under the Fourth Amendment—subject only to a few ‘specifically\n\nestablished and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328\n\nF.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357\n\n\n\n\n 15\n\n(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a\n\n“special need.” In this case, there was no warrant, consent, or exigent circumstance.\n\nThe qualified immunity question concerns, therefore, (1) whether a warrant was\n\nrequired for the search because the special needs exception did not apply, and (2) if it\n\ndid, whether the search nonetheless violated the special needs doctrine.\n\n ii. Special needs doctrine\n\n “‘Special needs’ is the label attached to certain cases where ‘special needs,\n\nbeyond the normal need for law enforcement, make the warrant and probable-cause\n\nrequirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.\n\nSch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).\n\n There is no definitive list of “special needs.” The Supreme Court has found a\n\nspecial need in a principal’s in-school search of a student’s purse for drugs; a public\n\n\n\n\n 13\n “It is . . . well settled that one of the specifically established exceptions to the\nrequirements of both a warrant and probable cause is a search that is conducted\npursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).\n 14\n “The exigent circumstances exception allows a warrantless search when an\nemergency leaves police insufficient time to seek a warrant. It permits, for instance,\nthe warrantless entry of private property when there is a need to provide urgent aid to\nthose inside, when police are in hot pursuit of a fleeing suspect, and when police fear\nthe imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,\n2173 (2016) (citation omitted). “Warrants are generally required to search a person’s\nhome or his person unless the exigencies of the situation make the needs of law\nenforcement so compelling that the warrantless search is objectively reasonable under\nthe Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations\nomitted) (brackets omitted).\n 16\n\nemployer’s search of an employee’s desk; a probation officer’s search of a\n\nprobationer’s home; a Federal Railroad Administration policy requiring employees to\n\ntake blood and urine tests following a major rail accident; drug testing of United States\n\nCustoms employees applying for drug interdiction jobs; schools’ random drug testing\n\nof athletes; and drug testing of public school students partaking in extracurricular\n\nactivities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized\n\nthe special needs doctrine as follows:\n\n (1) an exercise of governmental authority distinct from that\n of mere law enforcement—such as the authority as\n employer, the in loco parentis authority of school officials,\n or the post-incarceration authority of probation officers;\n (2) lack of individualized suspicion of wrongdoing, and\n concomitant lack of individualized stigma based on such\n suspicion; and (3) an interest in preventing future harm,\n generally involving the health or safety of the person being\n searched or of other persons directly touched by that\n person’s conduct, rather than of deterrence or punishment\n for past wrongdoing.\n\nId. at 1213-14.\n\n State actors can invoke the special needs doctrine only when the purpose of the\n\nsearch is sufficiently “divorced from the State’s general interest in law enforcement.”\n\nFerguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state\n\nobstetrics ward not justified under special needs because they were coordinated with\n\nthe police).\n\n\n\n\n 17\n\n When it applies, the special needs doctrine employs a more relaxed test than the\n\none traditionally used under the Fourth Amendment to assess the reasonableness of a\n\nsearch. To evaluate special needs reasonableness, we have (1) required that (a) the\n\nsearch be “justified at its inception” and (b) reasonable in its “scope” given the\n\n“circumstances”;15 or we have (2) balanced government and private interests.16\n\n 1) Child abuse context: Supreme Court and Tenth Circuit\n\n The Supreme Court has not addressed the special needs doctrine in the context\n\nof social workers’ inspection of children upon suspicion of child abuse. It has rejected\n\nthe special needs doctrine to justify a search, but in a different child abuse context. In\n\nFerguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s\n\ntesting of pregnant mothers in its maternity ward for cocaine and reporting results to\n\nauthorities under a theory that a positive result constituted “child abuse” did not qualify\n\nfor the special needs exception to the Fourth Amendment warrant requirement because\n\nof the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.\n\n\n\n\n 15\n See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884\n(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in\nturn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).\n 16\n See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and\nprobable cause requirement with a balancing test that looks to the nature of the privacy\ninterest, the character of the intrusion, and the nature and immediacy of the\ngovernment’s interest.” 336 F.3d at 1213.\n\n 18\n\n The Tenth Circuit has not previously addressed whether the special needs\n\ndoctrine applies to a social worker’s search of a student at school to detect evidence of\n\nsuspected abuse. We applied it in a child abuse context when a student at a public\n\nschool needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).\n\nThat case concerned a seizure, however, not a search, because it involved the\n\nquestioning of a minor suspected of abusing another child, not an inspection of the\n\nallegedly abused child. See id. In another case, we held that special needs did not\n\npermit a social worker, who suspected abuse, to enter a home and remove a child.\n\nRoska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that\n\neven if a police officer is performing the functions of a social worker in examining a\n\nyoung child’s private areas upon suspicion of abuse, the police officer nevertheless\n\nmust abide by the Fourth Amendment’s warrant requirement.17\n\n In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked\n\nthe special needs doctrine when it subjected an entire class of children to intrusive\n\nphysical examinations (including genital examinations and blood tests) without\n\nparental notice or consent, stating this was “done in order to comply with federal\n\nregulations [and] is an effective means of identifying physical and developmental\n\n\n\n\n 17\n We decided Franz before the Supreme Court held in Ferguson that social\nworkers are not categorically exempt from the warrant requirement when performing a\nsearch. Ferguson, 532 U.S. at 76 & n.9.\n\n 19\n\nimpediments in children prior to them starting school, a goal of Head Start.” Id. at\n\n1214. We did not decide whether the doctrine applied, holding instead that even if it\n\ndid, the searches were unconstitutional under the balancing test. The extreme privacy\n\ndeprivations involved in the invasive testing outweighed the ostensible special need of\n\ndoing a health assessment. Id. at 1214-15.\n\n We therefore have not established whether the special needs doctrine permits a\n\nsocial worker to search a child, such as by removing clothing and/or taking\n\nphotographs, to investigate a report of suspected abuse.\n\n 2) Child abuse context: other circuits and special needs\n\n Other circuits have split on whether a social worker’s examination of a child\n\nupon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.\n\n The Seventh Circuit held that a social worker’s visual inspection of a child upon\n\nsuspicion of child abuse falls under the special needs doctrine and thus can proceed\n\nwithout a warrant, as long as the search passes the special needs balancing test and is\n\nfundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In\n\nWildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held\n\nsocial workers’ warrantless examinations of potentially abused children in their foster\n\n\n\n\n 18\n The Seventh Circuit later limited this holding to searches on public as opposed\nto private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).\n 20\n\nhomes should be evaluated under a special needs balancing and general\n\n“reasonableness” analysis, as opposed to probable cause.\n\n Four other circuits, however, have held that social worker examinations of\n\nchildren based on abuse suspicions are not candidates for special needs analysis. The\n\nThird Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d\n\n1087 (3d Cir. 1989), held that social workers’ search of a child in his home required\n\neither a search warrant, consent, or exigent circumstances. The Ninth Circuit, in\n\nCalabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing\n\na search on a child to investigate possible abuse must have a warrant, consent, or\n\nexigent circumstances, and may not rely on the special needs doctrine (especially in\n\nthis case where a police officer was also present with the social worker). The Second\n\nCircuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial\n\nauthorization was required for social workers to examine a student upon suspicion of\n\nabuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory\n\nServs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body\n\ncavity search for suspected abuse needed a court order based on probable cause or\n\nexigent circumstances, and that they could not rely on the special needs doctrine. Roe\n\nemphasized, under Ferguson, the overlap of social workers with law enforcement\n\ninvestigating abuse militates against the applicability of the special needs doctrine. Id.\n\nat 406.\n\n\n 21\n\n3. Analysis\n\n We limit our qualified immunity analysis, as the district court did, to whether\n\nthe Does can satisfy the second prong of qualified immunity—that is, whether they can\n\nshow that any Fourth Amendment violation was based on clearly established law.\n\n Defendants do not contest that Ms. Woodard conducted a search for Fourth\n\nAmendment purposes.19 For the search to have been valid under the Fourth Amendment,\n\nMs. Woodard needed a warrant or one of the exceptions to the warrant requirement to\n\napply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.\n\nWoodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the\n\ncircumstances were not exigent, the search would have been valid without a warrant only if\n\nthe special needs doctrine applied.\n\n The Does have not cited a Supreme Court or Tenth Circuit decision specifically\n\nholding that a social worker must obtain a warrant to search a child at school for evidence\n\nof reported abuse. Instead, they argue that (a) only a warrant could have justified the\n\nsearch of I.B. because the special needs doctrine did not apply, or (b) even if the special\n\nneeds doctrine did apply, Defendants’ conduct violated the Fourth Amendment\n\n\n\n\n 19\n Although the Defendants do not expressly and directly concede that I.B. was\nsubject to a search, they devote their brief to evaluating a “search” of this type. See,\ne.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection\nand photographing of a child, under the circumstances alleged, as an administrative\nsearch subject to the reasonableness balancing test . . . .”).\n\n 22\n\nreasonableness standards for a special needs search. The Does have not met their burden of\n\nshowing clearly established law on either ground.\n\n a. No showing of clearly established Fourth Amendment law on whether social\n worker searches examining for abuse qualified for the special needs\n exception\n\n In this section, we examine the Does’ attempts to show that Ms. Woodard’s\n\nsearch violated clearly established Fourth Amendment law in December 2014 because\n\nshe lacked a warrant and the special needs exception did not apply. They have failed to\n\ndo so. Based on our previous review of the case law and discussion below, we\n\nconclude that neither the Supreme Court nor this court had previously decided that the\n\nspecial needs exception does not apply to warrantless social worker searches for\n\nsuspected child abuse. Nor was the weight of authority from other circuits clearly\n\nestablished. We therefore hold that, when the search occurred in this case, there was\n\nno clearly established law that a warrant was required.\n\n i. Supreme Court and Tenth Circuit law\n\n The Does argue that Supreme Court and Tenth Circuit precedent on special\n\nneeds existing when Ms. Woodard searched I.B. may be read to find a Fourth\n\nAmendment violation under clearly-established law. They cite (1) Franz, which held\n\nthat a police officer could not search a young child without a warrant or consent upon\n\nsuspicion of abuse; (2) Dubbs, which held that examinations of children at school\n\nneeded a warrant, consent, or exigent circumstances, and that there is no general social\n\n\n 23\n\nworker exception to the Fourth Amendment; (3) Roska, for the proposition that the\n\nspecial needs doctrine can be used only when obtaining a warrant is impracticable; and\n\n(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement\n\nrenders the special need exception inapplicable,” Aplt. Br. at 35.20\n\n The Does contend that these cases put the DHS caseworkers and their\n\nsupervisors on notice that Ms. Woodard could not undress and photograph I.B. without\n\na warrant, consent, or exigent circumstances. We disagree that these cases would have\n\nput a reasonable social worker on notice that her conduct violated the Fourth\n\nAmendment.\n\n First, Franz involved a police officer who searched a young child upon\n\nsuspicion of abuse, and held that the officer needed a warrant, consent, or exigent\n\ncircumstances to do so. In other words, the special needs doctrine did not apply. But a\n\npolice search is not a social worker search, and Franz does not address the latter.\n\n Second, Dubbs does not clearly establish Fourth Amendment law for a social\n\nworker’s search for child abuse in this case. In Dubbs, the school indiscriminately\n\ntested the entire class and performed much more invasive examinations. The defendant\n\nschool officials argued that the special need was for generalized health assessment to\n\n\n\n\n 20\n In their reply brief, the Does drop their reference to Ferguson in their clearly-\nestablished argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.\nat 9.\n\n 24\n\ncomply with federal regulations, not to search for child abuse. Accordingly, Dubbs did\n\nnot address the issue presented here—whether Ms. Woodard’s search of I.B. for child\n\nabuse satisfied the Fourth Amendment as a special needs search.\n\n Third, Roska also does not provide clearly established law. In Roska, we said\n\nthat a special need must “make the warrant and probable-cause requirement\n\nimpracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent\n\ncircumstances, no special need “renders the warrant requirement impracticable when\n\nsocial workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon\n\nsocial workers searching and photographing a child at school for suspected child abuse.\n\n Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of\n\ndrug tests taken in a maternity ward to police could not qualify for the special needs\n\nexception because their conduct was too intertwined with law enforcement. Ferguson\n\nsays nothing about social workers searching and photographing a child at school\n\nbecause of suspected child abuse or whether such conduct is unacceptably entangled\n\nwith law enforcement to qualify for special needs analysis. Nor have we, in contrast to\n\nthe Fifth Circuit in Roe, ever held that a social worker search for suspected abuse\n\ncontext was too closely tied to law enforcement to qualify for the special needs\n\ndoctrine.\n\n Taken together, these four cases do not constitute clearly established law that the\n\nDoes suffered a Fourth Amendment violation because no warrant was obtained. They\n\n\n 25\n\nare not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at\n\n552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly\n\nestablished law should not be defined at a high level of generality . . . . [C]learly\n\nestablished law must be particularized to the facts of the case.”) (quotations and\n\ncitations omitted).\n\n ii. Other circuits\n\n Four circuits have rejected the special needs doctrine as an exception to the\n\n warrant requirement and two have approved it for searches like the one here. This\n\n does not amount to a “clearly established weight of authority from other courts,”\n\n Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or\n\n constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\n\n (2011). Also, the circuits rejecting the special needs doctrine often did so based on\n\n facts distinguishable from this case—for instance, the search occurred at the child’s\n\n home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking\n\n the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.\n\n b. No showing of clearly established law on minimal Fourth Amendment\n reasonableness standards\n\n Despite the lack of law clearly showing the special needs doctrine did not apply\n\n to the search here, the Does could still attempt to show that Ms. Woodard’s search\n\n failed to meet clearly established minimal Fourth Amendment reasonableness\n\n standards applicable to special needs searches.\n 26\n\n When the Supreme Court first described the “special needs” exception in New\n\n Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy\n\n minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):\n\n the legality of a search of a student should depend simply\n on the reasonableness, under all the circumstances, of the\n search. Determining the reasonableness of any search\n involves a twofold inquiry: first, one must consider\n “whether the . . . action was justified at its inception”;\n second, one must determine whether the search as actually\n conducted “was reasonably related in scope to the\n circumstances which justified the interference in the first\n place.”\n\nT.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392\n\nU.S. at 20). As noted above, we also have measured reasonableness by balancing\n\ngovernment and private interests. See Dubbs, 336 F.3d at 1214.21\n\n i. Appellants’ failure to show clearly established law\n\n\n\n 21\n Although the Terry reasonableness determination and the interest-balancing\napproach are not identical, courts have recognized overlap in these tests. See, e.g.,\nJones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness\nunder Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the\nproposition that courts may “evaluate the search or seizure under traditional standards\nof reasonableness by assessing, on the one hand, the degree to which it intrudes upon\nan individual’s privacy and, on the other, the degree to which it is needed for the\npromotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d\n902-03 (adopting approach that blends Terry analysis with interest-balancing test:\n“The test of reasonableness under the Fourth Amendment is not capable of precise\ndefinition or mechanical application. In each case it requires a balancing of the need\nfor the particular search against the invasion of personal rights that the search entails.\nCourts must consider the scope of the particular intrusion, the manner in which it is\nconducted, the justification for initiating it, and the place in which it is conducted.”)\n(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).\n 27\n\n The Appellants offer almost no analysis to support their contention that the\n\nsearch violated clearly established minimal Fourth Amendment standards. Their\n\nopening brief devotes less than two pages to this issue. Although it cites several cases,\n\nincluding Dubbs, it does not provide any case analysis or otherwise begin to show how\n\nAppellants can meet the clearly established law burden to overcome qualified\n\nimmunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments\n\nand case cites about warrant requirements and the special needs exception with\n\narguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical\n\ncase summaries, however, the Reply lacks case analysis or explanation as to why these\n\ncases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment\n\nprotections. The Reply complains that the Appellees have failed to provide case law to\n\nsupport the search and then states it is “not impermissibly shift[ing] the burden” to the\n\nAppellees. Id. at 10. But that is exactly what their argument would do. The\n\nAppellants’ failure to meet their burden should resolve the issue. The dissent attempts\n\nto do their work for them, but it does not show the law was clearly established, either.\n\n\n\n\n 28\n\n ii. The dissent\n\n We have shown that in December 2014 the law did not clearly establish that a\n\nwarrant was required to justify Ms. Woodard’s search. This is so because the law did not\n\nclearly establish that Ms. Woodard could not rely on the special needs exception to justify\n\nthe search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by\n\nexamining whether it was clearly established that an exception did not apply to the Fourth\n\nAmendment’s warrant requirement).\n\n Despite appearing to agree with the foregoing, the dissent contends the search\n\nviolated clearly established Fourth Amendment requirements even assuming the special\n\nneeds doctrine applied. We disagree for two related reasons—(1) the cases it relies on are\n\nfactually distinguishable from this case, and (2) Supreme Court precedent calls for factually\n\nsimilar cases to constitute clearly established law. We respond to the dissent to address\n\nwhether it was clearly established that the special needs doctrine’s reasonableness\n\nstandards were not met in this case.\n\n First, the Does must “identify a case where an officer acting under similar\n\ncircumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at\n\n552. The dissent relies on two cases that are materially different from this case. In Dubbs,\n\nthe purpose of the search was to identify physical and developmental impediments in all\n\n\n\n\n 29\n\nchildren to comply with federal Head Start program requirements.22 The state actors did\n\nnot attempt to justify the search in Dubbs based on the special need of detecting child\n\nabuse—just the opposite: “The nurses who administered the examinations, Strayhorn and\n\nBaker, testified that the exams were in conformity with standards for well-child\n\nexaminations and were not performed for the purpose of detecting child abuse.” 336 F.3d\n\nat 1200. In Safford, the purpose of the search was to prevent a student from distributing\n\nmedications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was\n\nto check for reported child abuse. Although, as the dissent notes, all three searches served\n\n“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s\n\nsearch was different in kind from the others—to protect a child from reported abuse.\n\n In Dubbs, the nature of the search was an intrusive examination of the genitals of all\n\nchildren in the class, “separated only by partitions, so that it was possible for other children\n\nto see or hear portions of the examinations performed on their classmates.” Dubbs, 336\n\nF.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses\n\ninspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital\n\narea when a visual inspection was not adequate. Similarly, the nurses would palpate the\n\n\n 22\n The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]\nAmendment is . . . on the security of the person, not the identity of the searcher or the\npurpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this\nquotation from Dubbs addressed whether the physical examinations in that case were\n“searches” under the Fourth Amendment in the first place, not whether a given search\nwas reasonable under the Fourth Amendment.\n\n 30\n\nboys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the\n\nstate justification weaker in Dubbs than in this case, the search was far more invasive, far\n\nless private, and applied indiscriminately to the entire class. Dubbs held the search\n\nunconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to\n\nbalance in this case are plainly different.\n\n In Safford, school officers searched a student suspected of distributing medications\n\nto other students. 557 U.S. at 368. The search, which involved removal of the student’s\n\nclothing and pulling aside her undergarments to expose private areas, id. at 369, was\n\ncomparable to this case, but the circumstances underlying the search were different. The\n\nstudent searched in Safford was suspected of harming others through drug distribution. Id.\n\nat 377. The child in this case was suspected of suffering abuse from a third party. The\n\nSafford Court asked whether the search was “‘reasonably related in scope to the\n\ncircumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at\n\n341), and held that it was not, given that the school lacked facts that the alleged\n\nmedications were dangerous or that the student hid them “in her underwear.” Id. at 376.\n\nNeither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was\n\nnot reasonably related in scope to the circumstances—suspected child abuse. The dissent\n\ncorrectly states that the searches in all three cases involved the children’s “intimate areas,”\n\nbut the purpose and circumstances of the search for suspected child abuse in this case\n\n\n\n\n 31\n\ndiffered too much for Dubbs and Safford to have guided Ms. Woodard with clearly\n\nestablished law.\n\n Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.\n\nWoodard’s position would, based on these cases, know that her search of I.B. violated the\n\nrequirements for the special needs exception or the basic protections of the Fourth\n\nAmendment. “The precedent must be clear enough that every reasonable official would\n\ninterpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at\n\n590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is\n\nsufficiently clear that every reasonable official would have understood that what he is\n\ndoing violates that right.”) (quotations omitted). As we have shown, the facts in this case\n\ndiffer markedly from the facts in the cases the dissent attempts to use for clearly established\n\nlaw.\n\n Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s\n\nrepeated instruction that “clearly established law should not be defined at a high level of\n\ngenerality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552\n\n(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is\n\n“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The\n\ndissent contends that the clearly established “particular rule” in December 2014, Dissent\n\nOp. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its\n\ninception and reasonably related in scope to the circumstances that justified the interference\n\n\n 32\n\nin the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment\n\nstandard applies to all searches. It is not particularized to the facts of this case. The dissent\n\ntherefore attempts “to define clearly established law at a high degree of generality”\n\ncontrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152\n\n(2018) (quotations omitted).23\n\n Even if Dubbs and Safford offer plausible authority to support a special needs\n\nFourth Amendment violation here, whether they supply clearly established law is at most\n\ndebatable, and to be clearly established, “‘existing precedent must have placed the statutory\n\nor constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,\n\n136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”\n\nWesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties\n\n\n\n\n 23\n The Supreme Court has repeatedly emphasized for more than 35 years that\ngeneralized propositions of law are insufficient for clearly established law purposes.\nSee Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied\n[qualified immunity] principles” when its “discussion of qualified immunity consisted of\nlittle more than an assertion that a general right Anderson was alleged to have violated—\nthe right to be free from warrantless searches of one’s home unless the searching officers\nhave probable cause and there are exigent circumstances—was clearly established.”);\nBrosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was\nmistaken in using “the general proposition that use of force is contrary to the Fourth\nAmendment if it is excessive under objective standards of reasonableness” for clearly\nestablished purposes because the proposition is “cast a high level of generality” (quotations\nomitted)).\n\n 33\n\nand the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309\n\n(brackets and quotations omitted).24\n\n To the extent the Does attempt to argue that this is the rare alleged violation of\n\nminimal Fourth Amendment standards that is so “obvious” that a factually similar case\n\nis unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6\n\n(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case\n\nwhere a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations\n\nomitted).\n\n\n\n\n 24\n The dissent also contends that Safford clearly establishes that “the\ncategorically extreme intrusiveness” of a body search “requires some justification in\nsuspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting\nSafford, 575 U.S. at 376). But the Does and the dissent do not show that under the\ncircumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would\nhave known her conduct fell short. As alleged in the First Amended Complaint, the\nreport that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise\nabout the size of a nickel on her neck, a small red mark on her lower back, two small cuts\non her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report\nof child abuse, a reasonable social worker could understand these to be “suspected facts,”\nnot “general background possibilities.” To the extent Appellants pled, as the dissent\nsuggests, that “Ms. Woodard was never aware of facts that could have justified such an\nintrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both\nconclusory and contradicted by other allegations in the First Amended Complaint.\n 25\n See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even\nassuming that our previous cases were not sufficiently particularized to satisfy the\nordinary clearly established law standard, ours is ‘the rare obvious case, where the\nunlawfulness of the [state actor’s] conduct is sufficiently clear even though existing\nprecedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);\nsee also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.\n\n 34\n\n * * * \n\n In summary, the Does have not shown that Ms. Woodard’s search violated clearly\n\nestablished Fourth Amendment law. We affirm the district court’s conclusion that the\n\nDefendants, including supervisors, were entitled to qualified immunity and that the Fourth\n\nAmendment claims should be dismissed. 26\n\n B. Fourteenth Amendment Claims\n\n This section addresses the two substantive due process claims for violation of\n\nparental rights and interference with familial association. We describe our standard of\n\nreview and provide legal background on the facts required to allege these types of\n\nclaims and how those facts must “shock the conscience.” We then examine whether\n\nthe Does’ complaint states a plausible claim under these standards and, like the district\n\ncourt, find it lacking.\n\n1. Standard of Review\n\n We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for\n\nfailure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.\n\n\n\n\n 26\n In a different circuit with more developed law, the analysis of the “clearly\nestablished” prong of qualified immunity might have been different. As noted above,\nwe do not address the first step of qualified immunity analysis—whether the\nDefendants violated the Fourth Amendment.\n We note that El Paso County DHS later instituted a policy under which social\nworkers must ask parental permission or obtain a court order before searching and\nphotographing children for suspected abuse. Aplt. App., Vol. II at 7.\n\n 35\n\n2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead\n\nsufficient factual allegations “to state a claim to relief that is plausible on its face.”\n\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\n\n“when the plaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,\n\n556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the\n\ncomplaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594\n\nF.3d 723, 727 (10th Cir. 2010).\n\n Under our de novo review, “[a]ll well-pleaded facts, as distinguished from\n\nconclusory allegations, must be taken as true,” and we must liberally construe the\n\npleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.\n\nMcDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).\n\n2. Legal Background\n\n The following describes the parental right to direct medical care and the right of\n\nfamilial association. To state a claim for either, the plaintiff must show that the alleged\n\nconduct “shocks the conscience.”\n\n a. Substantive due process claims—“shocks the conscience”\n\n In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted\n\nthat the Supreme Court recognizes two types of substantive due process claims: (1)\n\nclaims that the government has infringed a “fundamental” right, see, e.g., Washington\n\n\n 36\n\nv. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted\n\nsuicide); and (2) claims that government action deprived a person of life, liberty, or\n\nproperty in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of\n\nSacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).\n\nHalley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the\n\nplaintiff challenges legislative action, and the shocks-the-conscience approach when\n\nthe plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due\n\nprocess claims—violation of the parental right to direct medical care and to familial\n\nassociation—challenge executive action, id. at 1154, and therefore are “shocks the\n\nconscience” claims.\n\n Executive action that shocks the conscience requires much more than\n\nnegligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions\n\nof a reckless official or one bent on injuring a person do not necessarily shock the\n\nconscience. Id. “Conduct that shocks the judicial conscience” is “deliberate\n\ngovernment action that is arbitrary and unrestrained by the established principles of\n\nprivate right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th\n\nCir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience\n\nshocking, a plaintiff must prove a government actor arbitrarily abused his authority or\n\nemployed it as an instrument of oppression.” Id. (brackets omitted) (quotations\n\nomitted). “The behavior complained of must be egregious and outrageous.” Id.; see\n\n\n 37\n\nBreithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because\n\nsuch conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did\n\nnot comport with traditional ideas of fair play and decency.”) The Supreme Court\n\nfound conscience-shocking behavior in a case involving a sheriff’s application of\n\nstomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).\n\nThis Circuit recently found a social worker’s various actions that led to physical and\n\nsexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213\n\n(10th Cir. 2017).\n\n b. Parental right to direct child’s medical care\n\n The Fourteenth Amendment protects the right of parents to make decisions\n\n“concerning the care, custody, and control of their children.” Troxel v. Granville, 530\n\nU.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions\n\nregarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,\n\n1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.\n\n“[W]hen a child’s life or health is endangered by her parents’ decisions, in some\n\ncircumstances a state may intervene without violating the parents’ constitutional\n\nrights.” Id. at 1198. As noted above, a violation of this right must be conscience\n\nshocking.\n\n\n\n\n 38\n\n c. Right of familial association\n\n The government’s “forced separation of parent from child, even for a short time,\n\nrepresents a serious impingement” on a parent’s substantive due process right to\n\nfamilial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial\n\nassociation claim must be based on allegations of abusive government authority. See\n\nGriffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at\n\n1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent\n\nmust allege “intent to interfere” with this right—that is, the state actor must have\n\ndirected conduct at the familial relationship “with knowledge that the statements or\n\nconduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d\n\n1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed\n\nagainst the state’s interest in protecting a child’s health and safety. See Youngberg v.\n\nRomeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522\n\nF.3d at 1092. In conducting this balancing, courts consider the severity of the\n\ninfringement on the protected relationship, the need for defendants’ conduct, and\n\npossible alternative courses of action. See Griffin, 983 F.2d at 1548.27\n\n\n 27\n In Halley, we explained that, the two-part test “simply describes the kind of\nbehavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,\nit shocks the conscience when: (1) the officials intended to deprive the plaintiff of a\nprotected relationship with a family member, and (2) the officials’ intrusion into the\nrelationship was not warranted by state interests in the health and safety of the family\nmember. Together, the facts alleged by the plaintiff on these points must meet the\nshocks-the-conscience standard.” Id. (footnote and citation omitted).\n 39\n\n To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to\n\ndeprive her of her protected relationship with her daughter, see Estate of B.I.C. v.\n\nGillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly\n\nburdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected\n\nan “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768\n\nF.2d 1186, 1190 (10th Cir. 1985).\n\n3. Analysis\n\n a. Right to direct medical care\n\n Ms. Doe’s allegations on the right to control medical treatment do not “shock the\n\nconscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)\n\nbehavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”\n\n“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of\n\nfair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n The allegations did not allege this level of severity. They did not allege\n\ninterference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.\n\nWoodard’s performing an initial examination to determine whether I.B. had been\n\nabused. To the extent this was a “medical decision,” it hardly rose to the level of what\n\nprecedent requires for “shocks the conscience.”\n\n\n\n\n 40\n\n b. Familial association\n\n Ms. Doe’s familial association allegations similarly did not “shock the\n\nconscience” under Halley. We consider whether the complaint alleged (1) a\n\ndeprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”\n\nthat relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”\n\n“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”\n\nMoore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n Again, the complaint did not allege this level of severity. The Does argue in\n\ntheir brief that their complaint should be read to allege that Ms. Woodard intended to\n\nseparate I.B. from her mother to conduct an examination without the mother present.\n\nBut even if the complaint could be read this way, it still needed to allege an intended\n\ndeprivation or suspension of the parent-child relationship that shocks the conscience.\n\nSee, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint\n\nsufficiently stated claim for § 1983 familial association claim where it was alleged\n\nDefendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to\n\nprevent parents from taking the child home from the hospital). Here, the complaint\n\nlacked allegations that Ms. Woodard’s motivation was anything other than to\n\ninvestigate potential child abuse.\n\n Moreover, the search happened during school hours when I.B.’s mother would\n\nnot otherwise have been with her. To the extent I.B. was separated from her mother\n\n\n 41\n\nduring a time when she would have wanted her mother to be present, this is a far cry\n\nfrom the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at\n\n1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter\n\nallegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at\n\n1238-39, 1246 (familial association Fourteenth Amendment claim stated where child\n\nwas removed from home and placed under protective care for a week).\n\n * * *\n\n In summary, the Does have failed to state a Fourteenth Amendment substantive due\n\nprocess claim for violation of parental rights or interference with familial association\n\nagainst the Defendants.\n\n III. CONCLUSION\n\n We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment\n\nclaims under qualified immunity, and (2) dismissal of the Does’ Fourteenth\n\nAmendment claims for failure to state a claim.28\n\n\n\n\n 28\n We also affirm the district court’s denial of the Does’ motion for leave to\namend their complaint. Amendment would have been futile given this opinion’s\nanalysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s\nInv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of\nCivil Procedure] 15(a) provides that leave to amend shall be given freely, the district\ncourt may deny leave to amend where amendment would be futile.”).\n\n 42\n\nNo. 18-1066, Doe v. Woodard", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355865/", "author_raw": "MATHESON, Circuit Judge."}, {"author": "BRISCOE, Circuit Judge, concurring", "type": "concurrence", "text": "BRISCOE, Circuit Judge, concurring in part, dissenting in part.\n\n I agree with the majority that it is not clearly established that a social worker\n\ninvestigating an allegation of child abuse must obtain a warrant before searching a child.\n\nBut, as the majority acknowledges, uncertainty about whether Ms. Woodard was required\n\nto obtain a warrant does not fully dispose of I.B.’s Fourth Amendment claim. Maj. Op. at\n\n26. “[T]he Does could still attempt to show that Ms. Woodard’s search failed to meet\n\nclearly established minimal Fourth Amendment reasonableness standards applicable to\n\nspecial needs searches.” Id. The majority concludes that the Does have not made this\n\nshowing because the law is not clearly established; in the majority’s view, the cases\n\napplying the special needs exception to a search of the intimate areas of a child’s body\n\nare too factually dissimilar from Ms. Woodard’s search of I.B. Id. at 28.\n\n I disagree. Even assuming the special needs exception applied, it was clearly\n\nestablished in December 2014 that Ms. Woodard’s search of I.B.’s intimate areas—a\n\nsearch that Ms. Woodard conducted without parental consent or a specific suspicion that\n\nevidence of abuse would be found—was unconstitutional. Any reasonable person would\n\nhave known, based on Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), cert.\n\ndenied, 540 U.S. 1179 (2004), and Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.\n\n364 (2009), that Ms. Woodard’s search violated the Fourth Amendment. Accordingly, I\n\nwould reverse the district court’s dismissal of the Does’ Fourth Amendment claims\n\nagainst April Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in\n\ntheir individual capacities, and remand for further proceedings. I would also reverse the\n\ndistrict court’s denial of the Does’ motion for leave to file a Second Amended Complaint.\n\nFor these reasons, I respectfully dissent.1\n\n I\n\n Ms. Woodard is entitled to qualified immunity “under § 1983 unless (1) [she]\n\nviolated a federal statutory or constitutional right, and (2) the unlawfulness of [her]\n\nconduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct.\n\n577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). I first address\n\nthe “clearly established” prong. McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018)\n\n(“Courts have discretion to decide the order in which to engage the two qualified\n\nimmunity prongs.” (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656\n\n(2014)). “To be clearly established, a legal principle must have a sufficiently clear\n\nfoundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. Two controlling cases\n\ndecided before December 2014—Dubbs, 336 F.3d 1194, and Safford, 557 U.S. 364—\n\napply the special needs exception to a search of the intimate areas of a child’s body.\n\n“Clearly established law ‘must [also] be particularized to the facts of the case.’” McCoy,\n\n887 F.3d at 1044 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). I\n\ntherefore discuss the facts of Dubbs and Safford in detail.\n\n In Dubbs, a group of parents sued a Head Start program for violating their\n\ntoddlers’ Fourth Amendment rights by conducting medical exams on the toddlers without\n\nparental consent. 336 F.3d at 1199–1200. “The children were required to lower or\n\n 1\n I agree with the majority’s conclusions regarding the Does’ Fourteenth\nAmendment claims.\n\n 2\n\nremove their underclothes and were given a medical examination that included, among\n\nother things, a genital exam and blood test.” Id. at 1200. The district court granted\n\nsummary judgment to the Head Start program because it found that the searches were\n\nreasonable under the special needs exception. Id. at 1201. The special need asserted was\n\n“that the physical examination of a child, done in order to comply with federal\n\nregulations, is an effective means of identifying physical and developmental impediments\n\nin children prior to them starting school.”2 Id. at 1214 (quotation marks omitted).\n\nWithout “resolv[ing] whether the ‘special needs’ doctrine applie[d],” we reversed\n\n“because it [was] plain that, if performed without the necessary consent, the searches\n\nwere unconstitutional even [under] the ‘special needs’ balancing test.” Id. at 1214.\n\n We explained that, “[i]n special needs cases, . . . the warrant and probable cause\n\nrequirement [is replaced] with a balancing test that looks to the nature of the privacy\n\ninterest, the character of the intrusion, and the nature and immediacy of the government’s\n\ninterest.”3 Id. at 1213. We also emphasized that “[t]he premise of the ‘special needs’\n\ndoctrine is that . . . compliance with ordinary Fourth Amendment requirements would be\n\n‘impracticable.’” Id. at 1214 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002)).\n\nThe searches conducted by the Head Start program were plainly unconstitutional because\n\n\n\n\n 2\n We concluded that there was a genuine issue of fact about whether the\n“discovery of child abuse was one purpose of the exams.” Dubbs, 336 F.3d at 1205.\n 3\n Dubbs was decided prior to Safford, so the special needs test is articulated\nslightly differently in each case.\n\n 3\n\n“[t]here [was] no reason[] . . . to think that parental notice and consent [was]\n\n‘impracticable.’” Id. at 1215.\n\n Lack of parental consent was a decisive fact in Dubbs because “the requirement\n\n. . . of parental consent in the case of minor children[] serves important practical as well\n\nas dignitary concerns, even when a social welfare agency . . . believes it is acting for the\n\ngood of the child.” Id. at 1207. “Even beyond constitutional values of privacy, dignity,\n\nand autonomy, parental notice and consent for childhood physical examinations are of\n\nsignificant practical value.” Id. Parents can “provide medical histories, discuss potential\n\nissues with the health care professionals, help to explain the procedures to the children,\n\nand reassure them about the disturbing and unfamiliar aspects of the exam—which\n\nincluded . . . visual . . . inspection of genitals by strangers.” Id.\n\n Six years after Dubbs, the Supreme Court also analyzed the constitutionality of a\n\nsearch of a child’s intimate areas under the special needs exception. See Safford, 557\n\nU.S. 364. In Safford, a 13-year-old student was accused of distributing prescription and\n\nover-the-counter medications to other students at her school. Id. at 368. The pills had\n\npreviously made another student sick. Id. at 372. In an effort to locate the medications,\n\nan assistant principal and administrative assistant searched the accused student’s\n\nbackpack, but found nothing. Id. The assistant principal then “instructed [the assistant]\n\nto take [the student] to the school nurse’s office to search her clothes for pills.” Id. at\n\n369. They found no medications. Id. Having already removed all of her clothing except\n\nher underwear, the student “was told to pull her bra out and to the side and shake it, and\n\nto pull out the elastic on her underpants, thus exposing her breasts and pelvic area to\n\n 4\n\nsome degree.” Id. Again, “[n]o pills were found.” Id. The student’s mother sued the\n\nassistant principal for violating her daughter’s Fourth Amendment rights. Id.\n\n The Court explained that this type of search “implicate[s] the rule of\n\nreasonableness as stated in [New Jersey v. T.L.O., 469 U.S. 325 (1985)], that ‘the search\n\nas actually conducted [be] reasonably related in scope to the circumstances which\n\njustified the interference in the first place.’” Id. at 375 (second alteration in original)\n\n(quoting T.L.O., 469 U.S. at 341). Under this special needs test, “[t]he scope [of the\n\nsearch] will be permissible[] . . . when it is ‘not excessively intrusive in light of the age\n\nand sex of the [child] and the nature of the’” government’s interest in conducting the\n\nsearch. Id. (quoting T.L.O., 469 U.S. at 342).\n\n The Court emphasized the severity of a search that “expos[es]” a child’s “intimate\n\nparts.” Id. at 377. “[B]oth subjective and reasonable societal expectations of personal\n\nprivacy support the treatment of . . . a search [of a child’s intimate areas] as categorically\n\ndistinct” from more limited searches of her “outer clothing and belongings.” Id. at 374.\n\n“The meaning of such a search, and the degradation its subject may reasonably feel, place\n\na search that intrusive in a category of its own demanding its own specific suspicions.”\n\nId. at 377. “[G]eneral background possibilities fall short; a reasonable search [so]\n\nextensive calls for suspicion that it will pay off.” Id. at 376. Ultimately, the Court held\n\nthat the assistant principal’s search was unconstitutional because he did not possess facts\n\nsuggesting either that the alleged medications posed any “danger to the students” or that\n\nthe student was hiding medications “in her underwear.” Id. at 376–77.\n\n\n\n 5\n\n The legal principle controlling the constitutionality of Ms. Woodard’s search of\n\nI.B. is clearly established because Dubbs and Safford are “particularized to the facts of\n\n[this] case.” McCoy, 887 F.3d at 1044 (quoting Pauly, 137 S. Ct. at 552). Both cases\n\nanalyze the search of the intimate areas of a child’s body under the special needs\n\nexception, which is the issue presented here. In both cases, the searches were justified by\n\nthe state’s interest in child welfare—“identifying physical and developmental\n\nimpediments” in Dubbs, 336 F.3d at 1214, and preventing students from distributing\n\nmedications in Safford. Both searches were conducted by multiple adults, on school\n\nproperty, without parental notification, consent, or presence. In both Dubbs and Safford,\n\nthe searches violated the Fourth Amendment.\n\n This “precedent [is] clear enough that every reasonable official would interpret it\n\nto establish the particular rule the [Does] seek[] to apply,” Wesby, 138 S. Ct. at 590,\n\nnamely that Ms. Woodard’s search needed to be “justified at its inception and reasonably\n\nrelated in scope to the circumstances that justified the interference in the first place,”\n\nAplt. Br. at 36 (citing Safford, 557 U.S. at 375). See Jones v. Hunt, 410 F.3d 1221,\n\n1228–31 (10th Cir. 2005) (reversing grant of qualified immunity to a social worker who\n\nseized a student on school property because the seizure was not “justified at its\n\ninception”). Given their factual similarities to the search at issue here, Dubbs and Safford\n\n“obviously resolve whether the circumstances . . . confronted” by Ms. Woodard satisfied\n\nthe special needs exception. Wesby, 138 S. Ct. at 590 (quotation marks omitted).\n\n The majority concludes that the searches at issue in Dubbs and Safford are too\n\ndissimilar from Ms. Woodard’s search of I.B. for Dubbs and Safford to be clearly\n\n 6\n\nestablished law. Maj. Op. at 28–32. I do not think that Defendants are entitled to\n\nqualified immunity based on the factual differences between Dubbs, Safford, and\n\nWoodard’s search of I.B. “[T]here does not have to be ‘a case directly on point[;]’\n\nexisting precedent must [have] place[d] the lawfulness of the particular [action] ‘beyond\n\ndebate.’” Wesby, 138 S. Ct. at 590 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741\n\n(2011)). At the very least, Safford clearly established the legal principle that, under the\n\nspecial needs exception, a government official’s search of a child’s body must be\n\n“reasonably related in scope to the circumstances which justified the interference in the\n\nfirst place.” 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341). Safford also established\n\nthat, because of “the categorically extreme intrusiveness of a search down to the body,”\n\nsuch a search “requires some justification in suspected facts, general background\n\npossibilities fall short.” Id. at 376. To be “reasonable,” a “search that extensive calls for\n\nsuspicion that it will pay off.” Id.\n\n Ms. Woodard could not have thought herself exempt from Safford. “We have held\n\nthat the Fourth Amendment subjects state social workers to its requirements,” Jones, 410\n\nF.3d at 1225, because “[t]here is no ‘social worker’ exception to the Fourth Amendment,”\n\nDubbs, 336 F.3d at 1205. Neither does the fact that Ms. Woodard was investigating an\n\nallegation of child abuse meaningfully set her apart from a school administrator\n\ninvestigating the distribution of medications on campus. See Dubbs, 336 F.3d at 1206\n\n(“The focus of the [Fourth] Amendment is . . . on the security of the person, not the\n\nidentity of the searcher or the purpose of the search.”); Franz v. Lytle, 997 F.2d 784, 793\n\n(10th Cir. 1993) (A police officer’s “motive to protect [a] child [from abuse] does not\n\n 7\n\nvitiate [the child’s] Fourth Amendment rights.”). While the effective investigation of\n\nchild abuse is “a strong government interest,” Roska ex rel. Roska v. Peterson, 328 F.3d\n\n1230, 1242 (10th Cir. 2003), that does not relieve a social worker of her obligation to\n\njustify the search of a child’s intimate areas with “facts,” not “general possibilities,”\n\nSafford, 557 U.S. at 376.4\n\n As I discuss in the next section, this is where Ms. Woodard fell short of meeting\n\nthe standard required by clearly established law. The Does have pled an unconstitutional\n\nsearch under Safford because they have alleged that Ms. Woodard was not aware of\n\nspecific facts to justify a reasonable suspicion that she would find evidence of abuse by\n\nexamining I.B.’s intimate areas. See McCoy, 887 F.3d at 1052–53 (concluding that\n\nprecedent was clearly established law even though “not factually identical” to the case on\n\nappeal because the precedent was “factually analogous” and “share[d] . . . decisive\n\nfactual circumstance[s]” with the case on appeal).\n\n II\n\n Because I would conclude that there is clearly established law on the question of\n\nwhether Ms. Woodard’s search was constitutional under the special needs exception, I\n\nwould also address the remaining prong of the qualified immunity test—whether Ms.\n\nWoodard “violated [I.B.’s] federal . . . constitutional right.” Wesby, 138 S. Ct. at 589.\n\n\n 4\n “[W]e must be sensitive to the fact that society’s interest in the protection of\nchildren is, indeed, multifaceted, composed not only with concerns about the safety and\nwelfare of children from the community’s point of view, but also with the child’s\npsychological well-being, autonomy, and relationship to the family or caretaker setting.”\nFranz, 997 F.2d at 792–93.\n\n 8\n\nMs. Woodard’s search needed to be “reasonably related in scope to the circumstances\n\nwhich justified the interference in the first place,” meaning that the search should “not\n\n[have been] excessively intrusive in light of the age and sex of [I.B.] and the nature of\n\nthe” government interest. Safford, 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341,\n\n342). Certainly, the government’s interest in thoroughly and promptly investigating\n\nallegations of child abuse is weighty. See Roska, 328 F.3d at 1242 (“It is true that the\n\nstate has a strong interest in protecting children, and that this interest should be taken into\n\naccount in evaluating the reasonableness of [a] search . . . .”). But that interest does not\n\nsupersede I.B.’s Fourth Amendment right to be free from unreasonable search. See id.\n\nAccording to the operative First Amended Complaint, Ms. Woodard was never aware of\n\nfacts that could have justified such an intrusive search of a four-year-old girl, even under\n\nthe special needs exception. See Jones, 410 F.3d at 1223 (“When reviewing a dismissal\n\npursuant to Rule 12(b)(6), we accept the well-pleaded allegations of the complaint as true\n\nand view them in the light most favorable to the plaintiff.”). Because this analysis is fact-\n\nintensive, I recount and expand upon the facts discussed by the majority.\n\n The El Paso County Department of Human Services “received a report that I.B.\n\nwas being abused” on December 9, 2014. App. Vol. I at 15. “Allegations of abuse\n\nincluded little bumps on I.B.’s face, a bruise about the size of a nickel on her neck, a\n\nsmall red mark on her lower back, two small cuts on her stomach, and bruised knees.”\n\nId. The next day, on December 10, 2014, Ms. Woodard went to I.B.’s school. Id. at 16.\n\nAt that time, Ms. Woodard had already “received permission from her supervisor[] . . . to\n\n\n\n 9\n\nview I.B.’s buttocks, stomach/abdomen, and back so [she] could look for marks/bruises.”\n\nId. (quotation marks omitted).\n\n I.B was taken to the school nurse’s office with Ms. Woodard and a school health\n\nparaprofessional. Id. Without first assessing the accuracy of the report of abuse—which,\n\ngiven the location of the alleged injuries, could have been accomplished without fully\n\nremoving I.B.’s clothes—“Ms. Woodard instructed I.B. to show her buttocks and\n\nstomach and back.” Id. Ms. Woodard and the school health employee then “took off all\n\nI.B.’s clothes” and “viewed I.B.” Id. When Ms. Woodard later documented her findings,\n\nshe noted that “the marks observed were not consistent with the” report of alleged abuse.\n\nId. at 17.\n\n Nevertheless, Ms. Woodard and the school nurse “prepared to take photographs.”\n\nId. at 16. “I.B. told Ms. Woodard she did not want photographs taken.” Id. Undeterred,\n\nMs. Woodard “took color photographs of private and unclothed areas of I.B.’s body.” Id.\n\nAt no point did Ms. Woodard notify Ms. Doe of her plan to search I.B. or seek consent\n\nfrom Ms. Doe to conduct the search. See id. at 17.\n\n The next day, on December 11, 2014, Ms. Woodard visited the Does’ home to\n\ncontinue her investigation. Id. at 16. On January 5, 2015, “[t]he case was closed as\n\nunfounded.” Id. at 17.\n\n Safford dictates the outcome of this case. The privacy intrusion at issue here is\n\nmore serious than in Safford, where the student’s “breasts and pelvic area” were briefly\n\nexposed “to some degree,” 557 U.S. at 374, because Ms. Woodard removed all of I.B.’s\n\nclothes and took color photographs of I.B.’s naked body. To survive Fourth Amendment\n\n 10\n\nscrutiny, even under the special needs exception, Ms. Woodard’s search would have\n\nrequired “specific suspicions” that I.B was in “danger” or that there was “evidence of\n\nwrongdoing” in the private areas of I.B.’s body. Id. at 377. As alleged, Ms. Woodard\n\nhad neither.\n\n The Does’ allegations do not support an inference that Ms. Woodard believed I.B.\n\nto be in particular danger. See id. at 375–76 (“[T]he content of the [vice principal’s]\n\nsuspicion failed to match the degree of intrusion” because “[h]e must have been aware of\n\nthe nature and limited threat of the specific drugs he was searching for[.]”). DHS did not\n\ndispatch Ms. Woodard to investigate the allegation of abuse until the day after its receipt,\n\nwhen I.B. was already back at school. It is reasonable to infer that, had DHS or Ms.\n\nWoodard considered I.B. to be in particular danger, Ms. Woodard would have intervened\n\nmore promptly. Nor is there any indication that, when Ms. Woodard arrived at the\n\nschool, I.B. appeared more injured or more in danger than the report suggested.\n\n Neither could Ms. Woodard have had a “specific suspicion[]” that evidence of\n\nabuse would be found in the private areas of I.B.’s body. Id. at 377. No facts were pled\n\nthat support such a suspicion. The report of abuse was limited to I.B.’s neck, back,\n\nstomach, and knees—all non-private, or at least less private, areas of I.B.’s body.\n\nNothing more than a “general background possibilit[y]” could have supported Ms.\n\nWoodard’s apparent belief that she would find evidence of abuse by fully undressing I.B.\n\nId. at 376. But as the Supreme Court has held, such general possibilities “fall short”\n\nwhen “the categorically extreme intrusiveness of a search down to the body of a” child is\n\nat issue. Id. Even if Ms. Woodard had initially limited her search to the areas of I.B.’s\n\n 11\n\nbody implicated by the report of abuse—which Ms. Woodard did not do—she would\n\nhave learned no facts to support expanding the search; “the marks observed were not\n\nconsistent with the” report of abuse. App. Vol. I at 17. Therefore, based on Safford, Ms.\n\nWoodard’s search was unconstitutional under the special needs exception to the Fourth\n\nAmendment.\n\n I would reach the same conclusion relying on Dubbs. Ms. Woodard’s search was\n\nunreasonable because she had “no justification for proceeding without parental notice and\n\nconsent.” Dubbs, 336 F.3d at 1214. Ms. Woodard began to investigate the allegation of\n\nabuse the day after the report was received by DHS, ostensibly giving Ms. Woodard time\n\nto speak with Jane Doe, I.B.’s mother. App. Vol. I at 15–16. In fact, Ms. Woodard had\n\ntime to secure her supervisor’s approval for the search prior to arriving at I.B.’s school,\n\nid. at 16, making it all the more reasonable to infer that Ms. Woodard had time to seek\n\nconsent from Ms. Doe. Instead, Ms. Woodard elected to search I.B. without Ms. Doe’s\n\nconsent, which left four-year-old I.B. alone in the school nurse’s office as two adult\n\nstrangers examined and photographed her naked body in search of signs of physical\n\nabuse. Ms. Doe could not “discuss potential issues with” Ms. Woodard, “help to explain”\n\nthe search to I.B., or “reassure [I.B.] about the disturbing and unfamiliar aspects of the\n\nexam.” Dubbs, 336 F.3d at 1207. “[I]t is plain that” Ms. Woodard’s search of I.B. was\n\n“unconstitutional.” Id. at 1214.\n\n\n\n\n 12\n\n The unconstitutional nature of Ms. Woodard’s search becomes even clearer upon\n\nconsideration of new facts alleged in the proposed Second Amended Complaint.5 First,\n\nthe Does allege that Ms. Woodard was aware, before she searched I.B., of a previous\n\nunfounded report of abuse from I.B.’s school. App. Vol. I at 206. Ms. Woodard also\n\n“knew that Jane Doe had been cooperative in [the] previous DHS investigation.” Id.\n\nSecond, the Does allege that Ms. Woodard “interviewed I.B. at her school prior” to the\n\nsearch. Id. at 230. During this interview, “I.B. told [Ms.] Woodard that she gets red dots\n\non her face when she cries, but that she did not have any other ‘owies.’” Id.\n\n Because Ms. Woodard knew that I.B.’s school had previously made an unfounded\n\nreport of abuse, it was less reasonable for Ms. Woodard to rely on a report from the same\n\nsource to justify a search of the intimate areas of I.B.’s body. That Ms. Woodard knew\n\nMs. Doe had cooperated in the previous DHS investigation also made it less reasonable\n\nfor Ms. Woodard to search I.B. without first attempting to notify Ms. Doe. Finally, when\n\nI.B. explained the marks on her face and denied any other injuries, it was not reasonable\n\nfor Ms. Woodard to then expand the search beyond the scope of reported abuse, to\n\ninclude I.B.’s entire body. Ms. Woodard’s “search[,] as actually conducted,” needed to\n\nbe “reasonably related in scope to the circumstances which justified the [search] in the\n\nfirst place.” Safford, 557 U.S. at 375. The new facts alleged in the proposed Second\n\n 5\n Because the Does’ motion for leave to amend was not futile, in that it would state\na claim under the Fourth Amendment, I would also reverse the district court’s denial of\nthe motion to amend. See Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1249 (10th\nCir. 2009) (“[W]hen denial [of a motion to amend a pleading] is based on a determination\nthat amendment would be futile, our review for abuse of discretion includes de novo\nreview of the legal basis for the finding of futility.”).\n\n 13\n\nAmended Complaint make it all the more plain that Ms. Woodard’s search was\n\nunconstitutional.\n\n Because I would conclude that Ms. Woodard violated I.B.’s clearly established\n\nFourth Amendment rights, “it [would] become[] [Defendants’] burden to prove that her\n\nconduct was nonetheless objectively reasonable.” Roska, 328 F.3d at 1251. Defendants\n\nargue that Ms. Woodard’s search was objectively reasonable because it was authorized\n\nby statute. “In considering the objective legal reasonableness of the state officer’s\n\nactions, one relevant factor is whether the defendant relied on a state statute, regulation,\n\nor official policy that explicitly sanctioned the conduct in question.” Id. (quotation marks\n\nomitted). “[A]n officer’s reliance on an authorizing statute does not render the conduct\n\nper se reasonable,” but “the existence of a statute or ordinance authorizing particular\n\nconduct is a factor which militates in favor of the conclusion that a reasonable official\n\nwould find that conduct constitutional.” Id. at 1252 (quotation marks omitted).\n\n [A] court must consider whether reliance on the statute rendered the\n [official’s] conduct “objectively reasonable,” considering such\n factors as: (1) the degree of specificity with which the statute\n authorized the conduct in question; (2) whether the officer in fact\n complied with the statute; (3) whether the statute has fallen into\n desuetude; and (4) whether the officer could have reasonably\n concluded that the statute was constitutional.\n\nId. at 1253 (footnotes omitted).\n\n Defendant’s rely on Colorado Revised Statute § 19-3-306(1), which states: “Any\n\n. . . social worker . . . who has before him a child he reasonably believes has been abused\n\nor neglected may take or cause to be taken color photographs of the areas of trauma\n\n\n\n 14\n\nvisible on the child.” I do not think this statute renders Ms. Woodard’s search\n\nreasonable.\n\n First, the statute does not authorize Ms. Woodard to undress I.B. The statute\n\nspecifically limits Ms. Woodard’s authority to photograph “areas of trauma” that are\n\n“visible.” Id. That implies some areas of trauma are not visible. Once a child is\n\nundressed, all external areas of trauma become visible. But the statute says nothing about\n\nwhat procedures a social worker must follow to undress a child.\n\n Moreover, Ms. Woodard did not photograph areas of trauma. The Does allege that\n\nWoodard took photographs of “private and unclothed areas of I.B.’s body,” App. Vol. I at\n\n16, even though the report of abuse only implicated non-private parts of I.B.’s body and\n\n“the marks observed [on I.B.’s body] were not consistent” with the report of abuse, id. at\n\n17.\n\n Ms. Woodard also let I.B. return to school and her mother’s custody, which further\n\nsuggests that Ms. Woodard did not “reasonably believe[ I.B.] ha[d] been abused or\n\nneglected.” Colo. Rev. Stat. § 19-3-306(1). Defendants have therefore not met their\n\nburden of showing that the state statute rendered Ms. Woodard’s search objectively\n\nreasonable. See Halley v. Huckaby, 902 F.3d 1136, 1151–52 (10th Cir. 2018) (state\n\nstatute authorizing interview of a suspected victim of child abuse “at any place” did not\n\nmake it reasonable to think that “DHS [could] . . . take a child into custody anywhere and\n\neverywhere”).\n\n III\n\n\n\n 15\n\n I concur in the majority’s rulings on the Fourteenth Amendment claims and would\n\nAFFIRM on those claims. Because I would conclude the Does have alleged that Ms.\n\nWoodard violated I.B.’s clearly established Fourth Amendment rights, I would\n\nREVERSE in part and REMAND for further proceedings on the Does’ Fourth\n\nAmendment claims, as alleged in the proposed Second Amended Complaint, against\n\nApril Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in their\n\nindividual capacities.\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355865/", "author_raw": "BRISCOE, Circuit Judge, concurring"}]}	BRISCOE	LUCERO	MATHESON	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578612/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform ; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 3, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nJANE DOE; I.B.,\n\n Plaintiffs - Appellants,\n\nv. No. 18-1066\n\nAPRIL WOODARD, in her individual\ncapacity; CHRISTINA NEWBILL, in her\nindividual capacity; SHIRLEY RHODUS,\nin her individual capacity; RICHARD\nBENGTSSON, in his individual capacity;\nEL PASO COUNTY BOARD OF\nCOUNTY COMMISSIONERS,\n\n Defendants - Appellees,\n\nand\n\nREGGIE BICHA, in his official capacity as\nExecutive Director of the Colorado\nDepartment of Human Services; JULIE\nKROW, in her official capacity as\nExecutive Director of the El Paso County\nDepartment of Human Services,\n\n Defendants.\n_______________________\n\nPARENTAL RIGHTS FOUNDATION;\nNATIONAL CENTER FOR HOUSING\nAND CHILD WELFARE; NATIONAL\nCOALITION FOR CHILD PROTECTION\nREFORM; PARENT GUIDANCE\nCENTER; MARK FREEMAN; PACIFIC\nJUSTICE INSTITUTE,\n\n Amici Curiae.\n\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01165-KLM)\n _________________________________\n\nTheresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,\nMonument, Colorado, for Plaintiffs - Appellants.\n\nKenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant\nCounty Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -\nAppellees.\n\nKevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae\nbrief for Pacific Justice, in support of Appellants.\n\nDarren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and\nCarolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and\nMark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights\nFoundation, National Center for Housing and Child Welfare, National Coalition for Child\nProtection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of\nAppellants.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that\n\nApril Woodard, a caseworker from the El Paso County Department of Human Services\n\n(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program\n\nin Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed\n\n\n\n 2\n\nI.B., performed a visual examination for signs of abuse, then photographed I.B.’s\n\nprivate areas and partially unclothed body.\n\n In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials\n\nviolated the Fourth Amendment’s prohibition on unreasonable searches and the\n\nFourteenth Amendment’s protection against undue interference with parental rights and\n\nwith familial association. The Defendants moved to dismiss.1 The district court\n\ngranted the motion, holding that qualified immunity precludes the Fourth Amendment\n\nunlawful search claim and that the complaint failed to state a Fourteenth Amendment\n\nclaim.\n\n The Does appeal these rulings and the district court’s denial of leave to amend\n\ntheir complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I. BACKGROUND\n\n A. Factual Background\n\n In reviewing the grant of a motion to dismiss, we accept the allegations in the\n\ncomplaint as true and draw all reasonable inferences in favor of the non-moving party—\n\nhere, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).\n\n\n\n\n 1\n The Does sued six defendants, who are identified in the procedural history\nsection below.\n\n 3\n\n In December 2014, I.B. was attending preschool at the Head Start Program in\n\nColorado Springs.2 An anonymous source reported to DHS possible signs of abuse on\n\nI.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red\n\nmark on her lower back, two small cuts on her stomach, and bruised knees. DHS\n\ncaseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s\n\noffice.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.\n\nWoodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,\n\nstomach, and back using a county-issued cell phone.4\n\n The Does alleged that the undressing and photographing were “executed under an\n\nunwritten, but well-established county-wide policy or custom encouraging the practice,\n\noften without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.\n\n\n\n\n 2\n Pacific Justice’s amicus brief explains that Head Start is “a federally funded\npreschool in which children engage in a course of age-appropriate studies conducted by\na teacher. Although not a K-12 public school, Head Start primarily functions as an\neducational institution for very young children.” Pacific Justice Amicus Br. at 2\n(footnote omitted). The “program meets on public school campuses.” Id.\n\n 3\n This was the not DHS’s first investigation regarding I.B. The Does alleged\n that, between 2012 and 2014, DHS investigated their home “around half a dozen\n times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One\n investigation was based on a report that I.B. had marks resembling a hand print on\n her bottom and lower-back bruising. DHS visually examined I.B. with her clothing\n removed. DHS closed the investigation, finding in January 2014 the report was\n unfounded. Id. ¶¶ 24-32.\n 4\n According to Defendants, “the school’s health paraprofessional” assisted Ms.\nWoodard. Aplee. Br. at 7.\n 4\n\nApp., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive\n\nDirector of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s\n\ndepartment, Shirley Rhodus, implemented it.\n\n The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect\n\nher of abuse, and she cooperated with the investigation. Ms. Woodard did not inform\n\nMs. Doe that she had inspected and photographed I.B. in a state of partial undress. The\n\ncase was closed as unfounded.\n\n After DHS closed the case, I.B. told her mother about the incident, saying she\n\nhoped she would not see Ms. Woodard again because “I don’t like it when she takes all\n\nmy clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard\n\nhad taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe\n\napproached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first\n\ndenied them. Two months later, she reversed course and admitted that she did the\n\ninspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse\n\naccusation and investigation takes priority over the mother’s parental rights.\n\n B. Procedural History\n\n The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth\n\nAmendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment\n\n\n\n\n 5\n\nrights.5 The Fourth Amendment claims were based on both the visual inspection and\n\nthe photographs; the Fourteenth Amendment claims only on the inspection. In addition\n\nto Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.\n\nNewbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;\n\nReggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County\n\nCommissioners (“BOCC”). The Does sought damages and prospective relief against a\n\n“statewide and local policy and custom” encouraging “strip searching children\n\nwhenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to\n\ndismiss based on qualified immunity and failure to state a claim.\n\n1. Dismissal of Fourth Amendment Claims\n\n A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled\n\nto qualified immunity on the Fourth Amendment claim7 and dismissed the claim\n\nwithout prejudice. When the Does sought to file an amended complaint, the court\n\nrejected the request on futility grounds and dismissed the claim with prejudice.\n\n\n\n\n 5\n Because I.B. is a minor, Ms. Doe brought her claims for her. Although we\nrefer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the\nFourth Amendment claims are solely on behalf of I.B.\n 6\n The parties agreed to have all proceedings in the case decided by a magistrate\njudge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the\n“district court.”\n 7\n Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,\n2016).\n 6\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed the Fourth Amendment claim against Ms. Woodard\n\nand Ms. Newbill because the law was not so “clearly established” as to “give\n\nDefendants fair warning that the taking photographs of portions of I.B.’s unclothed\n\nbody required a warrant.” Dist. Court Op. at 16.\n\n To the extent the Fourth Amendment claim was based on the Defendants’ failure\n\nto show that the “special needs” doctrine justified the search, the district court\n\nrecognized that a special needs search comports with the Fourth Amendment only if it\n\nis “justified at its inception” and “reasonably related in scope to the circumstances\n\nwhich justified interference in the first place.” Id. at 19 (quotations omitted). But, the\n\ndistrict court concluded, the Does’ complaint “lack[ed] allegations” the search was\n\nunjustified at its inception or was improper in scope. Id.8\n\n The district court dismissed the Does’ Fourth Amendment claim without\n\nprejudice.\n\n b. Ms. Rhodus and Mr. Bengtsson\n\n The district court dismissed the Fourth Amendment § 1983 supervisory liability\n\nclaim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded\n\ntheir supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The\n\n\n 8\n The district court also said Defendants’ conduct was objectively reasonable\nbecause they complied with a Colorado statute authorizing photography in cases of\nsuspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).\n 7\n\ncourt also dismissed the claim for prospective relief against Ms. Rhodus and Mr.\n\nBengtsson, which demanded safeguards on storing photographs obtained in future\n\nsearches, because it was based only on a “mere potential violation.” Id. at 23-24.\n\n2. Dismissal of Fourteenth Amendment Claims\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed, for failure to state a claim, the Does’ substantive\n\ndue process claims under the Fourteenth Amendment for violation of the parental right\n\nto direct medical care and of the right to familial association.\n\n i. Right to direct medical care\n\n The district court dismissed the parental rights claim, stating that (1) the visual\n\nexam of a child was not “essentially a medical procedure”; (2) the complaint did not\n\nallege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;\n\nand (3) the complaint did not allege that the exam caused any “interference with\n\n[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).\n\n ii. Right to familial association\n\n The district court dismissed the familial association claims, concluding the Does\n\ndid not sufficiently plead that (1) the Defendants intended to separate I.B. from her\n\nmother or that (2) the Defendants knew their conduct would adversely affect the\n\nfamilial relationship. Id.\n\n b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha\n\n\n 8\n\n The district court also dismissed the Fourteenth Amendment supervisory claims\n\nagainst Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.\n\nBengtsson and Mr. Bicha because the complaint failed to allege an underlying violation\n\nof the Fourteenth Amendment.9\n\n3. Denial of Leave to Amend and Dismissal with Prejudice\n\n When the Does attempted to amend their complaint, the district court denied the\n\nrequest, stating that the Does “have not addressed the Court’s determination that\n\nDefendants were entitled to qualified immunity because the law was not clearly\n\nestablished with respect to whether Defendants needed a warrant in order to search the\n\nminor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as\n\nasserted, the Court cannot find that Defendants knowingly violated the law, even\n\nassuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73\n\n(citations and quotations omitted).10\n\n\n\n\n 9\n The Does do not appeal the dismissal of the Fourteenth Amendment official-\ncapacity claims.\n 10\n The Does sued the BOCC for its role in the same alleged violations under the\nFourth and Fourteenth Amendments. The district court dismissed these claims because\nthe BOCC is a county rather than state entity and lacked final policymaking control.\nThis ruling is not on appeal.\n\n 9\n\n The district court also dismissed the Fourth and Fourteenth amendment claims\n\nwith prejudice.11\n\n\n\n\n 11\n The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their\nofficial capacities survived the motion to dismiss. Limited discovery was granted\nregarding standing on the claim, but it was later dismissed by stipulation of the parties.\nNo prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity\nis part of this appeal.\n 10\n\n II. DISCUSSION\n\n Our discussion reviews (A) the district court’s qualified immunity dismissal of\n\nthe Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth\n\nAmendment claims for failure to state a claim. We affirm in both instances.\n\n A. Fourth Amendment Claims\n\n This section provides background on the standard of review; qualified immunity\n\nlaw; Fourth Amendment search requirements, with emphasis on the special needs\n\ndoctrine; and analysis of whether the Does have shown there was clearly established\n\nlaw at the time of the search to support their claim. We conclude they have not shown\n\nclearly established law that the special needs doctrine could not support the search in\n\nthis case. They therefore have not shown that a warrant clearly was required.12\n\n1. Standard of Review\n\n We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to\n\nqualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).\n\n\n 12\n This approach is similar to the one we followed in McInerney v. King, 791 F.3d\n1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth\nAmendment violation based on the defendant police officer’s warrantless search of her\nhome. We reversed the district court’s grant of qualified immunity. As in our case, the\nsearch was conducted without a warrant, and the defendant relied on an exception to the\nwarrant requirement to contest the Fourth Amendment claim. After reviewing the existing\ncase law, we concluded it was clearly established that the exigent circumstances exception\ndid not apply and therefore the defendant was not entitled to qualified immunity. Id. at\n1228. Here, after reviewing existing case law, the opinion concludes that the law was not\nclearly established that the special needs exception did not apply, and therefore the\ndefendants were entitled to qualified immunity.\n 11\n\n“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the\n\ncomplaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.\n\nPelletier, 516 U.S. 299, 309 (1996).\n\n2. Legal Background\n\n a. Qualified immunity\n\n Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,\n\nor causes to be subjected, any citizen of the United States . . . to the deprivation of any\n\nrights, privileges, or immunities secured by the Constitution and laws, shall be liable to\n\nthe party injured . . . .” “Individual defendants named in a § 1983 action may raise a\n\ndefense of qualified immunity, which shields public officials from damages actions\n\nunless their conduct was unreasonable in light of clearly established law.” Estate of\n\nBooker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations\n\nomitted).\n\n “[Q]ualified immunity protects ‘all but the plainly incompetent or those who\n\nknowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting\n\nMalley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified\n\nimmunity imposes the burden on the plaintiff to show “both that [1] a constitutional\n\nviolation occurred and [2] that the constitutional right was clearly established at the\n\ntime of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)\n\n(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]\n\n\n 12\n\nsound discretion in deciding which of the two prongs of the qualified immunity\n\nanalysis should be addressed first in light of the circumstances in the particular case at\n\nhand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\n\n A constitutional right is clearly established if it is “sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that right.”\n\nMullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\n\nThe plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,\n\nor the clearly established weight of authority from other courts must have found the\n\nlaw to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th\n\nCir. 2011) (quotations omitted). Generally, “existing precedent must have placed the\n\nstatutory or constitutional question beyond debate” for a right to be clearly established.\n\nThe Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).\n\n There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d\n\n927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established\n\nlaw should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,\n\n137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138\n\nS. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of\n\nspecificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of\n\nthe law . . . gave [the defendants] fair warning that their alleged treatment of [the\n\nplaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\n\n\n 13\n\n “[G]eneral statements of the law are not inherently incapable of giving fair and\n\nclear warning to officers, but in the light of pre-existing law the unlawfulness must be\n\napparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be\n\nthe rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently\n\nclear even though existing precedent does not address similar circumstances.” Wesby,\n\n138 S. Ct. at 590 (quotations omitted).\n\n For supervisory liability, “[p]ersonal participation is an essential allegation in a\n\n1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A\n\nsupervisor cannot be held vicariously liable for the constitutional violations of\n\nsubordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)\n\n(“Supervisors are only liable under § 1983 for their own culpable involvement in the\n\nviolation of a person’s constitutional rights.”) “[D]irect participation,” however, “is\n\nnot necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations\n\nomitted). “The requisite causal connection is satisfied if the defendant set in motion a\n\nseries of events that the defendant knew or reasonably should have known would cause\n\nothers to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).\n\n“[T]he establishment or utilization of an unconstitutional policy or custom can serve as\n\nthe supervisor’s affirmative link to the constitutional violation . . . . Where an official\n\nwith policymaking authority creates, actively endorses, or implements a policy which\n\nis constitutionally infirm, that official may face personal liability for the violations\n\n\n 14\n\nwhich result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,\n\n1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable\n\nunder § 1983 where there is no underlying violation of a constitutional right by a\n\nsupervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).\n\n b. Fourth Amendment search requirements\n\n i. The warrant requirement\n\n The Fourth Amendment protects people from unreasonable government searches\n\nof their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects\n\nthe right of the people to be ‘secure in their persons’ from government intrusion\n\nwhether the threat to privacy arises from a policeman or a Head Start administrator.”\n\nDubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social\n\nworker’ exception to the Fourth Amendment.” Id.\n\n As a general rule, a search requires a warrant based on probable cause. Illinois\n\nv. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se\n\nunreasonable under the Fourth Amendment—subject only to a few ‘specifically\n\nestablished and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328\n\nF.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357\n\n\n\n\n 15\n\n(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a\n\n“special need.” In this case, there was no warrant, consent, or exigent circumstance.\n\nThe qualified immunity question concerns, therefore, (1) whether a warrant was\n\nrequired for the search because the special needs exception did not apply, and (2) if it\n\ndid, whether the search nonetheless violated the special needs doctrine.\n\n ii. Special needs doctrine\n\n “‘Special needs’ is the label attached to certain cases where ‘special needs,\n\nbeyond the normal need for law enforcement, make the warrant and probable-cause\n\nrequirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.\n\nSch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).\n\n There is no definitive list of “special needs.” The Supreme Court has found a\n\nspecial need in a principal’s in-school search of a student’s purse for drugs; a public\n\n\n\n\n 13\n “It is . . . well settled that one of the specifically established exceptions to the\nrequirements of both a warrant and probable cause is a search that is conducted\npursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).\n 14\n “The exigent circumstances exception allows a warrantless search when an\nemergency leaves police insufficient time to seek a warrant. It permits, for instance,\nthe warrantless entry of private property when there is a need to provide urgent aid to\nthose inside, when police are in hot pursuit of a fleeing suspect, and when police fear\nthe imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,\n2173 (2016) (citation omitted). “Warrants are generally required to search a person’s\nhome or his person unless the exigencies of the situation make the needs of law\nenforcement so compelling that the warrantless search is objectively reasonable under\nthe Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations\nomitted) (brackets omitted).\n 16\n\nemployer’s search of an employee’s desk; a probation officer’s search of a\n\nprobationer’s home; a Federal Railroad Administration policy requiring employees to\n\ntake blood and urine tests following a major rail accident; drug testing of United States\n\nCustoms employees applying for drug interdiction jobs; schools’ random drug testing\n\nof athletes; and drug testing of public school students partaking in extracurricular\n\nactivities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized\n\nthe special needs doctrine as follows:\n\n (1) an exercise of governmental authority distinct from that\n of mere law enforcement—such as the authority as\n employer, the in loco parentis authority of school officials,\n or the post-incarceration authority of probation officers;\n (2) lack of individualized suspicion of wrongdoing, and\n concomitant lack of individualized stigma based on such\n suspicion; and (3) an interest in preventing future harm,\n generally involving the health or safety of the person being\n searched or of other persons directly touched by that\n person’s conduct, rather than of deterrence or punishment\n for past wrongdoing.\n\nId. at 1213-14.\n\n State actors can invoke the special needs doctrine only when the purpose of the\n\nsearch is sufficiently “divorced from the State’s general interest in law enforcement.”\n\nFerguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state\n\nobstetrics ward not justified under special needs because they were coordinated with\n\nthe police).\n\n\n\n\n 17\n\n When it applies, the special needs doctrine employs a more relaxed test than the\n\none traditionally used under the Fourth Amendment to assess the reasonableness of a\n\nsearch. To evaluate special needs reasonableness, we have (1) required that (a) the\n\nsearch be “justified at its inception” and (b) reasonable in its “scope” given the\n\n“circumstances”;15 or we have (2) balanced government and private interests.16\n\n 1) Child abuse context: Supreme Court and Tenth Circuit\n\n The Supreme Court has not addressed the special needs doctrine in the context\n\nof social workers’ inspection of children upon suspicion of child abuse. It has rejected\n\nthe special needs doctrine to justify a search, but in a different child abuse context. In\n\nFerguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s\n\ntesting of pregnant mothers in its maternity ward for cocaine and reporting results to\n\nauthorities under a theory that a positive result constituted “child abuse” did not qualify\n\nfor the special needs exception to the Fourth Amendment warrant requirement because\n\nof the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.\n\n\n\n\n 15\n See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884\n(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in\nturn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).\n 16\n See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and\nprobable cause requirement with a balancing test that looks to the nature of the privacy\ninterest, the character of the intrusion, and the nature and immediacy of the\ngovernment’s interest.” 336 F.3d at 1213.\n\n 18\n\n The Tenth Circuit has not previously addressed whether the special needs\n\ndoctrine applies to a social worker’s search of a student at school to detect evidence of\n\nsuspected abuse. We applied it in a child abuse context when a student at a public\n\nschool needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).\n\nThat case concerned a seizure, however, not a search, because it involved the\n\nquestioning of a minor suspected of abusing another child, not an inspection of the\n\nallegedly abused child. See id. In another case, we held that special needs did not\n\npermit a social worker, who suspected abuse, to enter a home and remove a child.\n\nRoska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that\n\neven if a police officer is performing the functions of a social worker in examining a\n\nyoung child’s private areas upon suspicion of abuse, the police officer nevertheless\n\nmust abide by the Fourth Amendment’s warrant requirement.17\n\n In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked\n\nthe special needs doctrine when it subjected an entire class of children to intrusive\n\nphysical examinations (including genital examinations and blood tests) without\n\nparental notice or consent, stating this was “done in order to comply with federal\n\nregulations [and] is an effective means of identifying physical and developmental\n\n\n\n\n 17\n We decided Franz before the Supreme Court held in Ferguson that social\nworkers are not categorically exempt from the warrant requirement when performing a\nsearch. Ferguson, 532 U.S. at 76 & n.9.\n\n 19\n\nimpediments in children prior to them starting school, a goal of Head Start.” Id. at\n\n1214. We did not decide whether the doctrine applied, holding instead that even if it\n\ndid, the searches were unconstitutional under the balancing test. The extreme privacy\n\ndeprivations involved in the invasive testing outweighed the ostensible special need of\n\ndoing a health assessment. Id. at 1214-15.\n\n We therefore have not established whether the special needs doctrine permits a\n\nsocial worker to search a child, such as by removing clothing and/or taking\n\nphotographs, to investigate a report of suspected abuse.\n\n 2) Child abuse context: other circuits and special needs\n\n Other circuits have split on whether a social worker’s examination of a child\n\nupon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.\n\n The Seventh Circuit held that a social worker’s visual inspection of a child upon\n\nsuspicion of child abuse falls under the special needs doctrine and thus can proceed\n\nwithout a warrant, as long as the search passes the special needs balancing test and is\n\nfundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In\n\nWildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held\n\nsocial workers’ warrantless examinations of potentially abused children in their foster\n\n\n\n\n 18\n The Seventh Circuit later limited this holding to searches on public as opposed\nto private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).\n 20\n\nhomes should be evaluated under a special needs balancing and general\n\n“reasonableness” analysis, as opposed to probable cause.\n\n Four other circuits, however, have held that social worker examinations of\n\nchildren based on abuse suspicions are not candidates for special needs analysis. The\n\nThird Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d\n\n1087 (3d Cir. 1989), held that social workers’ search of a child in his home required\n\neither a search warrant, consent, or exigent circumstances. The Ninth Circuit, in\n\nCalabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing\n\na search on a child to investigate possible abuse must have a warrant, consent, or\n\nexigent circumstances, and may not rely on the special needs doctrine (especially in\n\nthis case where a police officer was also present with the social worker). The Second\n\nCircuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial\n\nauthorization was required for social workers to examine a student upon suspicion of\n\nabuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory\n\nServs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body\n\ncavity search for suspected abuse needed a court order based on probable cause or\n\nexigent circumstances, and that they could not rely on the special needs doctrine. Roe\n\nemphasized, under Ferguson, the overlap of social workers with law enforcement\n\ninvestigating abuse militates against the applicability of the special needs doctrine. Id.\n\nat 406.\n\n\n 21\n\n3. Analysis\n\n We limit our qualified immunity analysis, as the district court did, to whether\n\nthe Does can satisfy the second prong of qualified immunity—that is, whether they can\n\nshow that any Fourth Amendment violation was based on clearly established law.\n\n Defendants do not contest that Ms. Woodard conducted a search for Fourth\n\nAmendment purposes.19 For the search to have been valid under the Fourth Amendment,\n\nMs. Woodard needed a warrant or one of the exceptions to the warrant requirement to\n\napply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.\n\nWoodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the\n\ncircumstances were not exigent, the search would have been valid without a warrant only if\n\nthe special needs doctrine applied.\n\n The Does have not cited a Supreme Court or Tenth Circuit decision specifically\n\nholding that a social worker must obtain a warrant to search a child at school for evidence\n\nof reported abuse. Instead, they argue that (a) only a warrant could have justified the\n\nsearch of I.B. because the special needs doctrine did not apply, or (b) even if the special\n\nneeds doctrine did apply, Defendants’ conduct violated the Fourth Amendment\n\n\n\n\n 19\n Although the Defendants do not expressly and directly concede that I.B. was\nsubject to a search, they devote their brief to evaluating a “search” of this type. See,\ne.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection\nand photographing of a child, under the circumstances alleged, as an administrative\nsearch subject to the reasonableness balancing test . . . .”).\n\n 22\n\nreasonableness standards for a special needs search. The Does have not met their burden of\n\nshowing clearly established law on either ground.\n\n a. No showing of clearly established Fourth Amendment law on whether social\n worker searches examining for abuse qualified for the special needs\n exception\n\n In this section, we examine the Does’ attempts to show that Ms. Woodard’s\n\nsearch violated clearly established Fourth Amendment law in December 2014 because\n\nshe lacked a warrant and the special needs exception did not apply. They have failed to\n\ndo so. Based on our previous review of the case law and discussion below, we\n\nconclude that neither the Supreme Court nor this court had previously decided that the\n\nspecial needs exception does not apply to warrantless social worker searches for\n\nsuspected child abuse. Nor was the weight of authority from other circuits clearly\n\nestablished. We therefore hold that, when the search occurred in this case, there was\n\nno clearly established law that a warrant was required.\n\n i. Supreme Court and Tenth Circuit law\n\n The Does argue that Supreme Court and Tenth Circuit precedent on special\n\nneeds existing when Ms. Woodard searched I.B. may be read to find a Fourth\n\nAmendment violation under clearly-established law. They cite (1) Franz, which held\n\nthat a police officer could not search a young child without a warrant or consent upon\n\nsuspicion of abuse; (2) Dubbs, which held that examinations of children at school\n\nneeded a warrant, consent, or exigent circumstances, and that there is no general social\n\n\n 23\n\nworker exception to the Fourth Amendment; (3) Roska, for the proposition that the\n\nspecial needs doctrine can be used only when obtaining a warrant is impracticable; and\n\n(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement\n\nrenders the special need exception inapplicable,” Aplt. Br. at 35.20\n\n The Does contend that these cases put the DHS caseworkers and their\n\nsupervisors on notice that Ms. Woodard could not undress and photograph I.B. without\n\na warrant, consent, or exigent circumstances. We disagree that these cases would have\n\nput a reasonable social worker on notice that her conduct violated the Fourth\n\nAmendment.\n\n First, Franz involved a police officer who searched a young child upon\n\nsuspicion of abuse, and held that the officer needed a warrant, consent, or exigent\n\ncircumstances to do so. In other words, the special needs doctrine did not apply. But a\n\npolice search is not a social worker search, and Franz does not address the latter.\n\n Second, Dubbs does not clearly establish Fourth Amendment law for a social\n\nworker’s search for child abuse in this case. In Dubbs, the school indiscriminately\n\ntested the entire class and performed much more invasive examinations. The defendant\n\nschool officials argued that the special need was for generalized health assessment to\n\n\n\n\n 20\n In their reply brief, the Does drop their reference to Ferguson in their clearly-\nestablished argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.\nat 9.\n\n 24\n\ncomply with federal regulations, not to search for child abuse. Accordingly, Dubbs did\n\nnot address the issue presented here—whether Ms. Woodard’s search of I.B. for child\n\nabuse satisfied the Fourth Amendment as a special needs search.\n\n Third, Roska also does not provide clearly established law. In Roska, we said\n\nthat a special need must “make the warrant and probable-cause requirement\n\nimpracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent\n\ncircumstances, no special need “renders the warrant requirement impracticable when\n\nsocial workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon\n\nsocial workers searching and photographing a child at school for suspected child abuse.\n\n Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of\n\ndrug tests taken in a maternity ward to police could not qualify for the special needs\n\nexception because their conduct was too intertwined with law enforcement. Ferguson\n\nsays nothing about social workers searching and photographing a child at school\n\nbecause of suspected child abuse or whether such conduct is unacceptably entangled\n\nwith law enforcement to qualify for special needs analysis. Nor have we, in contrast to\n\nthe Fifth Circuit in Roe, ever held that a social worker search for suspected abuse\n\ncontext was too closely tied to law enforcement to qualify for the special needs\n\ndoctrine.\n\n Taken together, these four cases do not constitute clearly established law that the\n\nDoes suffered a Fourth Amendment violation because no warrant was obtained. They\n\n\n 25\n\nare not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at\n\n552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly\n\nestablished law should not be defined at a high level of generality . . . . [C]learly\n\nestablished law must be particularized to the facts of the case.”) (quotations and\n\ncitations omitted).\n\n ii. Other circuits\n\n Four circuits have rejected the special needs doctrine as an exception to the\n\n warrant requirement and two have approved it for searches like the one here. This\n\n does not amount to a “clearly established weight of authority from other courts,”\n\n Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or\n\n constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\n\n (2011). Also, the circuits rejecting the special needs doctrine often did so based on\n\n facts distinguishable from this case—for instance, the search occurred at the child’s\n\n home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking\n\n the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.\n\n b. No showing of clearly established law on minimal Fourth Amendment\n reasonableness standards\n\n Despite the lack of law clearly showing the special needs doctrine did not apply\n\n to the search here, the Does could still attempt to show that Ms. Woodard’s search\n\n failed to meet clearly established minimal Fourth Amendment reasonableness\n\n standards applicable to special needs searches.\n 26\n\n When the Supreme Court first described the “special needs” exception in New\n\n Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy\n\n minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):\n\n the legality of a search of a student should depend simply\n on the reasonableness, under all the circumstances, of the\n search. Determining the reasonableness of any search\n involves a twofold inquiry: first, one must consider\n “whether the . . . action was justified at its inception”;\n second, one must determine whether the search as actually\n conducted “was reasonably related in scope to the\n circumstances which justified the interference in the first\n place.”\n\nT.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392\n\nU.S. at 20). As noted above, we also have measured reasonableness by balancing\n\ngovernment and private interests. See Dubbs, 336 F.3d at 1214.21\n\n i. Appellants’ failure to show clearly established law\n\n\n\n 21\n Although the Terry reasonableness determination and the interest-balancing\napproach are not identical, courts have recognized overlap in these tests. See, e.g.,\nJones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness\nunder Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the\nproposition that courts may “evaluate the search or seizure under traditional standards\nof reasonableness by assessing, on the one hand, the degree to which it intrudes upon\nan individual’s privacy and, on the other, the degree to which it is needed for the\npromotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d\n902-03 (adopting approach that blends Terry analysis with interest-balancing test:\n“The test of reasonableness under the Fourth Amendment is not capable of precise\ndefinition or mechanical application. In each case it requires a balancing of the need\nfor the particular search against the invasion of personal rights that the search entails.\nCourts must consider the scope of the particular intrusion, the manner in which it is\nconducted, the justification for initiating it, and the place in which it is conducted.”)\n(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).\n 27\n\n The Appellants offer almost no analysis to support their contention that the\n\nsearch violated clearly established minimal Fourth Amendment standards. Their\n\nopening brief devotes less than two pages to this issue. Although it cites several cases,\n\nincluding Dubbs, it does not provide any case analysis or otherwise begin to show how\n\nAppellants can meet the clearly established law burden to overcome qualified\n\nimmunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments\n\nand case cites about warrant requirements and the special needs exception with\n\narguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical\n\ncase summaries, however, the Reply lacks case analysis or explanation as to why these\n\ncases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment\n\nprotections. The Reply complains that the Appellees have failed to provide case law to\n\nsupport the search and then states it is “not impermissibly shift[ing] the burden” to the\n\nAppellees. Id. at 10. But that is exactly what their argument would do. The\n\nAppellants’ failure to meet their burden should resolve the issue. The dissent attempts\n\nto do their work for them, but it does not show the law was clearly established, either.\n\n\n\n\n 28\n\n ii. The dissent\n\n We have shown that in December 2014 the law did not clearly establish that a\n\nwarrant was required to justify Ms. Woodard’s search. This is so because the law did not\n\nclearly establish that Ms. Woodard could not rely on the special needs exception to justify\n\nthe search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by\n\nexamining whether it was clearly established that an exception did not apply to the Fourth\n\nAmendment’s warrant requirement).\n\n Despite appearing to agree with the foregoing, the dissent contends the search\n\nviolated clearly established Fourth Amendment requirements even assuming the special\n\nneeds doctrine applied. We disagree for two related reasons—(1) the cases it relies on are\n\nfactually distinguishable from this case, and (2) Supreme Court precedent calls for factually\n\nsimilar cases to constitute clearly established law. We respond to the dissent to address\n\nwhether it was clearly established that the special needs doctrine’s reasonableness\n\nstandards were not met in this case.\n\n First, the Does must “identify a case where an officer acting under similar\n\ncircumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at\n\n552. The dissent relies on two cases that are materially different from this case. In Dubbs,\n\nthe purpose of the search was to identify physical and developmental impediments in all\n\n\n\n\n 29\n\nchildren to comply with federal Head Start program requirements.22 The state actors did\n\nnot attempt to justify the search in Dubbs based on the special need of detecting child\n\nabuse—just the opposite: “The nurses who administered the examinations, Strayhorn and\n\nBaker, testified that the exams were in conformity with standards for well-child\n\nexaminations and were not performed for the purpose of detecting child abuse.” 336 F.3d\n\nat 1200. In Safford, the purpose of the search was to prevent a student from distributing\n\nmedications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was\n\nto check for reported child abuse. Although, as the dissent notes, all three searches served\n\n“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s\n\nsearch was different in kind from the others—to protect a child from reported abuse.\n\n In Dubbs, the nature of the search was an intrusive examination of the genitals of all\n\nchildren in the class, “separated only by partitions, so that it was possible for other children\n\nto see or hear portions of the examinations performed on their classmates.” Dubbs, 336\n\nF.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses\n\ninspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital\n\narea when a visual inspection was not adequate. Similarly, the nurses would palpate the\n\n\n 22\n The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]\nAmendment is . . . on the security of the person, not the identity of the searcher or the\npurpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this\nquotation from Dubbs addressed whether the physical examinations in that case were\n“searches” under the Fourth Amendment in the first place, not whether a given search\nwas reasonable under the Fourth Amendment.\n\n 30\n\nboys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the\n\nstate justification weaker in Dubbs than in this case, the search was far more invasive, far\n\nless private, and applied indiscriminately to the entire class. Dubbs held the search\n\nunconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to\n\nbalance in this case are plainly different.\n\n In Safford, school officers searched a student suspected of distributing medications\n\nto other students. 557 U.S. at 368. The search, which involved removal of the student’s\n\nclothing and pulling aside her undergarments to expose private areas, id. at 369, was\n\ncomparable to this case, but the circumstances underlying the search were different. The\n\nstudent searched in Safford was suspected of harming others through drug distribution. Id.\n\nat 377. The child in this case was suspected of suffering abuse from a third party. The\n\nSafford Court asked whether the search was “‘reasonably related in scope to the\n\ncircumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at\n\n341), and held that it was not, given that the school lacked facts that the alleged\n\nmedications were dangerous or that the student hid them “in her underwear.” Id. at 376.\n\nNeither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was\n\nnot reasonably related in scope to the circumstances—suspected child abuse. The dissent\n\ncorrectly states that the searches in all three cases involved the children’s “intimate areas,”\n\nbut the purpose and circumstances of the search for suspected child abuse in this case\n\n\n\n\n 31\n\ndiffered too much for Dubbs and Safford to have guided Ms. Woodard with clearly\n\nestablished law.\n\n Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.\n\nWoodard’s position would, based on these cases, know that her search of I.B. violated the\n\nrequirements for the special needs exception or the basic protections of the Fourth\n\nAmendment. “The precedent must be clear enough that every reasonable official would\n\ninterpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at\n\n590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is\n\nsufficiently clear that every reasonable official would have understood that what he is\n\ndoing violates that right.”) (quotations omitted). As we have shown, the facts in this case\n\ndiffer markedly from the facts in the cases the dissent attempts to use for clearly established\n\nlaw.\n\n Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s\n\nrepeated instruction that “clearly established law should not be defined at a high level of\n\ngenerality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552\n\n(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is\n\n“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The\n\ndissent contends that the clearly established “particular rule” in December 2014, Dissent\n\nOp. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its\n\ninception and reasonably related in scope to the circumstances that justified the interference\n\n\n 32\n\nin the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment\n\nstandard applies to all searches. It is not particularized to the facts of this case. The dissent\n\ntherefore attempts “to define clearly established law at a high degree of generality”\n\ncontrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152\n\n(2018) (quotations omitted).23\n\n Even if Dubbs and Safford offer plausible authority to support a special needs\n\nFourth Amendment violation here, whether they supply clearly established law is at most\n\ndebatable, and to be clearly established, “‘existing precedent must have placed the statutory\n\nor constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,\n\n136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”\n\nWesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties\n\n\n\n\n 23\n The Supreme Court has repeatedly emphasized for more than 35 years that\ngeneralized propositions of law are insufficient for clearly established law purposes.\nSee Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied\n[qualified immunity] principles” when its “discussion of qualified immunity consisted of\nlittle more than an assertion that a general right Anderson was alleged to have violated—\nthe right to be free from warrantless searches of one’s home unless the searching officers\nhave probable cause and there are exigent circumstances—was clearly established.”);\nBrosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was\nmistaken in using “the general proposition that use of force is contrary to the Fourth\nAmendment if it is excessive under objective standards of reasonableness” for clearly\nestablished purposes because the proposition is “cast a high level of generality” (quotations\nomitted)).\n\n 33\n\nand the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309\n\n(brackets and quotations omitted).24\n\n To the extent the Does attempt to argue that this is the rare alleged violation of\n\nminimal Fourth Amendment standards that is so “obvious” that a factually similar case\n\nis unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6\n\n(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case\n\nwhere a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations\n\nomitted).\n\n\n\n\n 24\n The dissent also contends that Safford clearly establishes that “the\ncategorically extreme intrusiveness” of a body search “requires some justification in\nsuspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting\nSafford, 575 U.S. at 376). But the Does and the dissent do not show that under the\ncircumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would\nhave known her conduct fell short. As alleged in the First Amended Complaint, the\nreport that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise\nabout the size of a nickel on her neck, a small red mark on her lower back, two small cuts\non her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report\nof child abuse, a reasonable social worker could understand these to be “suspected facts,”\nnot “general background possibilities.” To the extent Appellants pled, as the dissent\nsuggests, that “Ms. Woodard was never aware of facts that could have justified such an\nintrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both\nconclusory and contradicted by other allegations in the First Amended Complaint.\n 25\n See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even\nassuming that our previous cases were not sufficiently particularized to satisfy the\nordinary clearly established law standard, ours is ‘the rare obvious case, where the\nunlawfulness of the [state actor’s] conduct is sufficiently clear even though existing\nprecedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);\nsee also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.\n\n 34\n\n * * * \n\n In summary, the Does have not shown that Ms. Woodard’s search violated clearly\n\nestablished Fourth Amendment law. We affirm the district court’s conclusion that the\n\nDefendants, including supervisors, were entitled to qualified immunity and that the Fourth\n\nAmendment claims should be dismissed. 26\n\n B. Fourteenth Amendment Claims\n\n This section addresses the two substantive due process claims for violation of\n\nparental rights and interference with familial association. We describe our standard of\n\nreview and provide legal background on the facts required to allege these types of\n\nclaims and how those facts must “shock the conscience.” We then examine whether\n\nthe Does’ complaint states a plausible claim under these standards and, like the district\n\ncourt, find it lacking.\n\n1. Standard of Review\n\n We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for\n\nfailure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.\n\n\n\n\n 26\n In a different circuit with more developed law, the analysis of the “clearly\nestablished” prong of qualified immunity might have been different. As noted above,\nwe do not address the first step of qualified immunity analysis—whether the\nDefendants violated the Fourth Amendment.\n We note that El Paso County DHS later instituted a policy under which social\nworkers must ask parental permission or obtain a court order before searching and\nphotographing children for suspected abuse. Aplt. App., Vol. II at 7.\n\n 35\n\n2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead\n\nsufficient factual allegations “to state a claim to relief that is plausible on its face.”\n\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\n\n“when the plaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,\n\n556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the\n\ncomplaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594\n\nF.3d 723, 727 (10th Cir. 2010).\n\n Under our de novo review, “[a]ll well-pleaded facts, as distinguished from\n\nconclusory allegations, must be taken as true,” and we must liberally construe the\n\npleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.\n\nMcDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).\n\n2. Legal Background\n\n The following describes the parental right to direct medical care and the right of\n\nfamilial association. To state a claim for either, the plaintiff must show that the alleged\n\nconduct “shocks the conscience.”\n\n a. Substantive due process claims—“shocks the conscience”\n\n In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted\n\nthat the Supreme Court recognizes two types of substantive due process claims: (1)\n\nclaims that the government has infringed a “fundamental” right, see, e.g., Washington\n\n\n 36\n\nv. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted\n\nsuicide); and (2) claims that government action deprived a person of life, liberty, or\n\nproperty in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of\n\nSacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).\n\nHalley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the\n\nplaintiff challenges legislative action, and the shocks-the-conscience approach when\n\nthe plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due\n\nprocess claims—violation of the parental right to direct medical care and to familial\n\nassociation—challenge executive action, id. at 1154, and therefore are “shocks the\n\nconscience” claims.\n\n Executive action that shocks the conscience requires much more than\n\nnegligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions\n\nof a reckless official or one bent on injuring a person do not necessarily shock the\n\nconscience. Id. “Conduct that shocks the judicial conscience” is “deliberate\n\ngovernment action that is arbitrary and unrestrained by the established principles of\n\nprivate right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th\n\nCir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience\n\nshocking, a plaintiff must prove a government actor arbitrarily abused his authority or\n\nemployed it as an instrument of oppression.” Id. (brackets omitted) (quotations\n\nomitted). “The behavior complained of must be egregious and outrageous.” Id.; see\n\n\n 37\n\nBreithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because\n\nsuch conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did\n\nnot comport with traditional ideas of fair play and decency.”) The Supreme Court\n\nfound conscience-shocking behavior in a case involving a sheriff’s application of\n\nstomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).\n\nThis Circuit recently found a social worker’s various actions that led to physical and\n\nsexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213\n\n(10th Cir. 2017).\n\n b. Parental right to direct child’s medical care\n\n The Fourteenth Amendment protects the right of parents to make decisions\n\n“concerning the care, custody, and control of their children.” Troxel v. Granville, 530\n\nU.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions\n\nregarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,\n\n1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.\n\n“[W]hen a child’s life or health is endangered by her parents’ decisions, in some\n\ncircumstances a state may intervene without violating the parents’ constitutional\n\nrights.” Id. at 1198. As noted above, a violation of this right must be conscience\n\nshocking.\n\n\n\n\n 38\n\n c. Right of familial association\n\n The government’s “forced separation of parent from child, even for a short time,\n\nrepresents a serious impingement” on a parent’s substantive due process right to\n\nfamilial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial\n\nassociation claim must be based on allegations of abusive government authority. See\n\nGriffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at\n\n1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent\n\nmust allege “intent to interfere” with this right—that is, the state actor must have\n\ndirected conduct at the familial relationship “with knowledge that the statements or\n\nconduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d\n\n1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed\n\nagainst the state’s interest in protecting a child’s health and safety. See Youngberg v.\n\nRomeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522\n\nF.3d at 1092. In conducting this balancing, courts consider the severity of the\n\ninfringement on the protected relationship, the need for defendants’ conduct, and\n\npossible alternative courses of action. See Griffin, 983 F.2d at 1548.27\n\n\n 27\n In Halley, we explained that, the two-part test “simply describes the kind of\nbehavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,\nit shocks the conscience when: (1) the officials intended to deprive the plaintiff of a\nprotected relationship with a family member, and (2) the officials’ intrusion into the\nrelationship was not warranted by state interests in the health and safety of the family\nmember. Together, the facts alleged by the plaintiff on these points must meet the\nshocks-the-conscience standard.” Id. (footnote and citation omitted).\n 39\n\n To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to\n\ndeprive her of her protected relationship with her daughter, see Estate of B.I.C. v.\n\nGillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly\n\nburdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected\n\nan “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768\n\nF.2d 1186, 1190 (10th Cir. 1985).\n\n3. Analysis\n\n a. Right to direct medical care\n\n Ms. Doe’s allegations on the right to control medical treatment do not “shock the\n\nconscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)\n\nbehavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”\n\n“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of\n\nfair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n The allegations did not allege this level of severity. They did not allege\n\ninterference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.\n\nWoodard’s performing an initial examination to determine whether I.B. had been\n\nabused. To the extent this was a “medical decision,” it hardly rose to the level of what\n\nprecedent requires for “shocks the conscience.”\n\n\n\n\n 40\n\n b. Familial association\n\n Ms. Doe’s familial association allegations similarly did not “shock the\n\nconscience” under Halley. We consider whether the complaint alleged (1) a\n\ndeprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”\n\nthat relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”\n\n“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”\n\nMoore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n Again, the complaint did not allege this level of severity. The Does argue in\n\ntheir brief that their complaint should be read to allege that Ms. Woodard intended to\n\nseparate I.B. from her mother to conduct an examination without the mother present.\n\nBut even if the complaint could be read this way, it still needed to allege an intended\n\ndeprivation or suspension of the parent-child relationship that shocks the conscience.\n\nSee, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint\n\nsufficiently stated claim for § 1983 familial association claim where it was alleged\n\nDefendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to\n\nprevent parents from taking the child home from the hospital). Here, the complaint\n\nlacked allegations that Ms. Woodard’s motivation was anything other than to\n\ninvestigate potential child abuse.\n\n Moreover, the search happened during school hours when I.B.’s mother would\n\nnot otherwise have been with her. To the extent I.B. was separated from her mother\n\n\n 41\n\nduring a time when she would have wanted her mother to be present, this is a far cry\n\nfrom the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at\n\n1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter\n\nallegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at\n\n1238-39, 1246 (familial association Fourteenth Amendment claim stated where child\n\nwas removed from home and placed under protective care for a week).\n\n * * *\n\n In summary, the Does have failed to state a Fourteenth Amendment substantive due\n\nprocess claim for violation of parental rights or interference with familial association\n\nagainst the Defendants.\n\n III. CONCLUSION\n\n We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment\n\nclaims under qualified immunity, and (2) dismissal of the Does’ Fourteenth\n\nAmendment claims for failure to state a claim.28\n\n\n\n\n 28\n We also affirm the district court’s denial of the Does’ motion for leave to\namend their complaint. Amendment would have been futile given this opinion’s\nanalysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s\nInv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of\nCivil Procedure] 15(a) provides that leave to amend shall be given freely, the district\ncourt may deny leave to amend where amendment would be futile.”).\n\n 42\n\nNo. 18-1066, Doe v. Woodard\n[END_CASE]", "role": "user" } ]
4,579,289	UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant.	United States v. Almanza-Vigil	2019-01-07	17-2007	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Phillips, Kelly, Murphy", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 7, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2007\n\n OSCAR ALMANZA-VIGIL,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:15-CR-02605-RB-1)\n _________________________________\n\nJames N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,\nNew Mexico, for Appellant.\n\nMarisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States\nAttorney, with her on the brief), Office of the United States Attorney, Las Cruces, New\nMexico, for Appellee.\n _________________________________\n\nBefore PHILLIPS, KELLY, and MURPHY, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n The Immigration and Naturalization Act (INA) defines “aggravated felony” to\n\ninclude “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),\n\nmaking removal from this country “a virtual certainty” for a noncitizen convicted of\n\fsuch a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes\n\nserious consequences on a noncitizen convicted of an aggravated felony: (1) he\n\nbecomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain\n\ndiscretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary\n\ndeparture, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,\n\nwith no immigration judge present, id. § 1228(a)(1).\n\n That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded\n\nguilty in Colorado state court to “selling or distributing” methamphetamine in\n\nviolation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he\n\nreceived a four-year prison sentence. In 2009, when the state paroled him,\n\nImmigration and Customs Enforcement (ICE) initiated expedited removal\n\nproceedings against him, declaring that he had committed an aggravated felony. With\n\nthat designation, he had no right to an administrative hearing before an immigration\n\njudge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings\n\nfor deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.\n\n§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put\n\naggravated felons in expedited removal proceedings without a hearing before an\n\nimmigration judge). Within the week, the Department of Homeland Security had\n\nissued a final administrative removal order, and ICE agents had sent Almanza-Vigil\n\nback across the border to Mexico. Six years later, border-patrol agents found\n\nAlmanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,\n\nAlmanza-Vigil moved to dismiss the indictment by collaterally attacking his previous\n\n 2\n\fremoval order and arguing, for the first time, that he never committed an aggravated\n\nfelony.\n\n Now reviewing the district court’s judgment convicting Almanza-Vigil for\n\nillegal reentry, we must return to 2009, when he left state prison, and ask how he\n\ncould have avoided removal. To prevail here, Almanza-Vigil must show not only that\n\nhis Colorado felony was not an aggravated felony, but that misclassifying it as one\n\nprejudiced him. To show the required prejudice, he must show that the\n\nmisclassification rendered the entry of the 2009 removal order fundamentally unfair.\n\nAbsent that, his appeal fails. See 8 U.S.C. § 1326(d).\n\n For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado\n\nfelony does not fit the INA’s definition of an aggravated felony. But we also\n\nconclude that he failed to demonstrate a reasonable likelihood of avoiding removal\n\nbut for the erroneous classification of his conviction. The INA therefore parries a\n\ncollateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,\n\nexercising our jurisdiction to review the district court’s final orders, 28 U.S.C.\n\n§ 1291, we affirm that court’s judgment of conviction.1\n\n\n 1\n The INA curbs our jurisdiction to review the removal order itself. Though the\nAct grants federal appellate courts exclusive authority to review final orders of\nremoval, it also carves from that authority our jurisdiction to review “any final order\nof removal entered against an alien who is removable by reason of having committed\na criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.\n§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,\nwe retain the “authority to determine whether the factual conditions for the bar are\npresent.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,\nnotwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove\n\n 3\n\f BACKGROUND\n\n Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,\n\neight-year-old Almanza-Vigil and his family trekked across the Mexico–United\n\nStates border, without documents and without government inspection, and settled in\n\nColorado. Almanza-Vigil never acquired legal immigration status, but he grew up in\n\nthis country, learning English, graduating from high school, finding work at a dairy\n\nfarm, and eventually fathering a son.\n\n In 2006, when Almanza-Vigil was twenty-one years old, the district attorney\n\nin Fort Morgan, Colorado, charged him with six violations of the state’s controlled-\n\nsubstances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,\n\nidentical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,\n\nAlmanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed\n\nMETHAMPHETAMINE, a schedule II controlled substance, in violation of section\n\n18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3\n\n(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing\n\nmethamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.\n\n At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent\n\npart:\n\n\n\n“criminal aliens”—or any other statutory (or non-statutory) limit on our\njurisdiction—the INA preserves our jurisdiction to review constitutional and legal\nissues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-\nreview scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-\nVigil committed an aggravated felony.\n\n 4\n\f (1)(a) Except as authorized by [other provisions of state law], it is\n unlawful for any person knowingly to manufacture, dispense, sell,\n distribute, possess, or to possess with intent to manufacture, dispense,\n sell, or distribute a controlled substance; or induce, attempt to induce, or\n conspire with one or more other persons, to manufacture, dispense, sell,\n distribute, possess, or possess with intent to manufacture, dispense, sell,\n or distribute a controlled substance; or possess one or more chemicals or\n supplies or equipment with intent to manufacture a controlled substance.\n\n ....\n\n (2)(a) Except as is otherwise provided in subsection (2.3) of this section\n for possession offenses not including possession with the intent to\n distribute involving one gram or less of any material, compound, mixture,\n or preparation that contains any quantity of a schedule I through IV\n controlled substance, . . . any person who violates any of the provisions\n of subsection (1) of this section:\n\n (I) In the case of a controlled substance listed in schedule I or II of part 2\n of this article, commits:\n\n (A) A class 3 felony; except that a person commits a class 4 felony if such\n violation is based on the possession of a controlled substance listed in\n schedule II unless otherwise provided in paragraph (a) of subsection (3)\n of this section[.]\n\n ....\n\n (2.3)(a) Any person who commits the offense of possession in violation\n of the provisions of subsection (1) of this section by possessing any\n material, compound, mixture, or preparation, weighing one gram or less\n that contains any quantity of a controlled substance listed in schedules I\n through IV of part 2 of this article commits:\n\n (I) A class 6 felony[.]\n\nColo. Rev. Stat. § 18-18-405 (2006).2\n\n\n\n 2\n Since 2006, the Colorado legislature has revised § 18-18-405 several times.\nSee, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.\nLaws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of\nproscriptions).\n\n 5\n\f In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or\n\ndistributing” methamphetamine. In exchange, the state dismissed the remaining five\n\ncharges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.\n\nThe order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),\n\n(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,\n\n5, and 6—two more distribution charges (also class 3 felonies) and three possession\n\ncharges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.\n\nvol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.\n\n Two years passed. Then, prison officials informed Almanza-Vigil (whose\n\nparole was approaching) that the federal government had issued an immigration hold.\n\n“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at\n\n154:25. And from that point on, he claims, he “never thought” that he would be able\n\nto challenge his removal. R. vol. 1 at 155:1.\n\n In April 2009, the state released Almanza-Vigil to ICE agents, who detained\n\nhim pending his removal. The Department of Homeland Security had decided that\n\nAlmanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of\n\nan “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)\n\nand, because he lacked permanent-resident status, subjecting him to expedited\n\n\n\n\n 6\n\fremoval proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without\n\na hearing before an immigration judge.3\n\n The record on appeal contains the two forms that the government claims to\n\nhave given Almanza-Vigil during these proceedings: a two-page Notice of Intent\n\n(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the\n\ndistrict court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.\n\n Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal\n\nOrder.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar\n\nALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The\n\nNotice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated\n\nfelony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and\n\n\n\n 3\n In expedited removal proceedings, a noncitizen with an aggravated-felony\nconviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and\nineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-\nremoval statute and its accompanying regulations protect noncitizens’ rights to\nprocedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the\ngovernment to wait fourteen days after issuing the final removal order and before\nexecuting it to allow the noncitizen “an opportunity to apply for judicial review” of\nthe order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the\ngovernment also must give the noncitizen reasonable notice of the charges against\nhim, as well as an opportunity to rebut them, and allow the noncitizen “the privilege\nof being represented (at no expense to the government)” by counsel. Id.\n§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen\nmust be served with “Form I-851, Notice of Intent to Issue a Final Administrative\nDeportation Order,” which must inform the noncitizen of his rights to representation\nand to judicial review, among other rights, and provide him with a list of free legal\nservices. 8 C.F.R. § 238.1(b)(1)–(2).\n\n 7\n\fResponsibilities,” including (1) that “you may contact legal counsel from the list of\n\navailable services provided to you” (a list that the government didn’t provide) and\n\n(2) that if you want to exercise your rights to rebut the charge or to seek judicial\n\nreview, the government must receive your written response within ten days. Id. But\n\nthe Notice lacks a designated space for Almanza-Vigil’s signature. And while the\n\nNotice’s first page claims to be “Form I-851,” the next page identifies itself as “Form\n\nI-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above\n\nthis puzzling footer, the Continuation Page contains a typewritten paragraph alleging,\n\n“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute\n\nSch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for\n\nwhich the term of imprisonment was 4 years.” Id.\n\n Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed\n\nstatement: “I served this Notice of Intent. I have determined that the person served\n\nwith this document is the individual named on the other side of the form.” Id. at 8.\n\n(The contents of the “other side” remain a mystery: the district court deduced only\n\nthat “the other side” was probably not the Certificate, based on the government’s\n\nintroduction of the Notice and the Certificate as separate exhibits.) Beneath two\n\nchecked boxes—one admitting “the allegations and charge in this Notice of Intent,”\n\nanother waiving “the right to remain in the United States . . . to apply for judicial\n\nreview”—the Certificate has three lines: on the first is a hand-drawn “x” and\n\nAlmanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on\n\nthe third is the date, April 6, 2009. Id.\n\n 8\n\f In the government’s view, Almanza-Vigil knowingly waived his right to\n\ncontest his removal by signing the Certificate. So, on April 6 (the same day that he\n\nsigned it), the Department of Homeland Security issued a final administrative\n\nremoval order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has\n\nnever been lawfully admitted for permanent residence to the United States, and\n\n(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.\n\n§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an\n\nimmigration official witnessed Almanza-Vigil walk across the border near El Paso,\n\nTexas, and into Mexico.\n\n Six years later, in April 2015, a set of footprints in the New Mexico desert led\n\nborder-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the\n\nborder fence. The agents arrested him, suspecting that he’d entered illegally. After\n\nhis processing revealed the 2009 removal order, prosecutors filed a criminal\n\ncomplaint in the U.S. District Court for the District of New Mexico, alleging that\n\nAlmanza-Vigil had reentered the country in violation of an outstanding removal order\n\nthat had followed an aggravated-felony conviction. Three months later, a grand jury\n\nreturned an indictment charging him with illegal reentry in violation of 8 U.S.C.\n\n§ 1326(a) and (b).\n\n Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal\n\norder—the government’s proof that he had reentered illegally (a felony under\n\n8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under\n\n§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he\n\n 9\n\fhad never been convicted of an aggravated felony. R. vol. 1 at 54. Had the\n\ngovernment realized this, he argued, he would not have been put in expedited\n\nremoval proceedings, and he could have applied for (and likely received)\n\ndiscretionary relief from removal. But the district court denied the motion and\n\nforeclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court\n\nto reconsider this ruling, but twice, the court refused.\n\n On December 14, 2015, after denying Almanza-Vigil’s first motion to\n\nreconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that\n\nhe had returned to the United States without permission after being deported, the\n\ncourt found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four\n\nweeks later, after denying his second motion to reconsider, the court entered\n\njudgment and sentenced Almanza-Vigil to 635 days in prison (approximately time\n\nserved—he had been in custody since his arrest on April 19, 2015).4 He immediately\n\nappealed.\n\n DISCUSSION\n\n Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-\n\nreentry indictment. On appeal, as in the district court, he disputes the validity of his\n\n2009 removal order by arguing that it was entered without due process. When a\n\nnoncitizen attacks the constitutionality of a previous removal proceeding in this way,\n\nhe presents a mixed question of law and fact that we review de novo. United States v.\n\n\n 4\n After his release, he returned to Mexico.\n\n 10\n\fAguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the\n\nmerits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave\n\ntogether the appeal’s statutory and procedural context.\n\n A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally\n Attack the Underlying Removal Order?\n\n When the government prosecutes a noncitizen for illegal reentry, it typically\n\nmust prove two things: (1) that the noncitizen left the United States with an\n\noutstanding order of removal against him and (2) that afterward, the noncitizen\n\nentered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).\n\n When the government offers a previous removal order as evidence of the first\n\nelement, the Fifth Amendment protects the noncitizen’s right to challenge that order,\n\neven years after the time for appeal has passed and the order has become final.\n\nUnited States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United\n\nStates v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this\n\nright in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See\n\nAdame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the\n\nnoncitizen must show (1) that he exhausted all administrative remedies available to\n\ncontest the previous removal order, (2) that the previous removal proceedings\n\ndeprived him of the opportunity to seek judicial review, and (3) that the previous\n\norder’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).\n\n Here, the district court concluded that, although Almanza-Vigil could satisfy\n\nthe first two conditions (administrative exhaustion and denial of judicial review) he\n\n\n 11\n\fcould not demonstrate the third condition, that the entry of the 2009 removal order\n\nwas fundamentally unfair. That conclusion rested on two, alternate grounds: first, that\n\nthe government had correctly classified Almanza-Vigil’s conviction as an aggravated\n\nfelony; and second, that the government’s decision to classify his conviction as an\n\naggravated felony had not prejudiced him. And because a collateral attack can’t\n\nsurvive the failure to meet any of § 1326(d)’s three conditions, the district court\n\nrejected Almanza-Vigil’s challenge to the 2009 order’s validity.\n\n So the appeal begins with one question: Does Almanza-Vigil’s conviction fit\n\nthe INA’s definition of an aggravated felony? Because we answer no, the appeal\n\npresents a second question: Did misclassifying the conviction so prejudice Almanza-\n\nVigil that the entry of his previous removal order was fundamentally unfair? Because\n\nwe again answer no, our inquiry ends there—we can uphold the dismissal of his\n\ncollateral attack without reaching § 1326(d)’s other conditions.\n\n B. Is “Selling or Distributing” Methamphetamine an Aggravated\n Felony?\n\n The parties dispute whether Almanza-Vigil’s conviction for “selling or\n\ndistributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies\n\nas an aggravated felony under the INA—specifically, whether it meets the definition\n\nin 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined\n\nin [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition\n\n\n\n\n 12\n\fof an aggravated felony. Then, we apply those principles to resolve the parties’\n\ndispute.\n\n 1. The Categorical and Modified Categorical Approaches to\n Classifying Offenses\n\n “When the government alleges that a state conviction qualifies as an\n\n‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to\n\ndetermine whether the state offense is comparable to an offense listed in the INA.”\n\nMoncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.\n\n29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The\n\ncategorical approach asks whether the state offense’s definition matches “the\n\n‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting\n\nDuenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it\n\n“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United\n\nStates, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the\n\nstate conviction rested on “‘the least of th[e] acts’ criminalized,” then determine\n\nwhether the generic federal offense encompasses “even those acts.” Id. at 190–91\n\n(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).\n\n “Whether the noncitizen’s actual conduct involved such facts ‘is quite\n\nirrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,\n\n400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the\n\n“constituent parts” of its legal definition, “the things the ‘prosecution must prove to\n\nsustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)\n\n\n 13\n\f(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the\n\ndefendant goes to trial, then the elements are “what the jury must find beyond a\n\nreasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant\n\npleads guilty, then the elements are what he “necessarily admits.” Id. (citing\n\nMcCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in\n\ncontrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal\n\nrequirements,” which “need neither be found by a jury nor admitted by a defendant.”\n\nId. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then\n\nciting Fact, Black’s Law Dictionary (10th ed. 2014)).\n\n When a state statute defines a single crime with a single—that is, indivisible—\n\nset of elements, the categorical approach is (relatively) “straightforward”: just “line[]\n\nup that crime’s elements alongside those of the generic offense and see[] if they\n\nmatch.” Id. But this comparison gets more complicated when a state statute is\n\ndivisible—that is, when it creates multiple crimes by listing multiple, alternative\n\nelements. Id. at 2249.5\n\n When a statute lists alternative elements, the modified categorical approach\n\nallows us to glimpse “a limited class of documents” from the previous conviction—\n\nthe indictment, the jury instructions, the plea agreement or colloquy—so that we can\n\n\n\n 5\n Mathis gives the example of a California law against “‘the lawful or the\nunlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law\ncreates “two offenses, one more serious than the other.” Id. But only the more serious\noffense, involving unlawful entry, matches generic federal burglary. Id.\n\n 14\n\ffigure out which alternative “was integral to the defendant’s conviction (that is,\n\nwhich was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;\n\nTaylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which\n\nelements, the noncitizen was convicted of, we can “compare that crime, as the\n\ncategorical approach commands, with the relevant generic offense.” Id. But “the\n\nmodified categorical approach serves—and serves solely—as a tool to identify the\n\nelements of a crime of conviction when a statute’s disjunctive phrasing renders one\n\n(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.\n\n254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even\n\nthough for a too-broad crime, rested on facts (or otherwise said, involved means) that\n\nalso could have satisfied the elements of a generic offense.” Id. at 2254.\n\n So, when we encounter a statute that lists alternatives, we face a threshold\n\nquestion: does the list enumerate alternative elements, which would allow us to use\n\nthe modified categorical approach, or alternative means, which would not?\n\n In Mathis, a state-court decision “definitively answer[ed]” the question\n\nwhether Iowa Code § 702.12, which prohibits unlawful entry into “any building,\n\nstructure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates\n\nalternative methods of committing the same crime. Id. at 2256. In State v. Duncan,\n\nthe Iowa Supreme Court held that a jury need not unanimously agree on the burgled\n\npremises—there, either a boat or a marina—to convict the defendant of burglary;\n\neach location was an “alternative method of committing a single crime.” 312 N.W.2d\n\n519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa\n\n 15\n\fstatute’s list of locations “[laid] out alternative ways of satisfying a single, locational\n\nelement.” Mathis, 136 S. Ct. at 2250, 2256.6\n\n In other cases, the statute itself might resolve the means-or-elements question.\n\nId. at 2256. If each alternative carries a different penalty, then to comply with\n\nApprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree\n\non one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at\n\n2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which\n\ndistinguishes second-degree burglary of a dwelling, a class 3 felony, from second-\n\ndegree burglary of any other “building or occupied structure,” a class 4 felony).\n\nOther state laws may specify the contents of a charging document: what things\n\nprosecutors must charge (elements) and what things they need not charge (means). Id.\n\n(citing Cal. Penal Code § 952 (West 2008)).\n\n In still other cases, though, state law might fail “to provide clear answers.” Id.\n\nThen, the modified categorical approach permits us to glimpse the record of the\n\nprevious conviction to determine whether the listed items are elements of the offense.\n\nId. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)\n\n(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents\n\nreference one alternative “to the exclusion of all others,” that indicates the statute\n\n\n 6\n Compared to generic burglary, which protects any “building or other\nstructure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at\n2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational\nelements didn’t line up, Mathis concluded that the two did not categorically match.\nSee id. at 2256–57.\n\n 16\n\flists several, alternative elements, each defining a separate crime. Id. at 2257. Then—\n\nand only then—can we use the documents to identify the crime of conviction. Id.\n\n“Conversely,” though, if the indictment and jury instructions reiterate the statutory\n\nlist (“building, structure, or vehicle”) or use “a single umbrella term” (like\n\n“premises”), that indicates the statute lists alternative means of fulfilling one\n\nelement. Id. And if so, we have “no call to decide which of the statutory alternatives\n\nwas at issue in the earlier prosecution.” Id. at 2256.\n\n Next, we consider what this means for Almanza-Vigil.\n\n 2. Does Almanza-Vigil’s Colorado Felony Categorically Match\n an Aggravated Felony Under the INA?\n\n Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)\n\n(2006) sweeps too broadly to fit the generic federal offense at issue here—the\n\naggravated felony of “illicit trafficking in a controlled substance (as defined in\n\n[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).\n\n The generic offense encompasses any offense (state or federal) that “proscribes\n\nconduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.\n\nNo. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).\n\nLopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By\n\n\n 7\n To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)\ndefines a “drug trafficking crime” as “any felony punishable under” three federal\nstatutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a\n“felony” if “the maximum term of imprisonment authorized” is more than a year.\n\n 17\n\fcomparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado\n\nRevised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,\n\ndispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,\n\nsell, or distribute a controlled substance” (among other acts). As even the government\n\nconcedes, the least of the acts criminalized—simple possession—is not a felony\n\nunder the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for\n\na defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the\n\nstatute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic\n\noffense.\n\n But the government contends that the Colorado statute is divisible and that,\n\nunder the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the\n\ngovernment terms “distribution of methamphetamine,” which it claims “clearly\n\nconstitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer\n\nBr. at 26. We disagree.\n\n Last year, two Tenth Circuit cases considered the scope of a “controlled\n\nsubstance offense,” one of two categories of previous convictions that enhance the\n\nsentence of a “career offender” under the federal sentencing guidelines. United\n\nStates v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.\n\nMadkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing\n\nGuidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s\n\ndefinition of a drug-trafficking offense, the guidelines’ definition of a “controlled\n\nsubstance offense” encompasses all state or federal offenses (1) that are punishable\n\n 18\n\fby more than a year’s imprisonment and (2) that proscribe the “manufacture, import,\n\nexport, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .\n\nabetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)\n\n& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition\n\nof distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also\n\nMcKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.\n\n Both decisions then compared that definition to the defendants’ previous\n\nconvictions: Madkins’s convictions for the Kansas crimes of “possession with intent\n\nto sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for\n\nthe Colorado crime at issue here (albeit a newer iteration, which had dropped simple\n\npossession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting\n\nKan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–\n\n74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that\n\nColorado’s uniform controlled-substances act defines a “sale” to include “a barter, an\n\nexchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis\n\nadded); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that\n\nKansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.\n\nIncorporating each state’s definition of a “sale” into its proscription on “selling or\n\ndistributing” a controlled substance, both Madkins and McKibbon determined that the\n\nstates’ drug laws swept in more conduct—including offers to sell a controlled\n\nsubstance—than fit within the guidelines’ definition of a “controlled substance\n\noffense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United\n\n 19\n\fStates v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar\n\nTexas statute was broader than the guidelines’ definition); United States v. Savage,\n\n542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was\n\nlikewise “overly inclusive”)). And because the elements didn’t line up, there was a\n\ncategorical mismatch.\n\n That was so, Madkins and McKibbon concluded, even though a “controlled\n\nsubstance offense” includes an attempt to distribute the controlled substance. See\n\nU.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime\n\nrequires the intent to commit the crime and overt acts in furtherance of that intent.”\n\n866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.\n\n2005)). Yet a person can offer to sell a controlled substance (an overt act) without\n\nintending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,\n\n“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d\n\nat 965). Unless we read in limiting language (which is out of bounds during statutory\n\nconstruction), a state law that proscribes all “offers” to sell a controlled substance\n\ncovers both the bona fide and the fraudulent. And because a fraudulent offer lacks\n\n“the intent to sell or distribute” that an attempt requires, a conviction for “selling or\n\ndistributing” a controlled substance (in any state that defines “sale” to include all\n\noffers) criminalizes a broader swath of conduct than the guidelines’ definition of a\n\n“controlled substance offense.” Id. at 1148.\n\n Madkins and (four months later) McKibbon thus both concluded that the\n\nguidelines’ definition of a “controlled substance offense” excludes convictions under\n\n 20\n\fstate statutes that proscribe “offers” to sell a controlled substance. McKibbon,\n\n878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under\n\nsuch a state statute is a fraudulent offer to sell a controlled substance, which does not\n\nconstitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,\n\n569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a\n\ncategorical match.” Madkins, 866 F.3d at 1147.\n\n In reaching this conclusion, McKibbon addressed but rejected the\n\ngovernment’s contention (which it raises again here) that Colorado Revised Statutes\n\n§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal\n\noffenses, including manufacturing, dispensing, distributing, selling, or offering to sell\n\na controlled substance.” 878 F.3d at 974. If the government’s argument were correct,\n\nthen the court could have used the modified categorical approach to determine the\n\noffense to which McKibbon had pleaded guilty (and then compared that offense to\n\nthe guidelines’ definition). Id. But the court deemed the statute indivisible based on\n\nthe Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.\n\n2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado\n\ncourt’s decision definitively answered the elements-or-means question—and its\n\nanswer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).\n\n\n\n\n 21\n\f In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes\n\n§ 18-18-4058 defines a single offense for double-jeopardy purposes:\n\n Nothing in the specific language of the statute or the history of its\n enactment suggests an intent to create a separate offense for each\n proscribed act. On the contrary, the scope and structure of the proscriptive\n provision, combined with sentencing provisions differentiating\n punishments on the basis of the quantum of drugs (rather than the act)\n involved, strongly points to the creation of a single crime, the gravamen\n of which is preventing the unauthorized delivery of a “particular quantity\n of a particular contraband substance.” . . . . Rather than completely\n separate offenses, the statute strongly suggests an intent to “criminalize\n successive stages of a single undertaking,” . . . “encompass[ing] every act\n and activity which could lead to the proliferation of drug traffic.”\n\n111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.\n\nState, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.\n\nMendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.\n\nGomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely\n\naddressed divisibility by “holding that the state legislature intended to create a single\n\nunitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”\n\nMcKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,\n\nMcKibbon added, Abiodun interpreted the Colorado statute to dole out the same\n\npunishments regardless of “whether a defendant manufactured or distributed or\n\noffered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).\n\n\n 8\n Abiodun reviewed convictions that occurred sometime between 2001 and\n2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and\nwhen § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,\n87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple\npossession only in 2010. See supra note 2.\n\n 22\n\f Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final\n\nsuggestion—“if state law fails to provide clear answers”—allowed the McKibbon\n\ncourt to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,\n\n136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to\n\nviolating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or\n\ndistributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous\n\nrecord indicated that “selling or distributing” a controlled substance were alternative\n\nmeans of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at\n\n2248).9\n\n Madkins and McKibbon thus crafted a general rule: if state law criminalizes\n\nfraudulent offers to sell a controlled substance, then a conviction under that state law\n\nis a categorical mismatch for the guidelines’ generic “controlled substance offense.”\n\nHere, we take their logic another step, into the immigration context. Like the generic\n\n“controlled substance offense” under the guidelines, the generic offense of “illicit\n\ntrafficking in a controlled substance” under the INA encompasses all state offenses\n\nthat are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope\n\nof “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),\n\n\n\n 9\n Madkins also addressed divisibility, but it deemed the Kansas statutes\ndivisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),\n65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded\nguilty to possession with intent to sell cocaine and marijuana. Id. And the court\ndetermined that under Kansas law, these offenses covered possession with the intent\nto offer to sell cocaine and marijuana. See id.\n\n 23\n\fwith McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope\n\nof a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to\n\nMadkins and McKibbon, the felony offenses of distribution and attempted\n\ndistribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.\n\n§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a\n\ncontrolled substance). So, a state statute that proscribes all offers to sell a controlled\n\nsubstance, including fraudulent ones, criminalizes more conduct than (and is a\n\ncategorical mismatch for) the INA’s definition of “illicit trafficking in a controlled\n\nsubstance.” See 8 U.S.C. § 1101(a)(43)(B).\n\n As for the state statute at issue here, McKibbon further tells us that Colorado\n\nRevised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling\n\nor distributing” a controlled substance are alternative means of committing a single\n\noffense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically\n\nrejected the argument that the government makes here: that we can use the modified\n\ncategorical approach to define Almanza-Vigil’s crime of conviction more narrowly,\n\nas “distributing” methamphetamine. See id. at 974–76.\n\n And like in McKibbon, even if we do use the modified categorical approach to\n\n“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was\n\nconvicted of “selling or distributing” methamphetamine. Of the six counts in the\n\ncomplaint, he pleaded guilty to the first:\n\n COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -\n SCHEDULE II (F-3)\n\n\n 24\n\f On or About September 15, 2006, OSCAR ALMANZA-VIGIL\n unlawfully, feloniously, and knowingly sold or distributed\n METHAMPHETAMINE, a schedule II controlled substance; in violation\n of section 18-18-405(1),(2)(a)(I)(A), C.R.S.\n\nSuppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an\n\nindictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as\n\nclear an indication as any that each alternative is only a possible means of\n\ncommission, not an element that the prosecutor must prove to a jury beyond a\n\nreasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,\n\nthe state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.\n\nvol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms\n\nof the charging document, the terms of a plea agreement or transcript of\n\ncolloquy . . . , or to some comparable judicial record of this information.” Shepard,\n\n544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language\n\nin count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”\n\nmethamphetamine. Suppl. R. vol. 2 at 3.\n\n Accordingly, it doesn’t matter whether we apply the categorical approach or\n\nthe modified categorical approach. Either way, Almanza-Vigil’s crime of conviction\n\nis “selling or distributing” a controlled substance in violation of Colorado Revised\n\nStatutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to\n\nsell a controlled substance, it does not categorically match the aggravated felony of\n\n“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”\n\n8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.\n\n\n 25\n\f That leaves a final question: Even though the government misclassified\n\nAlmanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in\n\nexpedited removal proceedings and the denial of any opportunity for discretionary\n\nrelief, can he additionally show that the entry of his previous removal order was\n\n“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).\n\n C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render\n the Entry of his 2009 Removal Order Fundamentally Unfair?\n\n Almanza-Vigil argues that the government’s misclassification of his Colorado\n\nconviction as an aggravated felony prejudiced him because, outside expedited\n\nremoval proceedings, he could have applied for and received relief from removal,\n\nsuch as voluntary departure or cancellation of removal.10\n\n In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous\n\nremoval order was fundamentally unfair to meet a reasonable-likelihood standard.\n\n353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental\n\nunfairness, the noncitizen must establish a reasonable likelihood that, but for the\n\n\n\n\n 10\n We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us\nfrom upholding his removal order on grounds different from those stated in that\norder. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a\ndetermination or judgment which an administrative agency alone is authorized to\nmake, must judge the propriety of such action solely by the grounds invoked by the\nagency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order\nitself unless Almanza-Vigil can establish that the order’s entry was fundamentally\nunfair. And as Almanza-Vigil’s arguments throughout this case show, the\nfundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving\nrelief from removal.\n\n\n 26\n\fcomplained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at\n\n1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).\n\nBut in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating\n\nprejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing\n\nMejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello\n\ncourt quoted Mejia-Rodriguez, where the Eleventh Circuit warned:\n\n An alien’s actual chances of receiving such discretionary relief\n [suspension of deportation]11 are too speculative, and too far beyond the\n capability of judicial review, to conclude that the alien has actually\n suffered prejudice from being ineligible for suspension of\n deportation . . . . Just as a court cannot review the inherently ‘subjective’\n judgments made by the executive in deciding whether to commute a life\n sentence, this Court cannot predict the subjective and fact-intensive\n judgments that the Attorney General would make in deciding whether to\n grant extraordinary relief, such as the suspension of deportation . . . . The\n alien cannot demonstrate prejudice, much less substantial prejudice,\n arising from the ineligibility for such an ‘act of grace’ because no\n standards exist for a court to determine whether the executive would have\n granted the extraordinary relief anyway.\n\nId. (quoting Mejia-Rodriguez, 178 F.3d at 1148).\n\n At the threshold, we disagree with the district court that Almanza-Vigil’s odds\n\nof receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry\n\n“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,\n\n353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning\n\n\n\n\n 11\n Under the current statutory scheme, “suspension of removal” corresponds to\ncancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization\nAct § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).\n\n\n 27\n\fnoncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of\n\nsuccess. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could\n\nhave received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.\n\nAccordingly, we will, too.\n\n We turn to whether, absent the government’s misclassification of his Colorado\n\nconviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of\n\nreceiving either cancellation of removal or voluntary departure.\n\n 1. Cancellation of Removal\n\n The INA gives the Attorney General discretion to cancel the removal of an\n\notherwise-removable, non-permanent-resident “alien” who:\n\n (A) has been physically present in the United States for a continuous\n period of not less than 10 years immediately preceding the date of\n [his] application [for cancellation of removal];\n\n (B) has been a person of good moral character during such period;\n\n (C) has not been convicted of an offense under [8 U.S.C.\n §§ ]1182(a)(2) [including “any law or regulation of a State . . .\n relating to a controlled substance (as defined in section 802 of Title\n 21)”], 1227(a)(2) [including an aggravated felony or “any law or\n regulation of a State . . . relating to a controlled substance”], or\n\n\n\n 12\n Before Congress enacted the Antiterrorism and Effective Death Penalty Act\n(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the\nAttorney General broad discretion to waive deportation for resident noncitizens. See\nINS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of\nnoncitizens eligible for such discretionary relief by identifying “a broad set of\noffenses for which conviction would preclude such relief.” Id. at 297. Later that year,\nCongress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of\n1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting\n“cancellation of removal” for a much narrower class of resident noncitizens. Id.\n\n 28\n\f 1227(a)(3) [failure to register and falsification of documents] . . . ;\n and\n\n (D) establishes that removal would result in exceptional and extremely\n unusual hardship to the alien’s spouse, parent, or child, who is a\n citizen of the United States or an alien lawfully admitted for\n permanent residence.\n\n8 U.S.C. § 1229b(b)(1).\n\n Almanza-Vigil claims that, “had the relevant officials realized his conviction\n\nwas not an aggravated felony,” he would have had a reasonable likelihood of\n\nreceiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the\n\ntestimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”\n\nlaw professor at the University of New Mexico School of Law and a practicing\n\nattorney who has represented hundreds of noncitizens in immigration proceedings. R.\n\nvol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil\n\nwas “eligible for this form of relief” despite having pleaded guilty to “selling or\n\ndistributing” methamphetamine. R. vol. 1 at 206:25–207:1.\n\n We disagree. Though “selling or distributing” methamphetamine is not an\n\naggravated felony under the INA, it does violate “a[] law or regulation of a State . . .\n\nrelating to a controlled substance,” namely, Colorado Revised Statutes\n\n§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado\n\nconviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),\n\nwhich would have disqualified him from receiving cancellation of removal under\n\n8 U.S.C. § 1229b(b)(1)(C).\n\n\n\n 29\n\f 2. Voluntary Departure\n\n Compared to cancellation of removal, voluntary departure is available to a\n\nbroader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and\n\nsome noncitizens “previously permitted to so depart,” from this form of relief. See id.\n\n§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his\n\nown expense instead of commencing, or before completing, removal proceedings. See\n\nid. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who\n\nmeets certain conditions may seek an order from the immigration judge “granting\n\nvoluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,\n\nthe “alien” must:\n\n (A) . . . [have] been physically present in the United States for a period\n of at least one year immediately preceding the date the notice to\n appear was served . . . ;\n\n (B) . . . [be, and have] been, a person of good moral character for at\n least 5 years immediately preceding the alien’s application for\n voluntary departure;\n\n (C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)\n [aggravated-felony convictions] or section 1227(a)(4) [security-\n related grounds, including terrorist activities] . . . ; and\n\n (D) . . . establish[] by clear and convincing evidence that the alien has\n the means to depart the United States and intends to do so.\n\nId.; see also 8 C.F.R. § 1240.26.\n\n Almanza-Vigil’s Colorado conviction was not an aggravated felony, and\n\nnothing in the record suggests that he poses a national-security risk. So, we agree\n\nwith Almanza-Vigil that even with his criminal record, he was eligible to receive\n 30\n\fvoluntary departure in 2009, at least before the completion of removal proceedings.13\n\nBut we disagree that he was reasonably likely to receive it. See Aguirre-Tello,\n\n353 F.3d at 1209.\n\n In exercising their discretion to grant or deny a voluntary-departure\n\napplication, immigration judges balance the applicant’s positive equities, like lengthy\n\nresidence in the United States and close ties to family here, against negative factors,\n\nlike an unfavorable immigration history or a criminal record, and then decide whether\n\nthe applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.\n\nDec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,\n\n917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of\n\n§ 1326(d)’s fundamental-unfairness prong).\n\n Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration\n\njudge considering the equities of his case would have found him worthy of voluntary\n\ndeparture. He had grown up in the United States since age eight; he had learned\n\nEnglish, graduated from high school, and worked a steady job; and he had many\n\n\n\n 13\n Had Almanza-Vigil received voluntary departure either before the end, or at\nthe end, of the removal proceedings, the immigration judge would have entered an\n“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).\nNeither party addressed how such an order might affect subsequent illegal-reentry\nproceedings. But had Almanza-Vigil returned after the entry of such an order, he\nwould have “departed the United States while an order of exclusion, deportation, or\nremoval [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus\nviolating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year\nmaximum prison sentence for those “whose removal was subsequent to a conviction\nfor commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)\n\n 31\n\fcitizen and lawful-permanent-resident family members, including a son born here.\n\nHis “only negative equity” was his conviction for “selling or distributing”\n\nmethamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that\n\nwith the counterweight of his positive factors, Almanza-Vigil “had a reasonable\n\nlikelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at\n\n212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly\n\ntypical to be granted,” absent “some egregious circumstance” (like “[p]rior violations\n\nof other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1\n\nat 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that\n\nhis clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–\n\n13.\n\n In further support, Almanza-Vigil cites cases in which noncitizens with\n\ncriminal records worse than his have won this form of relief. In his best example, In\n\nre: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an\n\nimmigration judge’s decision to grant voluntary departure to an applicant with\n\n“numerous arrests,” four assault convictions (the last of which sent him to prison for\n\nsix months), and one resisting-arrest conviction. 2006 WL 729784, at 1 (BIA\n\nFeb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,\n\nlike his lengthy residence in the country, his participation in Alcoholics Anonymous,\n\nand the testimony of his mother and sister, both U.S. citizens, that he had quit\n\ndrinking and helped his mother pay the bills, the board ruled that the immigration\n\njudge had not abused his discretion. Id. at 1–2.\n\n 32\n\f But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is\n\narguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly\n\nsituated alien would be afforded voluntary departure.” 780 F.3d at 920. The same\n\npoint dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s\n\nchances, nor could he describe any case in which an immigration judge had allowed\n\nsomeone convicted of “selling or distributing” methamphetamine to depart\n\nvoluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”\n\nlikely overall and would have been “reasonably” likely in Almanza-Vigil’s case\n\ncannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was\n\nunfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in\n\nUnited States v. Reyes-Alvares, which involved the same expert witness and a similar\n\nfact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at 1, 5 (D.N.M. Feb. 19,\n\n2016). There, the district court found Vrapi’s examples distinguishable from the case\n\nat bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like\n\ncandy.’” Id. at 6–7 (alterations in original). Even added to decisions like Gonzales-\n\nFigueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil\n\nmight have received voluntary departure had his Colorado conviction been properly\n\nclassified; it doesn’t establish a reasonable likelihood.\n\n Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but\n\nin 2009, when the government issued his removal order, he had just been released\n\nfrom prison for “selling or distributing” methamphetamine—a serious crime in the\n\ncolloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.\n\n 33\n\f§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil\n\noffered no evidence of rehabilitation. See 2006 WL 729784, at 1–2. As a result, he\n\ncan’t meet his burden of showing a “reasonable likelihood that, in deciding who is\n\ndeserving of discretionary relief from deportation among the many aliens eligible for\n\nsuch relief, the Attorney General would grant relief to one so recently convicted of\n\nsuch a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.\n\n We agree with the district court that Almanza-Vigil failed to satisfy the\n\nfundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that\n\ncondition, the INA precludes him from collaterally attacking his 2009 removal order\n\nin the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).\n\n CONCLUSION\n\n For these reasons, we affirm the district court’s judgment.\n\n\n\n\n 34", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356542/", "author_raw": "PHILLIPS, Circuit Judge."}]}	PHILLIPS	KELLY	MURPHY	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579289/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 7, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2007\n\n OSCAR ALMANZA-VIGIL,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:15-CR-02605-RB-1)\n _________________________________\n\nJames N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,\nNew Mexico, for Appellant.\n\nMarisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States\nAttorney, with her on the brief), Office of the United States Attorney, Las Cruces, New\nMexico, for Appellee.\n _________________________________\n\nBefore PHILLIPS, KELLY, and MURPHY, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n The Immigration and Naturalization Act (INA) defines “aggravated felony” to\n\ninclude “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),\n\nmaking removal from this country “a virtual certainty” for a noncitizen convicted of\n\fsuch a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes\n\nserious consequences on a noncitizen convicted of an aggravated felony: (1) he\n\nbecomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain\n\ndiscretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary\n\ndeparture, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,\n\nwith no immigration judge present, id. § 1228(a)(1).\n\n That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded\n\nguilty in Colorado state court to “selling or distributing” methamphetamine in\n\nviolation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he\n\nreceived a four-year prison sentence. In 2009, when the state paroled him,\n\nImmigration and Customs Enforcement (ICE) initiated expedited removal\n\nproceedings against him, declaring that he had committed an aggravated felony. With\n\nthat designation, he had no right to an administrative hearing before an immigration\n\njudge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings\n\nfor deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.\n\n§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put\n\naggravated felons in expedited removal proceedings without a hearing before an\n\nimmigration judge). Within the week, the Department of Homeland Security had\n\nissued a final administrative removal order, and ICE agents had sent Almanza-Vigil\n\nback across the border to Mexico. Six years later, border-patrol agents found\n\nAlmanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,\n\nAlmanza-Vigil moved to dismiss the indictment by collaterally attacking his previous\n\n 2\n\fremoval order and arguing, for the first time, that he never committed an aggravated\n\nfelony.\n\n Now reviewing the district court’s judgment convicting Almanza-Vigil for\n\nillegal reentry, we must return to 2009, when he left state prison, and ask how he\n\ncould have avoided removal. To prevail here, Almanza-Vigil must show not only that\n\nhis Colorado felony was not an aggravated felony, but that misclassifying it as one\n\nprejudiced him. To show the required prejudice, he must show that the\n\nmisclassification rendered the entry of the 2009 removal order fundamentally unfair.\n\nAbsent that, his appeal fails. See 8 U.S.C. § 1326(d).\n\n For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado\n\nfelony does not fit the INA’s definition of an aggravated felony. But we also\n\nconclude that he failed to demonstrate a reasonable likelihood of avoiding removal\n\nbut for the erroneous classification of his conviction. The INA therefore parries a\n\ncollateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,\n\nexercising our jurisdiction to review the district court’s final orders, 28 U.S.C.\n\n§ 1291, we affirm that court’s judgment of conviction.1\n\n\n 1\n The INA curbs our jurisdiction to review the removal order itself. Though the\nAct grants federal appellate courts exclusive authority to review final orders of\nremoval, it also carves from that authority our jurisdiction to review “any final order\nof removal entered against an alien who is removable by reason of having committed\na criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.\n§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,\nwe retain the “authority to determine whether the factual conditions for the bar are\npresent.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,\nnotwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove\n\n 3\n\f BACKGROUND\n\n Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,\n\neight-year-old Almanza-Vigil and his family trekked across the Mexico–United\n\nStates border, without documents and without government inspection, and settled in\n\nColorado. Almanza-Vigil never acquired legal immigration status, but he grew up in\n\nthis country, learning English, graduating from high school, finding work at a dairy\n\nfarm, and eventually fathering a son.\n\n In 2006, when Almanza-Vigil was twenty-one years old, the district attorney\n\nin Fort Morgan, Colorado, charged him with six violations of the state’s controlled-\n\nsubstances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,\n\nidentical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,\n\nAlmanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed\n\nMETHAMPHETAMINE, a schedule II controlled substance, in violation of section\n\n18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3\n\n(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing\n\nmethamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.\n\n At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent\n\npart:\n\n\n\n“criminal aliens”—or any other statutory (or non-statutory) limit on our\njurisdiction—the INA preserves our jurisdiction to review constitutional and legal\nissues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-\nreview scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-\nVigil committed an aggravated felony.\n\n 4\n\f (1)(a) Except as authorized by [other provisions of state law], it is\n unlawful for any person knowingly to manufacture, dispense, sell,\n distribute, possess, or to possess with intent to manufacture, dispense,\n sell, or distribute a controlled substance; or induce, attempt to induce, or\n conspire with one or more other persons, to manufacture, dispense, sell,\n distribute, possess, or possess with intent to manufacture, dispense, sell,\n or distribute a controlled substance; or possess one or more chemicals or\n supplies or equipment with intent to manufacture a controlled substance.\n\n ....\n\n (2)(a) Except as is otherwise provided in subsection (2.3) of this section\n for possession offenses not including possession with the intent to\n distribute involving one gram or less of any material, compound, mixture,\n or preparation that contains any quantity of a schedule I through IV\n controlled substance, . . . any person who violates any of the provisions\n of subsection (1) of this section:\n\n (I) In the case of a controlled substance listed in schedule I or II of part 2\n of this article, commits:\n\n (A) A class 3 felony; except that a person commits a class 4 felony if such\n violation is based on the possession of a controlled substance listed in\n schedule II unless otherwise provided in paragraph (a) of subsection (3)\n of this section[.]\n\n ....\n\n (2.3)(a) Any person who commits the offense of possession in violation\n of the provisions of subsection (1) of this section by possessing any\n material, compound, mixture, or preparation, weighing one gram or less\n that contains any quantity of a controlled substance listed in schedules I\n through IV of part 2 of this article commits:\n\n (I) A class 6 felony[.]\n\nColo. Rev. Stat. § 18-18-405 (2006).2\n\n\n\n 2\n Since 2006, the Colorado legislature has revised § 18-18-405 several times.\nSee, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.\nLaws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of\nproscriptions).\n\n 5\n\f In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or\n\ndistributing” methamphetamine. In exchange, the state dismissed the remaining five\n\ncharges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.\n\nThe order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),\n\n(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,\n\n5, and 6—two more distribution charges (also class 3 felonies) and three possession\n\ncharges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.\n\nvol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.\n\n Two years passed. Then, prison officials informed Almanza-Vigil (whose\n\nparole was approaching) that the federal government had issued an immigration hold.\n\n“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at\n\n154:25. And from that point on, he claims, he “never thought” that he would be able\n\nto challenge his removal. R. vol. 1 at 155:1.\n\n In April 2009, the state released Almanza-Vigil to ICE agents, who detained\n\nhim pending his removal. The Department of Homeland Security had decided that\n\nAlmanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of\n\nan “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)\n\nand, because he lacked permanent-resident status, subjecting him to expedited\n\n\n\n\n 6\n\fremoval proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without\n\na hearing before an immigration judge.3\n\n The record on appeal contains the two forms that the government claims to\n\nhave given Almanza-Vigil during these proceedings: a two-page Notice of Intent\n\n(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the\n\ndistrict court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.\n\n Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal\n\nOrder.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar\n\nALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The\n\nNotice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated\n\nfelony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and\n\n\n\n 3\n In expedited removal proceedings, a noncitizen with an aggravated-felony\nconviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and\nineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-\nremoval statute and its accompanying regulations protect noncitizens’ rights to\nprocedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the\ngovernment to wait fourteen days after issuing the final removal order and before\nexecuting it to allow the noncitizen “an opportunity to apply for judicial review” of\nthe order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the\ngovernment also must give the noncitizen reasonable notice of the charges against\nhim, as well as an opportunity to rebut them, and allow the noncitizen “the privilege\nof being represented (at no expense to the government)” by counsel. Id.\n§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen\nmust be served with “Form I-851, Notice of Intent to Issue a Final Administrative\nDeportation Order,” which must inform the noncitizen of his rights to representation\nand to judicial review, among other rights, and provide him with a list of free legal\nservices. 8 C.F.R. § 238.1(b)(1)–(2).\n\n 7\n\fResponsibilities,” including (1) that “you may contact legal counsel from the list of\n\navailable services provided to you” (a list that the government didn’t provide) and\n\n(2) that if you want to exercise your rights to rebut the charge or to seek judicial\n\nreview, the government must receive your written response within ten days. Id. But\n\nthe Notice lacks a designated space for Almanza-Vigil’s signature. And while the\n\nNotice’s first page claims to be “Form I-851,” the next page identifies itself as “Form\n\nI-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above\n\nthis puzzling footer, the Continuation Page contains a typewritten paragraph alleging,\n\n“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute\n\nSch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for\n\nwhich the term of imprisonment was 4 years.” Id.\n\n Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed\n\nstatement: “I served this Notice of Intent. I have determined that the person served\n\nwith this document is the individual named on the other side of the form.” Id. at 8.\n\n(The contents of the “other side” remain a mystery: the district court deduced only\n\nthat “the other side” was probably not the Certificate, based on the government’s\n\nintroduction of the Notice and the Certificate as separate exhibits.) Beneath two\n\nchecked boxes—one admitting “the allegations and charge in this Notice of Intent,”\n\nanother waiving “the right to remain in the United States . . . to apply for judicial\n\nreview”—the Certificate has three lines: on the first is a hand-drawn “x” and\n\nAlmanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on\n\nthe third is the date, April 6, 2009. Id.\n\n 8\n\f In the government’s view, Almanza-Vigil knowingly waived his right to\n\ncontest his removal by signing the Certificate. So, on April 6 (the same day that he\n\nsigned it), the Department of Homeland Security issued a final administrative\n\nremoval order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has\n\nnever been lawfully admitted for permanent residence to the United States, and\n\n(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.\n\n§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an\n\nimmigration official witnessed Almanza-Vigil walk across the border near El Paso,\n\nTexas, and into Mexico.\n\n Six years later, in April 2015, a set of footprints in the New Mexico desert led\n\nborder-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the\n\nborder fence. The agents arrested him, suspecting that he’d entered illegally. After\n\nhis processing revealed the 2009 removal order, prosecutors filed a criminal\n\ncomplaint in the U.S. District Court for the District of New Mexico, alleging that\n\nAlmanza-Vigil had reentered the country in violation of an outstanding removal order\n\nthat had followed an aggravated-felony conviction. Three months later, a grand jury\n\nreturned an indictment charging him with illegal reentry in violation of 8 U.S.C.\n\n§ 1326(a) and (b).\n\n Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal\n\norder—the government’s proof that he had reentered illegally (a felony under\n\n8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under\n\n§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he\n\n 9\n\fhad never been convicted of an aggravated felony. R. vol. 1 at 54. Had the\n\ngovernment realized this, he argued, he would not have been put in expedited\n\nremoval proceedings, and he could have applied for (and likely received)\n\ndiscretionary relief from removal. But the district court denied the motion and\n\nforeclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court\n\nto reconsider this ruling, but twice, the court refused.\n\n On December 14, 2015, after denying Almanza-Vigil’s first motion to\n\nreconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that\n\nhe had returned to the United States without permission after being deported, the\n\ncourt found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four\n\nweeks later, after denying his second motion to reconsider, the court entered\n\njudgment and sentenced Almanza-Vigil to 635 days in prison (approximately time\n\nserved—he had been in custody since his arrest on April 19, 2015).4 He immediately\n\nappealed.\n\n DISCUSSION\n\n Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-\n\nreentry indictment. On appeal, as in the district court, he disputes the validity of his\n\n2009 removal order by arguing that it was entered without due process. When a\n\nnoncitizen attacks the constitutionality of a previous removal proceeding in this way,\n\nhe presents a mixed question of law and fact that we review de novo. United States v.\n\n\n 4\n After his release, he returned to Mexico.\n\n 10\n\fAguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the\n\nmerits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave\n\ntogether the appeal’s statutory and procedural context.\n\n A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally\n Attack the Underlying Removal Order?\n\n When the government prosecutes a noncitizen for illegal reentry, it typically\n\nmust prove two things: (1) that the noncitizen left the United States with an\n\noutstanding order of removal against him and (2) that afterward, the noncitizen\n\nentered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).\n\n When the government offers a previous removal order as evidence of the first\n\nelement, the Fifth Amendment protects the noncitizen’s right to challenge that order,\n\neven years after the time for appeal has passed and the order has become final.\n\nUnited States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United\n\nStates v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this\n\nright in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See\n\nAdame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the\n\nnoncitizen must show (1) that he exhausted all administrative remedies available to\n\ncontest the previous removal order, (2) that the previous removal proceedings\n\ndeprived him of the opportunity to seek judicial review, and (3) that the previous\n\norder’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).\n\n Here, the district court concluded that, although Almanza-Vigil could satisfy\n\nthe first two conditions (administrative exhaustion and denial of judicial review) he\n\n\n 11\n\fcould not demonstrate the third condition, that the entry of the 2009 removal order\n\nwas fundamentally unfair. That conclusion rested on two, alternate grounds: first, that\n\nthe government had correctly classified Almanza-Vigil’s conviction as an aggravated\n\nfelony; and second, that the government’s decision to classify his conviction as an\n\naggravated felony had not prejudiced him. And because a collateral attack can’t\n\nsurvive the failure to meet any of § 1326(d)’s three conditions, the district court\n\nrejected Almanza-Vigil’s challenge to the 2009 order’s validity.\n\n So the appeal begins with one question: Does Almanza-Vigil’s conviction fit\n\nthe INA’s definition of an aggravated felony? Because we answer no, the appeal\n\npresents a second question: Did misclassifying the conviction so prejudice Almanza-\n\nVigil that the entry of his previous removal order was fundamentally unfair? Because\n\nwe again answer no, our inquiry ends there—we can uphold the dismissal of his\n\ncollateral attack without reaching § 1326(d)’s other conditions.\n\n B. Is “Selling or Distributing” Methamphetamine an Aggravated\n Felony?\n\n The parties dispute whether Almanza-Vigil’s conviction for “selling or\n\ndistributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies\n\nas an aggravated felony under the INA—specifically, whether it meets the definition\n\nin 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined\n\nin [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition\n\n\n\n\n 12\n\fof an aggravated felony. Then, we apply those principles to resolve the parties’\n\ndispute.\n\n 1. The Categorical and Modified Categorical Approaches to\n Classifying Offenses\n\n “When the government alleges that a state conviction qualifies as an\n\n‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to\n\ndetermine whether the state offense is comparable to an offense listed in the INA.”\n\nMoncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.\n\n29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The\n\ncategorical approach asks whether the state offense’s definition matches “the\n\n‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting\n\nDuenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it\n\n“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United\n\nStates, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the\n\nstate conviction rested on “‘the least of th[e] acts’ criminalized,” then determine\n\nwhether the generic federal offense encompasses “even those acts.” Id. at 190–91\n\n(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).\n\n “Whether the noncitizen’s actual conduct involved such facts ‘is quite\n\nirrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,\n\n400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the\n\n“constituent parts” of its legal definition, “the things the ‘prosecution must prove to\n\nsustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)\n\n\n 13\n\f(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the\n\ndefendant goes to trial, then the elements are “what the jury must find beyond a\n\nreasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant\n\npleads guilty, then the elements are what he “necessarily admits.” Id. (citing\n\nMcCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in\n\ncontrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal\n\nrequirements,” which “need neither be found by a jury nor admitted by a defendant.”\n\nId. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then\n\nciting Fact, Black’s Law Dictionary (10th ed. 2014)).\n\n When a state statute defines a single crime with a single—that is, indivisible—\n\nset of elements, the categorical approach is (relatively) “straightforward”: just “line[]\n\nup that crime’s elements alongside those of the generic offense and see[] if they\n\nmatch.” Id. But this comparison gets more complicated when a state statute is\n\ndivisible—that is, when it creates multiple crimes by listing multiple, alternative\n\nelements. Id. at 2249.5\n\n When a statute lists alternative elements, the modified categorical approach\n\nallows us to glimpse “a limited class of documents” from the previous conviction—\n\nthe indictment, the jury instructions, the plea agreement or colloquy—so that we can\n\n\n\n 5\n Mathis gives the example of a California law against “‘the lawful or the\nunlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law\ncreates “two offenses, one more serious than the other.” Id. But only the more serious\noffense, involving unlawful entry, matches generic federal burglary. Id.\n\n 14\n\ffigure out which alternative “was integral to the defendant’s conviction (that is,\n\nwhich was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;\n\nTaylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which\n\nelements, the noncitizen was convicted of, we can “compare that crime, as the\n\ncategorical approach commands, with the relevant generic offense.” Id. But “the\n\nmodified categorical approach serves—and serves solely—as a tool to identify the\n\nelements of a crime of conviction when a statute’s disjunctive phrasing renders one\n\n(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.\n\n254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even\n\nthough for a too-broad crime, rested on facts (or otherwise said, involved means) that\n\nalso could have satisfied the elements of a generic offense.” Id. at 2254.\n\n So, when we encounter a statute that lists alternatives, we face a threshold\n\nquestion: does the list enumerate alternative elements, which would allow us to use\n\nthe modified categorical approach, or alternative means, which would not?\n\n In Mathis, a state-court decision “definitively answer[ed]” the question\n\nwhether Iowa Code § 702.12, which prohibits unlawful entry into “any building,\n\nstructure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates\n\nalternative methods of committing the same crime. Id. at 2256. In State v. Duncan,\n\nthe Iowa Supreme Court held that a jury need not unanimously agree on the burgled\n\npremises—there, either a boat or a marina—to convict the defendant of burglary;\n\neach location was an “alternative method of committing a single crime.” 312 N.W.2d\n\n519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa\n\n 15\n\fstatute’s list of locations “[laid] out alternative ways of satisfying a single, locational\n\nelement.” Mathis, 136 S. Ct. at 2250, 2256.6\n\n In other cases, the statute itself might resolve the means-or-elements question.\n\nId. at 2256. If each alternative carries a different penalty, then to comply with\n\nApprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree\n\non one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at\n\n2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which\n\ndistinguishes second-degree burglary of a dwelling, a class 3 felony, from second-\n\ndegree burglary of any other “building or occupied structure,” a class 4 felony).\n\nOther state laws may specify the contents of a charging document: what things\n\nprosecutors must charge (elements) and what things they need not charge (means). Id.\n\n(citing Cal. Penal Code § 952 (West 2008)).\n\n In still other cases, though, state law might fail “to provide clear answers.” Id.\n\nThen, the modified categorical approach permits us to glimpse the record of the\n\nprevious conviction to determine whether the listed items are elements of the offense.\n\nId. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)\n\n(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents\n\nreference one alternative “to the exclusion of all others,” that indicates the statute\n\n\n 6\n Compared to generic burglary, which protects any “building or other\nstructure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at\n2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational\nelements didn’t line up, Mathis concluded that the two did not categorically match.\nSee id. at 2256–57.\n\n 16\n\flists several, alternative elements, each defining a separate crime. Id. at 2257. Then—\n\nand only then—can we use the documents to identify the crime of conviction. Id.\n\n“Conversely,” though, if the indictment and jury instructions reiterate the statutory\n\nlist (“building, structure, or vehicle”) or use “a single umbrella term” (like\n\n“premises”), that indicates the statute lists alternative means of fulfilling one\n\nelement. Id. And if so, we have “no call to decide which of the statutory alternatives\n\nwas at issue in the earlier prosecution.” Id. at 2256.\n\n Next, we consider what this means for Almanza-Vigil.\n\n 2. Does Almanza-Vigil’s Colorado Felony Categorically Match\n an Aggravated Felony Under the INA?\n\n Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)\n\n(2006) sweeps too broadly to fit the generic federal offense at issue here—the\n\naggravated felony of “illicit trafficking in a controlled substance (as defined in\n\n[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).\n\n The generic offense encompasses any offense (state or federal) that “proscribes\n\nconduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.\n\nNo. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).\n\nLopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By\n\n\n 7\n To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)\ndefines a “drug trafficking crime” as “any felony punishable under” three federal\nstatutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a\n“felony” if “the maximum term of imprisonment authorized” is more than a year.\n\n 17\n\fcomparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado\n\nRevised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,\n\ndispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,\n\nsell, or distribute a controlled substance” (among other acts). As even the government\n\nconcedes, the least of the acts criminalized—simple possession—is not a felony\n\nunder the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for\n\na defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the\n\nstatute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic\n\noffense.\n\n But the government contends that the Colorado statute is divisible and that,\n\nunder the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the\n\ngovernment terms “distribution of methamphetamine,” which it claims “clearly\n\nconstitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer\n\nBr. at 26. We disagree.\n\n Last year, two Tenth Circuit cases considered the scope of a “controlled\n\nsubstance offense,” one of two categories of previous convictions that enhance the\n\nsentence of a “career offender” under the federal sentencing guidelines. United\n\nStates v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.\n\nMadkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing\n\nGuidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s\n\ndefinition of a drug-trafficking offense, the guidelines’ definition of a “controlled\n\nsubstance offense” encompasses all state or federal offenses (1) that are punishable\n\n 18\n\fby more than a year’s imprisonment and (2) that proscribe the “manufacture, import,\n\nexport, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .\n\nabetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)\n\n& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition\n\nof distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also\n\nMcKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.\n\n Both decisions then compared that definition to the defendants’ previous\n\nconvictions: Madkins’s convictions for the Kansas crimes of “possession with intent\n\nto sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for\n\nthe Colorado crime at issue here (albeit a newer iteration, which had dropped simple\n\npossession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting\n\nKan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–\n\n74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that\n\nColorado’s uniform controlled-substances act defines a “sale” to include “a barter, an\n\nexchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis\n\nadded); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that\n\nKansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.\n\nIncorporating each state’s definition of a “sale” into its proscription on “selling or\n\ndistributing” a controlled substance, both Madkins and McKibbon determined that the\n\nstates’ drug laws swept in more conduct—including offers to sell a controlled\n\nsubstance—than fit within the guidelines’ definition of a “controlled substance\n\noffense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United\n\n 19\n\fStates v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar\n\nTexas statute was broader than the guidelines’ definition); United States v. Savage,\n\n542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was\n\nlikewise “overly inclusive”)). And because the elements didn’t line up, there was a\n\ncategorical mismatch.\n\n That was so, Madkins and McKibbon concluded, even though a “controlled\n\nsubstance offense” includes an attempt to distribute the controlled substance. See\n\nU.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime\n\nrequires the intent to commit the crime and overt acts in furtherance of that intent.”\n\n866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.\n\n2005)). Yet a person can offer to sell a controlled substance (an overt act) without\n\nintending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,\n\n“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d\n\nat 965). Unless we read in limiting language (which is out of bounds during statutory\n\nconstruction), a state law that proscribes all “offers” to sell a controlled substance\n\ncovers both the bona fide and the fraudulent. And because a fraudulent offer lacks\n\n“the intent to sell or distribute” that an attempt requires, a conviction for “selling or\n\ndistributing” a controlled substance (in any state that defines “sale” to include all\n\noffers) criminalizes a broader swath of conduct than the guidelines’ definition of a\n\n“controlled substance offense.” Id. at 1148.\n\n Madkins and (four months later) McKibbon thus both concluded that the\n\nguidelines’ definition of a “controlled substance offense” excludes convictions under\n\n 20\n\fstate statutes that proscribe “offers” to sell a controlled substance. McKibbon,\n\n878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under\n\nsuch a state statute is a fraudulent offer to sell a controlled substance, which does not\n\nconstitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,\n\n569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a\n\ncategorical match.” Madkins, 866 F.3d at 1147.\n\n In reaching this conclusion, McKibbon addressed but rejected the\n\ngovernment’s contention (which it raises again here) that Colorado Revised Statutes\n\n§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal\n\noffenses, including manufacturing, dispensing, distributing, selling, or offering to sell\n\na controlled substance.” 878 F.3d at 974. If the government’s argument were correct,\n\nthen the court could have used the modified categorical approach to determine the\n\noffense to which McKibbon had pleaded guilty (and then compared that offense to\n\nthe guidelines’ definition). Id. But the court deemed the statute indivisible based on\n\nthe Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.\n\n2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado\n\ncourt’s decision definitively answered the elements-or-means question—and its\n\nanswer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).\n\n\n\n\n 21\n\f In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes\n\n§ 18-18-4058 defines a single offense for double-jeopardy purposes:\n\n Nothing in the specific language of the statute or the history of its\n enactment suggests an intent to create a separate offense for each\n proscribed act. On the contrary, the scope and structure of the proscriptive\n provision, combined with sentencing provisions differentiating\n punishments on the basis of the quantum of drugs (rather than the act)\n involved, strongly points to the creation of a single crime, the gravamen\n of which is preventing the unauthorized delivery of a “particular quantity\n of a particular contraband substance.” . . . . Rather than completely\n separate offenses, the statute strongly suggests an intent to “criminalize\n successive stages of a single undertaking,” . . . “encompass[ing] every act\n and activity which could lead to the proliferation of drug traffic.”\n\n111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.\n\nState, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.\n\nMendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.\n\nGomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely\n\naddressed divisibility by “holding that the state legislature intended to create a single\n\nunitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”\n\nMcKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,\n\nMcKibbon added, Abiodun interpreted the Colorado statute to dole out the same\n\npunishments regardless of “whether a defendant manufactured or distributed or\n\noffered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).\n\n\n 8\n Abiodun reviewed convictions that occurred sometime between 2001 and\n2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and\nwhen § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,\n87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple\npossession only in 2010. See supra note 2.\n\n 22\n\f Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final\n\nsuggestion—“if state law fails to provide clear answers”—allowed the McKibbon\n\ncourt to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,\n\n136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to\n\nviolating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or\n\ndistributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous\n\nrecord indicated that “selling or distributing” a controlled substance were alternative\n\nmeans of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at\n\n2248).9\n\n Madkins and McKibbon thus crafted a general rule: if state law criminalizes\n\nfraudulent offers to sell a controlled substance, then a conviction under that state law\n\nis a categorical mismatch for the guidelines’ generic “controlled substance offense.”\n\nHere, we take their logic another step, into the immigration context. Like the generic\n\n“controlled substance offense” under the guidelines, the generic offense of “illicit\n\ntrafficking in a controlled substance” under the INA encompasses all state offenses\n\nthat are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope\n\nof “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),\n\n\n\n 9\n Madkins also addressed divisibility, but it deemed the Kansas statutes\ndivisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),\n65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded\nguilty to possession with intent to sell cocaine and marijuana. Id. And the court\ndetermined that under Kansas law, these offenses covered possession with the intent\nto offer to sell cocaine and marijuana. See id.\n\n 23\n\fwith McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope\n\nof a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to\n\nMadkins and McKibbon, the felony offenses of distribution and attempted\n\ndistribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.\n\n§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a\n\ncontrolled substance). So, a state statute that proscribes all offers to sell a controlled\n\nsubstance, including fraudulent ones, criminalizes more conduct than (and is a\n\ncategorical mismatch for) the INA’s definition of “illicit trafficking in a controlled\n\nsubstance.” See 8 U.S.C. § 1101(a)(43)(B).\n\n As for the state statute at issue here, McKibbon further tells us that Colorado\n\nRevised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling\n\nor distributing” a controlled substance are alternative means of committing a single\n\noffense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically\n\nrejected the argument that the government makes here: that we can use the modified\n\ncategorical approach to define Almanza-Vigil’s crime of conviction more narrowly,\n\nas “distributing” methamphetamine. See id. at 974–76.\n\n And like in McKibbon, even if we do use the modified categorical approach to\n\n“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was\n\nconvicted of “selling or distributing” methamphetamine. Of the six counts in the\n\ncomplaint, he pleaded guilty to the first:\n\n COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -\n SCHEDULE II (F-3)\n\n\n 24\n\f On or About September 15, 2006, OSCAR ALMANZA-VIGIL\n unlawfully, feloniously, and knowingly sold or distributed\n METHAMPHETAMINE, a schedule II controlled substance; in violation\n of section 18-18-405(1),(2)(a)(I)(A), C.R.S.\n\nSuppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an\n\nindictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as\n\nclear an indication as any that each alternative is only a possible means of\n\ncommission, not an element that the prosecutor must prove to a jury beyond a\n\nreasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,\n\nthe state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.\n\nvol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms\n\nof the charging document, the terms of a plea agreement or transcript of\n\ncolloquy . . . , or to some comparable judicial record of this information.” Shepard,\n\n544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language\n\nin count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”\n\nmethamphetamine. Suppl. R. vol. 2 at 3.\n\n Accordingly, it doesn’t matter whether we apply the categorical approach or\n\nthe modified categorical approach. Either way, Almanza-Vigil’s crime of conviction\n\nis “selling or distributing” a controlled substance in violation of Colorado Revised\n\nStatutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to\n\nsell a controlled substance, it does not categorically match the aggravated felony of\n\n“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”\n\n8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.\n\n\n 25\n\f That leaves a final question: Even though the government misclassified\n\nAlmanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in\n\nexpedited removal proceedings and the denial of any opportunity for discretionary\n\nrelief, can he additionally show that the entry of his previous removal order was\n\n“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).\n\n C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render\n the Entry of his 2009 Removal Order Fundamentally Unfair?\n\n Almanza-Vigil argues that the government’s misclassification of his Colorado\n\nconviction as an aggravated felony prejudiced him because, outside expedited\n\nremoval proceedings, he could have applied for and received relief from removal,\n\nsuch as voluntary departure or cancellation of removal.10\n\n In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous\n\nremoval order was fundamentally unfair to meet a reasonable-likelihood standard.\n\n353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental\n\nunfairness, the noncitizen must establish a reasonable likelihood that, but for the\n\n\n\n\n 10\n We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us\nfrom upholding his removal order on grounds different from those stated in that\norder. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a\ndetermination or judgment which an administrative agency alone is authorized to\nmake, must judge the propriety of such action solely by the grounds invoked by the\nagency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order\nitself unless Almanza-Vigil can establish that the order’s entry was fundamentally\nunfair. And as Almanza-Vigil’s arguments throughout this case show, the\nfundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving\nrelief from removal.\n\n\n 26\n\fcomplained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at\n\n1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).\n\nBut in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating\n\nprejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing\n\nMejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello\n\ncourt quoted Mejia-Rodriguez, where the Eleventh Circuit warned:\n\n An alien’s actual chances of receiving such discretionary relief\n [suspension of deportation]11 are too speculative, and too far beyond the\n capability of judicial review, to conclude that the alien has actually\n suffered prejudice from being ineligible for suspension of\n deportation . . . . Just as a court cannot review the inherently ‘subjective’\n judgments made by the executive in deciding whether to commute a life\n sentence, this Court cannot predict the subjective and fact-intensive\n judgments that the Attorney General would make in deciding whether to\n grant extraordinary relief, such as the suspension of deportation . . . . The\n alien cannot demonstrate prejudice, much less substantial prejudice,\n arising from the ineligibility for such an ‘act of grace’ because no\n standards exist for a court to determine whether the executive would have\n granted the extraordinary relief anyway.\n\nId. (quoting Mejia-Rodriguez, 178 F.3d at 1148).\n\n At the threshold, we disagree with the district court that Almanza-Vigil’s odds\n\nof receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry\n\n“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,\n\n353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning\n\n\n\n\n 11\n Under the current statutory scheme, “suspension of removal” corresponds to\ncancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization\nAct § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).\n\n\n 27\n\fnoncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of\n\nsuccess. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could\n\nhave received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.\n\nAccordingly, we will, too.\n\n We turn to whether, absent the government’s misclassification of his Colorado\n\nconviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of\n\nreceiving either cancellation of removal or voluntary departure.\n\n 1. Cancellation of Removal\n\n The INA gives the Attorney General discretion to cancel the removal of an\n\notherwise-removable, non-permanent-resident “alien” who:\n\n (A) has been physically present in the United States for a continuous\n period of not less than 10 years immediately preceding the date of\n [his] application [for cancellation of removal];\n\n (B) has been a person of good moral character during such period;\n\n (C) has not been convicted of an offense under [8 U.S.C.\n §§ ]1182(a)(2) [including “any law or regulation of a State . . .\n relating to a controlled substance (as defined in section 802 of Title\n 21)”], 1227(a)(2) [including an aggravated felony or “any law or\n regulation of a State . . . relating to a controlled substance”], or\n\n\n\n 12\n Before Congress enacted the Antiterrorism and Effective Death Penalty Act\n(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the\nAttorney General broad discretion to waive deportation for resident noncitizens. See\nINS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of\nnoncitizens eligible for such discretionary relief by identifying “a broad set of\noffenses for which conviction would preclude such relief.” Id. at 297. Later that year,\nCongress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of\n1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting\n“cancellation of removal” for a much narrower class of resident noncitizens. Id.\n\n 28\n\f 1227(a)(3) [failure to register and falsification of documents] . . . ;\n and\n\n (D) establishes that removal would result in exceptional and extremely\n unusual hardship to the alien’s spouse, parent, or child, who is a\n citizen of the United States or an alien lawfully admitted for\n permanent residence.\n\n8 U.S.C. § 1229b(b)(1).\n\n Almanza-Vigil claims that, “had the relevant officials realized his conviction\n\nwas not an aggravated felony,” he would have had a reasonable likelihood of\n\nreceiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the\n\ntestimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”\n\nlaw professor at the University of New Mexico School of Law and a practicing\n\nattorney who has represented hundreds of noncitizens in immigration proceedings. R.\n\nvol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil\n\nwas “eligible for this form of relief” despite having pleaded guilty to “selling or\n\ndistributing” methamphetamine. R. vol. 1 at 206:25–207:1.\n\n We disagree. Though “selling or distributing” methamphetamine is not an\n\naggravated felony under the INA, it does violate “a[] law or regulation of a State . . .\n\nrelating to a controlled substance,” namely, Colorado Revised Statutes\n\n§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado\n\nconviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),\n\nwhich would have disqualified him from receiving cancellation of removal under\n\n8 U.S.C. § 1229b(b)(1)(C).\n\n\n\n 29\n\f 2. Voluntary Departure\n\n Compared to cancellation of removal, voluntary departure is available to a\n\nbroader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and\n\nsome noncitizens “previously permitted to so depart,” from this form of relief. See id.\n\n§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his\n\nown expense instead of commencing, or before completing, removal proceedings. See\n\nid. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who\n\nmeets certain conditions may seek an order from the immigration judge “granting\n\nvoluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,\n\nthe “alien” must:\n\n (A) . . . [have] been physically present in the United States for a period\n of at least one year immediately preceding the date the notice to\n appear was served . . . ;\n\n (B) . . . [be, and have] been, a person of good moral character for at\n least 5 years immediately preceding the alien’s application for\n voluntary departure;\n\n (C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)\n [aggravated-felony convictions] or section 1227(a)(4) [security-\n related grounds, including terrorist activities] . . . ; and\n\n (D) . . . establish[] by clear and convincing evidence that the alien has\n the means to depart the United States and intends to do so.\n\nId.; see also 8 C.F.R. § 1240.26.\n\n Almanza-Vigil’s Colorado conviction was not an aggravated felony, and\n\nnothing in the record suggests that he poses a national-security risk. So, we agree\n\nwith Almanza-Vigil that even with his criminal record, he was eligible to receive\n 30\n\fvoluntary departure in 2009, at least before the completion of removal proceedings.13\n\nBut we disagree that he was reasonably likely to receive it. See Aguirre-Tello,\n\n353 F.3d at 1209.\n\n In exercising their discretion to grant or deny a voluntary-departure\n\napplication, immigration judges balance the applicant’s positive equities, like lengthy\n\nresidence in the United States and close ties to family here, against negative factors,\n\nlike an unfavorable immigration history or a criminal record, and then decide whether\n\nthe applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.\n\nDec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,\n\n917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of\n\n§ 1326(d)’s fundamental-unfairness prong).\n\n Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration\n\njudge considering the equities of his case would have found him worthy of voluntary\n\ndeparture. He had grown up in the United States since age eight; he had learned\n\nEnglish, graduated from high school, and worked a steady job; and he had many\n\n\n\n 13\n Had Almanza-Vigil received voluntary departure either before the end, or at\nthe end, of the removal proceedings, the immigration judge would have entered an\n“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).\nNeither party addressed how such an order might affect subsequent illegal-reentry\nproceedings. But had Almanza-Vigil returned after the entry of such an order, he\nwould have “departed the United States while an order of exclusion, deportation, or\nremoval [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus\nviolating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year\nmaximum prison sentence for those “whose removal was subsequent to a conviction\nfor commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)\n\n 31\n\fcitizen and lawful-permanent-resident family members, including a son born here.\n\nHis “only negative equity” was his conviction for “selling or distributing”\n\nmethamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that\n\nwith the counterweight of his positive factors, Almanza-Vigil “had a reasonable\n\nlikelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at\n\n212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly\n\ntypical to be granted,” absent “some egregious circumstance” (like “[p]rior violations\n\nof other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1\n\nat 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that\n\nhis clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–\n\n13.\n\n In further support, Almanza-Vigil cites cases in which noncitizens with\n\ncriminal records worse than his have won this form of relief. In his best example, In\n\nre: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an\n\nimmigration judge’s decision to grant voluntary departure to an applicant with\n\n“numerous arrests,” four assault convictions (the last of which sent him to prison for\n\nsix months), and one resisting-arrest conviction. 2006 WL 729784, at 1 (BIA\n\nFeb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,\n\nlike his lengthy residence in the country, his participation in Alcoholics Anonymous,\n\nand the testimony of his mother and sister, both U.S. citizens, that he had quit\n\ndrinking and helped his mother pay the bills, the board ruled that the immigration\n\njudge had not abused his discretion. Id. at 1–2.\n\n 32\n\f But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is\n\narguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly\n\nsituated alien would be afforded voluntary departure.” 780 F.3d at 920. The same\n\npoint dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s\n\nchances, nor could he describe any case in which an immigration judge had allowed\n\nsomeone convicted of “selling or distributing” methamphetamine to depart\n\nvoluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”\n\nlikely overall and would have been “reasonably” likely in Almanza-Vigil’s case\n\ncannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was\n\nunfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in\n\nUnited States v. Reyes-Alvares, which involved the same expert witness and a similar\n\nfact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at 1, 5 (D.N.M. Feb. 19,\n\n2016). There, the district court found Vrapi’s examples distinguishable from the case\n\nat bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like\n\ncandy.’” Id. at 6–7 (alterations in original). Even added to decisions like Gonzales-\n\nFigueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil\n\nmight have received voluntary departure had his Colorado conviction been properly\n\nclassified; it doesn’t establish a reasonable likelihood.\n\n Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but\n\nin 2009, when the government issued his removal order, he had just been released\n\nfrom prison for “selling or distributing” methamphetamine—a serious crime in the\n\ncolloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.\n\n 33\n\f§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil\n\noffered no evidence of rehabilitation. See 2006 WL 729784, at 1–2. As a result, he\n\ncan’t meet his burden of showing a “reasonable likelihood that, in deciding who is\n\ndeserving of discretionary relief from deportation among the many aliens eligible for\n\nsuch relief, the Attorney General would grant relief to one so recently convicted of\n\nsuch a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.\n\n We agree with the district court that Almanza-Vigil failed to satisfy the\n\nfundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that\n\ncondition, the INA precludes him from collaterally attacking his 2009 removal order\n\nin the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).\n\n CONCLUSION\n\n For these reasons, we affirm the district court’s judgment.\n\n\n\n\n 34\n[END_CASE]", "role": "user" } ]
4,580,578	Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware ; Jean Ware ; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees, v. ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants.	Davilla v. Enable Midstream Partners L.P.	2019-01-10	17-6088	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Tymkovich, Lucero, Hartz", "parties": "", "opinions": [{"author": "TYMKOVICH, Chief Judge", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH January 10, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nMARCIA W. DAVILLA; BENJAMIN\nBLACKSTAR; THOMAS\nBLACKSTAR, III; VANNETTE M.\nBRANHAM; EDMOND L. CARTER;\nPATRICIA CARTER FILES;\nHAROLD F. DUPOINT; CARRIE G.\nDUPOINT; RUDOLPH W. FISHER,\nJR.; CAMERON KEAHBONE;\nSINDY M. KEAHBONE; GILBERT\nC. KEAHBONE; MARK B.\nKEAHBONE; MARI L. KEAHBONE;\nPERRY K. KEAHBONE; BLAKE E.\nKEAHBONE; PATRICK\nKEAHBONE, JR.; EDBERT E.\nKEAHBONE, JR.; RENA A.\nKILLSFIRST; KATINA S. LIPTON;\nJANICE C. MAMMEDATY;\nAMANDA M. MCCARTHY;\nMICHAEL R. MCCARTHY;\nMAYREDENA M. PALMER;\nRACHEL M. PALMER; MEGAN L.\nPALMER; LAUREN SILVERBIRD;\nANGELA R. SILVERHORN;\nHARVEY E. TUCKER; WILLIAM K.\nWARE; SAMUEL M. WARE;\nMATTHEW M. WARE; BETTY L.\nWARE; COREY WARE; PATRICIA\nWARE; JEAN WARE; WESLEY\nWARE, III; MELVA J. WERMY,\n\n Plaintiffs - Appellees,\nv. No. 17-6088\n\f ENABLE MIDSTREAM PARTNERS\n L.P.; ENABLE G.P., LLC; ENABLE\n OKLAHOMA INTRASTATE\n TRANSMISSION LLC, formerly\n known as Enogex, LLC,\n\n Defendants - Appellants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF OKLAHOMA\n (D.C. NO. 5:15-CV-01262-M)\n\n\nAndrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas,\nwith him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for\nAppellants.\n\nDustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP,\nWashington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP,\nAtlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP,\nWinston-Salem, North Carolina, for Appellees.\n\n\nBefore TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Enable Intrastate Transmission, LLC owns and operates a natural gas\n\npipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year\n\neasement for the pipeline expired in 2000. Enable failed to renew the easement\n\nbut also failed to remove the pipeline. In response, roughly three-dozen\n\n\n\n -2-\n\findividual Native American Allottees—who hold equitable title in the allotted\n\nland—filed this lawsuit.\n\n The district court granted summary judgment to the Allottees, ruling on the\n\nbasis of stipulated facts that Enable was liable for trespass. The court then\n\nenjoined the trespass, ordering Enable to remove the pipeline. Enable appeals\n\nboth rulings, claiming several legal errors. 1\n\n We affirm in part, reverse in part, and remand for further proceedings. The\n\ndistrict court properly granted summary judgment to the Allottees but erred in\n\nissuing the permanent injunction. The availability of equitable relief in this case\n\ndepends on the relative weight of interests not yet considered below. We leave\n\nthose considerations for the district court to determine in the first instance.\n\n I. Background\n\n “After the formation of the United States, the [Indian] tribes became\n\n‘domestic dependent nations,’ subject to plenary control by Congress.” Puerto\n\nRico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016) (quoting United States v.\n\nLara, 541 U.S. 193, 204 (2004)); see also Cty. of Oneida v. Oneida Indian\n\nNation, 470 U.S. 226, 234 (1985) (“With the adoption of the Constitution, Indian\n\n\n\n1\n The Allottees have also filed a motion for partial dismissal of this appeal,\nasserting that we lack jurisdiction over one of the interlocutory orders issued\nbelow. The merits briefing makes clear, however, that Enable does not appeal the\norder in question. We therefore DENY the motion as moot.\n\n -3-\n\frelations became the exclusive province of federal law.”). This “plenary\n\nauthority” includes “full power to legislate concerning . . . tribal property.”\n\nWinton v. Amos, 255 U.S. 373, 391 (1921); see also Ramah Navajo Sch. Bd., Inc.\n\nv. Bureau of Revenue, 458 U.S. 832, 837 (1982) (linking Congress’s “broad\n\n[regulatory] power . . . [over] tribal affairs” to “the Indian Commerce Clause” and\n\n“the semi-autonomous status of Indian tribes” (first citing U.S. Const. art. I, § 8,\n\ncl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142\n\n(1980))). See generally White Mountain, 448 U.S. at 141–45 (explaining the\n\nrelationship between federal, state, and tribal regulatory authority).\n\n Congress exercised that power during the “Allotment Era” of the late-\n\nnineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into\n\nallotments and assign[ing] the land parcels to tribal members.” Pub. Serv. Co. v.\n\nBarboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104–06\n\n(detailing the history of the Allotment Era). This project aimed to promote Indian\n\nassimilation by encouraging private property ownership and agricultural pursuits.\n\nE.g., Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018).\n\n But all did not go according to plan. “[M]any of the early allottees quickly\n\nlost their land through transactions that were unwise or even procured by fraud.”\n\nCty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502\n\nU.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or\n\n\n -4-\n\fencumbrance” in favor of a trust-based model. Id. Through the Dawes Act, ch.\n\n119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act\n\nAmendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,\n\n1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the\n\nPresident to allot reservation land in trust rather than granting immediate, fee\n\nsimple ownership, County of Yakima, 502 U.S. at 254. Under these trust\n\narrangements, the United States retained legal title of allotted parcels while\n\nIndian allottees received equitable title. See id. An allottee could secure a fee\n\nsimple land patent only upon dissolution of the trust, which the government would\n\nallow after a term of years or by special determination. Id. at 254–55.\n\n It was through this program that, in August of 1901, President William\n\nMcKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman\n\nnamed Emaugobah. But Congress’s allotment project “came to an abrupt end . . .\n\nwith passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that\n\nlegislation, “Congress halted further allotments and extended indefinitely the\n\nexisting periods of trust applicable to already allotted (but not yet fee-patented)\n\nIndian lands.” Id. As a result, Emaugobah never received a fee simple patent.\n\nAnd well over a century later, the federal government still holds roughly 136\n\nacres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some\n\nindividual Allottees.\n\n\n -5-\n\f Meanwhile, Congress’s vacillation on Indian land policy left “a\n\ncheckerboard of tribal, individual Indian, and individual non-Indian land\n\ninterests” across Indian country. Barboan, 857 F.3d at 1105. This, in turn,\n\ncreated its own set of problems. As Congress hemmed and hawed over Indian\n\naffairs, the American people headed west and industrialized. The Great\n\nPlains—once passable only by foot, hoof, and wagon—slowly but surely sprouted\n\na network of train tracks, telegraph wires, and other conduits of modern\n\ncommerce. “[T]o help ensure that [such modern] necessities . . . could” span the\n\ncontinent “without encumbrance,” Congress soon enacted a series of\n\n“right-of-way statutes.” Id.\n\n As relevant here, these laws empowered the Secretary of the Interior to\n\napprove easements “for all purposes . . . over and across any lands . . . held in\n\ntrust by the United States for individual Indians or Indian tribes.” 25 U.S.C.\n\n§ 323. But the Secretary could not do so unilaterally. Instead, the Secretary\n\nneeded “the consent of the proper tribal officials” or, where applicable,\n\n“individual Indian owners.” Id. § 324. In the case of allotments shared among\n\nmultiple Indians, the law required consent of a “majority of the [equitable]\n\ninterests” to approve a right-of-way. Id.\n\n In 1980, acting under these provisions, the Secretary allowed conveyance of\n\na twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment.\n\n\n -6-\n\fBy its terms, the easement would allow Producer’s Gas Company to “install . . .\n\nand thereafter use, operate, inspect, repair, maintain, . . . and remove a single\n\nburied [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40.\n\nProducer’s Gas later conveyed both the easement and the pipeline to Enable.\n\n When the easement expired in November 2000, however, Enable’s pipeline\n\nremained buried in the ground. Enable eventually sought a new twenty-year\n\neasement by approaching the Allottees and applying for approval from the Bureau\n\nof Indian Affairs. But the company failed to secure approval for the new\n\neasement from a majority of the equitable interests. Accordingly, the Bureau\n\ncancelled Enable’s right-of-way application. Apparently undeterred, Enable\n\ncontinued to operate the pipeline.\n\n The Allottees eventually sued. Their complaint claimed Enable was\n\ncommitting a trespass and sought a court order compelling the pipeline’s removal.\n\nThe parties agreed on most of the relevant facts, so the Allottees moved for\n\npartial summary judgment on liability for trespass and injunctive relief. The\n\ndistrict court granted the motion. Enable now appeals.\n\n II. Analysis\n\n Enable raises two issues on appeal. First, it argues the district court erred\n\nin granting summary judgment to the Allottees on their trespass claims. Second,\n\nit contends the district court erred in issuing a permanent injunction to enforce the\n\n\n -7-\n\fsummary judgment ruling. We affirm the district court’s entry of summary\n\njudgment. We reverse its entry of a permanent injunction, however, and remand\n\nfor the appropriate weighing of equities.\n\n A. Summary Judgment\n\n We review district court grants of summary judgment de novo. White v.\n\nYork Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same\n\nquestion the district court asked: has discovery yielded a genuine dispute of\n\n“material fact” or is the movant “entitled to judgment” on a claim or issue without\n\nany need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v. Liberty\n\nLobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where the\n\navailable evidence would allow a rational jury to accept either party’s allegation\n\nof a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.\n\n2013). But only facts that “could have an effect on the outcome” of a claim\n\nqualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220\n\nF.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all\n\ninferences in favor of the party opposing a summary judgment motion. See, e.g.,\n\nEagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017).\n\n But it is the law, not the material facts, that complicates this case. When a\n\ndispute arises over possessory rights in Indian allotted land, federal law governs.\n\nSee Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); cf. Clearfield\n\n\n -8-\n\fTr. Co. v. United States, 318 U.S. 363, 366 (1943) (“The rights and duties of the\n\nUnited States on commercial paper which it issues are governed by federal rather\n\nthan local law.”). And although no act of Congress expressly creates a right of\n\naction for trespass on Indian allotted land, the parties agree such a right exists.\n\nSee, Aplt. Br. at 16; Aple. Br. at 15. 2 They do, however, dispute the rules of\n\ndecision. Thus we must determine those rules as a matter of so-called “federal\n\ncommon law.” 3\n\n Because we lack a federal body of trespass law to protect the Allottees’\n\nfederal property interests, we must borrow state law to the extent it comports with\n\nfederal policy. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991);\n\n\n2\n Nahno-Lopez also concerned an alleged trespass on Indian allotted land. See\n625 F.3d at 1282. In that case, however, we affirmed summary judgment to the\ndefendants due to a lack of evidence to prove an essential element. See id. at\n1283. It is therefore unclear whether we have ever formally recognized a federal\nclaim for trespass on an Indian allotment, or simply assumed such a claim’s\nexistence. Cf., e.g., Gohier v. Enright, 186 F.3d 1216, 1220–22 (10th Cir. 1999)\n(disposing of a claim under federal law without deciding whether to recognize\nthat claim).\n3\n Of course, “[t]here is no federal general common law.” Erie R.R. Co. v.\nTompkins, 304 U.S. 64, 78 (1938) (emphasis added). Nevertheless, the federal\ncourts have—confusingly—adopted the label “federal common law” to describe a\ncertain variety of statutory interpretation. See generally Martha A. Field, Sources\nof Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890–97 (1986)\n(explaining the meaning of the term). Within this realm, federal courts drift far\nfrom codified text and interpret congressional silence to include rules of law\nprotecting “uniquely federal interests.” Boyle v. United Techs. Corp., 487 U.S.\n500, 504 (1988) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.\n630, 640 (1981)).\n\n -9-\n\fCalifornia ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283\n\n(1982); United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). The State\n\nof Oklahoma recognizes a right of action in trespass where one person “actual[ly]\n\nphysical[ly] inva[des] . . . the real estate of another without the permission of the\n\nperson lawfully entitled to possession.” Williamson v. Fowler Toyota, Inc., 956\n\nP.2d 858, 862 (Okla. 1998). In other words, a trespass occurs when “one . . .\n\nenters upon the property of another without any right, lawful authority, or express\n\nor implied invitation, permission, or license.” Id. The entry must not be “in the\n\nperformance of any duty to the owner or person in charge or on any business of\n\nsuch person.” Id. Instead, a trespasser comes or remains on land “merely for his\n\nown purposes, pleasure, . . . convenience, or out of curiosity.” Id.\n\n Our reading of Oklahoma law thus yields three elements constituting the\n\nAllottees’ federal trespass claims. First, the Allottees must prove an entitlement\n\nto possession of the allotment. Second, they must prove Enable physically entered\n\nor remained on the allotment. Finally, they must prove Enable lacked a legal\n\nright—express or implied—to enter or remain. The stipulated facts already\n\ndescribed definitively prove the first two elements. Enable takes issue, however,\n\nwith the entry of summary judgment on the third.\n\n\n\n\n -10-\n\f 1. Consent as a Defense to Trespass\n\n Enable contends it has produced evidence of consent sufficient to prove a\n\nlegal right to maintain the pipeline despite the easement’s expiration. See Aplt.\n\nBr. 20–23. Moreover, Enable argues the Allottees’ failure to address this\n\nevidence in their opening summary judgment brief below should have rendered\n\nthe motion insufficient at the outset. See id. at 23–25.\n\n We first address the role of consent in this area of law. In Nahno-Lopez we\n\nconsidered a similar trespass action regarding Indian allotted land. See 625 F.3d\n\n1279. Several individual Comanche had agreed to lease their allotted land to the\n\nFort Sill Apache Tribe for development of a casino parking facility. A\n\ncontroversy then arose among the allottees, the Tribe, and the Bureau of Indian\n\nAffairs regarding the lease’s validity. The allottees sued the Tribe, claiming\n\ntrespass. The district court granted summary judgment to the Tribe.\n\n We affirmed. We reasoned that the Comanche allottees had not offered\n\nrecord evidence sufficient to survive summary judgment. We specifically noted\n\nthe Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to\n\nthe alleged trespass—namely, the lease document and acceptance of rent\n\npayments. See id. at 1280, 1284. Because, in our words, “consent forms a\n\ncomplete defense to trespass” under the incorporated Oklahoma law, we upheld\n\nthe summary judgment order. Id. at 1284.\n\n\n -11-\n\f Enable relies on this language in arguing it has a sufficient fact question\n\nregarding consent. In 2004, Enable obtained written consent forms from five of\n\nthe thirty-seven individual Allottees in this case. The forms show these five\n\nAllottees’ willingness to grant a new right-of-way for the pipeline in exchange for\n\ncash payments. 4 Despite the fact that these Allottees hold less than ten percent of\n\nthe interests in equitable title, Enable contends their consent creates a triable\n\nfactual dispute precluding summary judgment under Nahno-Lopez. See Aplt. Br.\n\nat 21–23. If consent is “a complete defense to trespass,” Enable argues, then\n\nthese forms would allow a reasonable jury to rule against trespass liability.\n\n This argument confuses the law. Admittedly, our concise presentation of\n\n“consent” as a “complete defense to trespass” in Nahno-Lopez somewhat\n\noversimplified the rule. To be sure, the rightful possessor of real property cannot\n\nhold his licensees liable for trespass under Oklahoma law. But this is\n\nbecause—as we have just explained—the defendant’s lack of a right to enter is an\n\nelement of the claim. Accordingly, evidence of a plaintiff’s consent to a\n\ndefendant’s entry on the land will defeat liability in those cases where the\n\nplaintiff’s consent itself creates a right to enter or remain. In such cases, the\n\nclaim will fail for lack of proof on an essential element.\n\n\n4\n The Allottees’ have contested the continued validity of these fourteen-year-old\nforms. See Aple. Br. at 32–33. We assume their validity for the sake of\nargument.\n\n -12-\n\f When it comes to maintaining a pipeline over Indian allotted land, however,\n\nCongress has dictated the prerequisites of a right to enter by statute. Enable thus\n\nhas no legal right to keep a structure on the Allottees’ land unless and until it\n\nsecures a right-of-way for that purpose from the Secretary of the Interior. See 25\n\nU.S.C. § 323. The Secretary must, in turn, have the approval of the relevant\n\nIndian stakeholders. See id. § 324.\n\n The statute notwithstanding, Enable argues “[a] single owner of a tenancy\n\nin common may enter into a lease for the entire co-tenancy property without any\n\nother’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to\n\nequate the Allottees’ interest in the land with a traditional tenancy in common.\n\nBut even if it were, the authorities Enable identifies do not support this bold\n\nassertion. See United States v. Craft, 535 U.S. 274, 280 (2002) (explaining, in\n\ndicta, that under traditional English common law, cotenants “may each\n\nunilaterally alienate [or encumber] their shares” but also have “the right to . . .\n\nexclude third parties from” the property (emphasis added)); Anderson v. Dyco\n\nPetroleum Corp., 782 P.2d 1367, 1371–72 & n.8 (Okla. 1989) (holding that\n\ncotenants in the “working interest in [a] natural gas well” may each “market\n\nproduction from the well and . . . [sell] gas to a purchaser . . . without consent of\n\nother cotenants,” id. at 1371). More to the point, those authorities fall well short\n\nof holding that one cotenant has no right of action for trespass under Oklahoma\n\n\n -13-\n\flaw when another cotenant—much less a small minority of cotenancy interests—\n\nhas agreed to a right-of-way easement. And though we have found no Oklahoma\n\nauthority directly on point, other jurisdictions have adopted a directly opposite\n\nview. See, e.g., Burnham v. Balt. Gas & Elec. Co., 144 A.2d 80, 87 (Md. 1958)\n\n(“The authorities appear to be uniform in holding that a cotenant cannot by\n\nhimself grant an easement that will bind his cotenants.”).\n\n Moreover, even if Oklahoma would say that this evidence could defeat any\n\ntrespass claim, we would not incorporate such a rule into the Allottees’ federal\n\nright of action. As we explained above, federal courts should only incorporate\n\nstate rules of decision into federal claims to the extent those rules are consistent\n\nwith federal law and policy. See, e.g., Kamen, 500 U.S. at 98. Needless to say,\n\nsecuring the approval of a majority of beneficial interests plus the government\n\npresents a greater challenge than getting the consent of just a few minority\n\nstakeholders. Thus, if the consent of a minority of interests in equitable title\n\ncould defeat any federal claim for trespass on an Indian allotment, there would be\n\nno point to fulfilling the more stringent requirements of securing a right-of-way\n\nunder federal statute. Adopting Enable’s view would therefore frustrate federal\n\nIndian land policy, effectively robbing Indian allottees and the government of\n\nmeaningful control over alienation. We thus reject Enable’s theory of consent.\n\n\n\n\n -14-\n\f In light of this conclusion, Enable’s proffered evidence plainly does not\n\nwarrant reversal of the district court’s summary judgment ruling. The undisputed\n\nfacts—expiration of the easement, specifically—show that Enable lacks a legal\n\nright to keep the pipeline in the ground. The consent forms would not allow a\n\nreasonable jury to find otherwise.\n\n The Allottees’ briefing below did not bar the district court from reaching\n\nthis conclusion either. To be sure, the Allottees had to show liability was\n\n“appropriate as a matter of law” to support summary judgment. Trainor v. Apollo\n\nMetal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). And they did not\n\nmention the consent evidence in their initial motion. But the consent evidence\n\nwould not have contributed to the initial showing of liability. Thus, because the\n\nAllottees raised the stipulated facts that the easement had expired and not been\n\nrenewed, the onus fell to Enable to put its right to entry at issue. See Anderson v.\n\nDep’t of Heath & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990).\n\n Nor did the district court exceed its discretion by allowing the Allottees to\n\nfile a reply brief addressing consent after Enable raised the issue. See Beaird v.\n\nSeagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998) (applying the abuse of\n\ndiscretion standard). Enable had a full opportunity to brief the issue—indeed, it\n\nraised the issue itself. More importantly, Enable gives no indication that it\n\nsought and was denied an opportunity to file a surreply. Thus, the court below\n\n\n -15-\n\fhad every right to reach and resolve this issue. See Jencks v. Modern Woodmen of\n\nAm., 479 F.3d 1261, 1268–69 (10th Cir. 2007).\n\n 2. Demand for Removal\n\n Enable also argues that no duty to remove the pipeline ever arose—\n\nexpiration of the easement notwithstanding—because the Allottees never\n\ndemanded that Enable remove the pipeline.\n\n We note first that Enable failed to raise this argument below. A litigant\n\nmust preserve an issue for appellate review by pressing it in the trial court. See,\n\ne.g., Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017).\n\nAnd because Enable has not raised it under the plain error standard here, we have\n\nno obligation to address it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,\n\n1130–31 (10th Cir. 2011).\n\n Recognizing this problem, Enable has attempted to shift blame to the\n\nAllottees. According to Enable, the Allottees could only secure summary\n\njudgment if they briefed all elements of their trespass claim—including demand\n\nfor removal. See Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system\n\ndoes not work that way. To be sure, a party seeking summary judgment must\n\nshow the law and available evidence compel the requested outcome. See Fed. R.\n\nCiv. P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Neal v. Lewis,\n\n414 F.3d 1244, 1248 (10th Cir. 2005); Reed v. Bennett, 312 F.3d 1190, 1194 (10th\n\n\n -16-\n\fCir. 2002). And to do so, he must necessarily identify governing legal principles.\n\nBut even an erroneous or incomplete view of the law can support summary\n\njudgment against a party that fails to contest it. Indeed, our courts act only as\n\n“neutral arbiter[s] of matters the parties present.” Greenlaw v. United States, 554\n\nU.S. 237, 243, 128 (2008). Thus, the movant’s burden of production at the\n\nsummary judgment stage does not abrogate the nonmovant’s obligation to contest\n\nmatters of law. If it did, district court review of summary judgment motions\n\nwould become a waste of time in many instances. See Wright v. Experian Info.\n\nSols., Inc., 805 F.3d 1232, 1244 n.6 (10th Cir. 2015).\n\n But Enable’s forfeiture does not prevent us from definitively rejecting its\n\ndemand argument on the merits. See, e.g., United States v. Jarvis, 499 F.3d 1196,\n\n1201 (10th Cir. 2007); see also Champagne Metals v. Ken-Mac Metals, Inc., 458\n\nF.3d 1073, 1088 (10th Cir. 2006) (declaring our court’s discretion to affirm on\n\nany sufficient ground the parties have had an opportunity to address). And in the\n\ninterest of clarifying the law, we think it appropriate to do so. Cf. Jarvis, 499\n\nF.3d at 1202.\n\n Again, we incorporate Oklahoma law into this federal claim so long as it\n\ndoes not frustrate federal policy. See, e.g., Kamen, 500 U.S. at 98. And we begin\n\nby noting the absence of any Oklahoma case establishing a demand requirement.\n\nSee Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A., 496 P.2d\n\n\n -17-\n\f1185, 1187 (Okla. 1972) (specifically considering a trespass by means of a\n\npermanent physical invasion of dirt fill); Russell v. Williams, 964 P.2d 231 (Okla.\n\nCiv. App. 1998) (considering trespass by a portion of a modular home); see also\n\nFrank v. Mayberry, 985 P.2d 773, 775–76 (Okla. 1999) (often cited as explaining\n\nOklahoma’s law of trespass); Williamson, 956 P.2d at 862 (same).\n\n Moreover, even assuming—as Enable urges—that Oklahoma follows the\n\nRestatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank, 985 P.2d\n\nat 776 (noting that the Oklahoma Supreme Court has “quoted [the Second\n\nRestatement] with approval,” rather than adopting it), the argument still fails.\n\nThe Restatement provides that “the continued presence on the land of a structure\n\n. . . which the actor . . . has placed” there “with the consent of” the lawful\n\npossessor constitutes a trespass “if the actor fails to remove it after the consent\n\nhas been effectively terminated.” Restatement (Second) of Torts § 160 (Am. Law\n\nInst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is\n\nplaced on the land with the possessor’s consent conditioned upon the actor’s\n\nsubsequently removing it, the termination of consent creates a duty to remove it.”\n\nId. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by\n\nwhich the consent is restricted” terminates consent. Id. § 171(a).\n\n According to these rules, the easement’s expiration created a duty to\n\nremove the pipeline. Permission to lay and maintain the pipeline came\n\n\n -18-\n\fhand-in-hand with an obligation to remove it. See App. 40 (granting the easement\n\nto “install . . . and remove” the pipeline within a term of twenty years); cf. 25\n\nC.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to\n\nrestore the land to its original condition). Indeed, there would have been no sense\n\nin limiting the easement term to twenty years otherwise. The Restatement would\n\ntherefore not impose a separate obligation to demand removal on these facts. 5\n\n To be sure, had the Allottees refused to allow Enable to remove the\n\npipeline, the Restatement might have forbidden liability for trespass. See\n\nRestatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no\n\nreason to believe the Allottees have ever prevented removal of the pipeline.\n\nInstead, Enable espouses the view that it would have incurred trespass liability for\n\nattempting to remove the pipeline unless and until the Allottees made a removal\n\ndemand. This argument mischaracterizes the right-of-way grant and misstates\n\nOklahoma law. Both allowed Enable to enter the land to remove the pipeline at\n\nleast within the easement term, if not beyond it. See App. 40; Williamson, 956\n\nP.2d at 862.\n\n Ignoring these issues, Enable focuses on rules pertaining to structures\n\n“tortiously placed” on land and subsequently transferred to new owners. See\n\n\n\n5\n For that matter, the complaint filed in district court acted as a demand for\nremoval.\n\n -19-\n\fAplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course,\n\nProducer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on\n\nthe land; it constructed the pipeline with permission. And the fact that Enable\n\nkept the pipeline on the land without permission does not render the initial\n\nplacement tortious. Moreover, the only transfer of the pipeline occurred during\n\nthe easement term, at which point the parties agree the pipeline’s presence was\n\nstill lawful. Finally, even assuming this case had involved a transfer after\n\nexpiration of the easement, the Restatement makes clear that notice of a duty to\n\nremove—for instance, through the terms of an easement contract—binds the\n\ntransferee. See Restatement (Second) of Torts § 161(2).\n\n Finally, Enable errs by relying on the Ninth Circuit’s decision in United\n\nStates v. Milner, 583 F.3d 1174 (9th Cir. 2009), to bolster its position. In Milner,\n\nthe Ninth Circuit considered an alleged federal trespass by anti-erosion structures\n\noriginally placed on privately owned tidal uplands in Washington State. The\n\nboundary between the uplands and adjacent Indian tidelands had shifted with the\n\ngradual change of the mean high water mark over the course of several years.\n\nEventually, the boundary line shifted so far that the stationary anti-erosion\n\nstructures began encroaching on the tribal tideland. In defense against a trespass\n\nclaim, the upland owners argued they lacked the intent necessary to commit a\n\ntrespass. The Ninth Circuit rejected this argument, reasoning that intent followed\n\n\n -20-\n\frefusal to remove the structures despite notice of a duty to remove. That notice,\n\nsaid the court, followed the United States’ demand for removal as legal title\n\nholder. See id. at 1190–91.\n\n Even if we assumed the legal principles the Ninth Circuit applied in Milner\n\nhad bearing on this case, 6 they would not support Enable’s argument for a demand\n\nelement. As we have explained, Enable acquired the pipeline already knowing\n\nthe right-of-way would eventually expire. It therefore cannot—and indeed does\n\nnot—claim it lacked notice of its duty to remove or intent to maintain the\n\ntrespass.\n\n We thus reject Enable’s contention that the Allottees had to demand\n\nremoval of the pipeline for trespass liability to arise.\n\n ***\n\n\n\n\n6\n The Milner court applied the Restatement (Second) of Torts under the\nsomewhat ambiguous reasoning that both federal precedent and borrowed\nprecedent from the State of Washington supported that application. See United\nStates v. Milner, 583 F.3d 1174, 1182–83 & n.6 (9th Cir. 2009). The Restatement\nclassifies trespass traditionally as an intentional tort, see Restatement (Second) of\nTorts § 158, with “intent” meaning a “desire[] to cause consequences of” the act\nin question “or . . . belie[f] that the consequences are substantially certain to\nresult,” id. § 8A. It is worth noting, however, that the Oklahoma courts have yet\nto develop a jurisprudence of intent with regard to real property trespass.\nNevertheless, because Enable has never made an issue of it, the place of intent in\nOklahoma tort law and, consequently, federal trespass law, does not bear on our\nanalysis.\n\n -21-\n\f In sum, Enable’s arguments against summary judgment fail under the\n\nincorporated trespass law of Oklahoma. And Enable has not argued for any\n\nconflict between that law, as we understand it, and federal policy regarding Indian\n\nallotted land. We therefore affirm the district court’s grant of summary judgment.\n\n B. Permanent Injunction\n\n The Allottees’ success on the merits notwithstanding, Enable argues the\n\ndistrict court applied the wrong legal standard in determining whether to issue a\n\npermanent injunction. According to Enable, the district court incorporated a\n\nsimplified injunction rule from Oklahoma law when it should have adhered to\n\nbasic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. 7\n\n We agree. By failing to apply the federal courts’ traditional equity\n\njurisprudence to its remedy analysis, the court below committed an error of law\n\nand thus abused its equitable discretion. Accordingly, we must reverse the\n\ninjunction order and remand for a full weighing of the equities.\n\n Federal district courts have the power to order injunctive relief when equity\n\nso requires. See Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d\n\n1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power\n\n\n\n7\n The Allottees contend Enable forfeited this argument by failing to raise it\nbelow. See Aple. Br. at 34–35. Our review of the briefing below, however,\nreveals that Enable did not acquiesce to the Allottees’ proposed automatic-\ninjunction rule and instead argued for the typical four-factor analysis.\n\n -22-\n\ffor abuse of discretion only. See, e.g., id. As always, however, a district court\n\nabuses its discretion when it “bases its decision on an erroneous conclusion of\n\nlaw.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)\n\n(quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,\n\n1224 (10th Cir. 2008)).\n\n In this case, the district court relied primarily on Oklahoma law—with\n\nsupplemental authority from other federal courts—to conclude that “equity will\n\nrestrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery, 496 P.2d\n\nat 1187). 8 As a result, it did not apply the usual four-factor test guiding federal\n\ncourts’ grant of permanent injunctive relief. See, e.g., eBay Inc. v.\n\nMercExchange, L. L. C., 547 U.S. 388, 391 (2006); Kitchen v. Herbert, 755 F.3d\n\n1193, 1208 (10th Cir. 2014). Though it observed “some courts have declined to\n\nenter an injunction when the trespass was unintentional and when the landowner”\n\ndelays objection, it did not think such issues at play in this case. App. 269. Thus,\n\n\n\n\n8\n Where a refusal to remove a permanent structure effects the invasion of real\nproperty, it constitutes a “continuing trespass” under Oklahoma law. Fairlawn\nCemetery, 496 P.2d at 1187. “Continuing trespass” is not a distinct legal wrong.\nRather, the ongoing, unabating nature of certain trespasses continuously gives rise\nto causes of action that the victim can sue on, and eventually can support\nequitable relief. See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944); see also\nBradley v. Renfrow, 84 P.2d 430, 431 (Okla. 1938) (describing an allegation of\ncontinuing trespass as supporting pursuit of equitable relief).\n\n -23-\n\fwith no further weighing of the equities, the court ordered Enable to remove the\n\npipeline.\n\n Generally, federal courts adopt state law even when the dispute is\n\n“governed exclusively by federal [common] law.” See United States v. Turley,\n\n878 F.3d 953, 957 (10th Cir. 2017). “Indeed, there is a ‘presumption that state\n\nlaw should be incorporated into federal common law.’” Id. (citing Kamen v.\n\nKemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)). This is partly because courts\n\nare hesitant, and for good reason, to create federal common law rules that are\n\n“wholly the product of a federal court’s own devising.” See Kamen, 500 U.S. at\n\n98; United States v. Yazell, 382 U.S. 341, 353 (1966) (declining to “invent” a\n\nfederal common law rule and “impose it upon the States”). Such policy, even\n\nwhen applied to cases arising under federal common law rather than diversity\n\njurisdiction, supports “the twin aims of the Erie rule: discouragement of forum-\n\nshopping and avoidance of inequitable administration of the laws.” Hanna v.\n\nPlumer, 380 U.S. 460, 468 (1965).\n\n But federal courts do not mechanically apply state law in every\n\ncircumstance. “Whether to adopt state law or to fashion a nationwide federal rule\n\nis a matter of judicial policy ‘dependent upon a variety of considerations.’”\n\nUnited States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (citation omitted).\n\nAnd to guide this judicial policymaking, the Supreme Court has indicated that\n\n\n -24-\n\ffederal courts should consider (1) “whether application of state law would\n\nfrustrate specific” federal interests, (2) whether there is a “need for a nationally\n\nuniform body of law,” and (3) other considerations such as whether “application\n\nof a federal rule would disrupt commercial relationships predicated on state law.”\n\nId. at 728–29; see also Kamen, 500 U.S. at 98. The considerations in this case\n\nlead us to conclude that the district court erred in applying Oklahoma rather than\n\nfederal remedial law.\n\n The district court erred because the circumstances presented here reveal “a\n\ndistinct need for nationwide legal standards.” Kamen, 500 U.S. at 98. As already\n\nexplained, Congress provided a way for the Secretary of the Interior to approve\n\neasements “over and across any lands . . . held in trust by the United States for\n\nindividual Indians or Indian tribes.” 25 U.S.C. § 323. This right-of-way statute\n\nwas “to help ensure that necessities such as telegraph lines and roads could\n\ncontinue without encumbrance.” Pub. Serv. Co. of New Mexico v. Barboan, 857\n\nF.3d 1101, 1105 (10th Cir. 2017). While this does not rise to the level of creating\n\na federal interest that federal common law should manage, the nationwide\n\napplication of this right-of-way statute suggests a need for a uniform federal\n\nstandard.\n\n This uniform standard is necessary because the Secretary has undoubtedly\n\napproved easements over and across Indian land in multiple states. And since\n\n\n -25-\n\fmany of these easements are likely for a limited duration, these easements—for\n\npipelines, telecommunication lines, and roads—like the easement at issue here,\n\nmay fail to receive consent to renew by a “majority of the [equitable] interests”\n\nand may therefore be subject to an order of removal. See id. § 324. This prospect\n\nshows the distinct need for easement holders to be subject to the same standard\n\nfor when an equitable remedy is required and when a legal remedy is\n\nsufficient—regardless of where the easement is located. Otherwise, an easement\n\nholder in Oklahoma and one in Kansas could be subject to differing permanent\n\ninjunction standards despite both receiving an easement from the Secretary of the\n\nInterior pursuant to the same federal program.\n\n We therefore conclude that the district court erred in failing to apply the\n\nfederal permanent-injunction standard even though it properly applied Oklahoma\n\ntrespass law. This is because our jurisprudence distinguishes between matters of\n\nright and matters of remedy. The Supreme Court has concluded that “State law\n\ncannot define the remedies which a federal court must give” and that “a federal\n\ncourt may afford an equitable remedy for a substantive right recognized by a State\n\neven though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York, 326\n\nU.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does\n\nnot apply with equal force to determining appropriate remedies, especially\n\nequitable remedies, as it does to defining actionable rights.\n\n\n -26-\n\f Moreover, applying the federal permanent-injunction standard differs\n\nsignificantly from applying the federal common law of trespass. As explained,\n\nfederal courts lack a body of federal trespass law to protect the Allottees’ federal\n\nproperty interests. So applying federal trespass law would require our court to\n\nconstruct rules entirely of this court’s creation. We accordingly borrow a body of\n\nwell-developed state law to the extent it does not conflict with federal policy.\n\nThese same considerations are not present when seeking to apply federal equitable\n\nremedies, however. Applying federal remedial law does not require this court to\n\ncreate federal common law or even to “fill the interstices of federal remedial\n\nschemes” with the court’s own rules. See Kamen, 500 U.S. at 98 (declining to\n\nfashion federal rules to fill gaps in federal statutory remedial scheme); Kimbell\n\nFoods, 440 U.S. at 728 (same).\n\n This is because the federal judiciary already has a well-developed body of\n\nlaw regarding equitable remedies to guide judicial discretion. The Supreme Court\n\nhas repeatedly weighed in on the standard federal courts apply when granting or\n\ndenying a permanent injunction. See, e.g., eBay Inc. v. MercExchange, L.L.C.,\n\n547 U.S 388, 391 (2006); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,\n\n541–42 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). In each\n\ncase the Supreme Court set out the proper standard for granting a permanent\n\ninjunction and chastised the circuit court for granting equitable relief based solely\n\n\n -27-\n\fon success on the merits. See Weinberger, 456 U.S. at 311–312 (“It goes without\n\nsaying that an injunction is an equitable remedy [that] . . . ‘is not a remedy which\n\nissues as of course.’”) (citation omitted). We may therefore apply a well-\n\ndeveloped federal common law standard for issuing a permanent injunction that\n\nwill fulfill the “distinct need for nationwide legal standards” called for in this\n\ncase. Kamen, 500 U.S. at 98.\n\n Thus, a federal district court’s decision to permanently enjoin a continuing\n\ntrespass on allotted land should take into account (1) whether an injunction is\n\nnecessary to prevent “irreparable harm,” (2) whether “the threatened injury\n\noutweighs the harm that the injunction may cause” to the enjoined party, and (3)\n\nwhether the injunction would “adversely affect the public interest.” Kitchen v.\n\nHerbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (quoting Sw. Stainless, LP v.\n\nSappington, 582 F.3d 1176, 1191 (10th Cir. 2009)). 9 Accordingly, by ordering\n\nEnable to remove the pipeline on the basis of liability alone, the district court\n\nlegally erred and thus abused its discretion.\n\n The Allottees’ attempts to escape this conclusion do not persuade us. First,\n\nthey argue the district court did not, in fact, apply a simplified rule. Instead, they\n\n\n\n9\n We acknowledge that our circuit’s articulation of the rule differs slightly from\nthat of the Supreme Court in eBay. Compare Kitchen, 755 F.3d at 1208, with\neBay, 547 U.S. at 393. But the subtle differences are not at issue, and we think\nthe two articulations capture the same considerations in any event.\n\n -28-\n\fclaim the court merely applied the usual rule to simplified facts. See Aple. Br.\n\n35–38. But we see little support for this reading. The court below made no\n\nmention of the appropriate equitable considerations. Indeed, it went to great\n\nlengths to justify its analysis as legally, rather than just factually, appropriate.\n\n Second, the Allottees invite us to affirm the district court even if it applied\n\nincorrect law, claiming the record clearly warrants relief regardless. See Aple.\n\nBr. at 38–41. But though—as we have already noted—we may generally affirm a\n\ndistrict court order on any sufficient grounds the parties have had an opportunity\n\nto brief, see Champagne Metals, 458 F.3d at 1088, we resist that invitation. The\n\ndiscretion to issue a permanent injunction in this case rests with the district court,\n\nnot us. Cf., e.g., Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1191\n\n(10th Cir. 2005). And just because we think the district court could have issued a\n\npermanent injunction under the proper test does not mean we can ignore an error\n\nof law and resolve the issue on appeal. “Injunctive relief is, by its very nature,\n\nfact-sensitive and case-specific.” New Comm Wireless Servs., Inc. v. SprintCom,\n\nInc., 287 F.3d 1, 13 (1st Cir. 2002). Thus our court should generally refrain from\n\n“uphold[ing] a preliminary injunction on a ground that was not fully addressed”\n\nbelow. Id.\n\n Moreover, if we did endeavor to balance the equities ourselves, we would\n\nnot get very far. As the above makes clear, the sheer right to exclude simply\n\n\n -29-\n\fcannot begin and end the equitable analysis. Cf. eBay, 547 U.S. at 392–93. And\n\nthe Allottees do not explain how the pipeline’s presence works “irreparable harm”\n\notherwise. Kitchen, 755 F.3d at 1208 (quoting Sappington, 582 F.3d at 1191).\n\nMore importantly, without further evidence—which the Allottees have never\n\nproffered—we have no way of knowing the relative costs and benefits of Enable\n\nremoving the pipeline, either as they pertain to these parties or the public at large.\n\nTo the extent the Allottees have addressed these concerns, their arguments have\n\noffered legal analysis in lieu of pertinent facts. See App. 120–23; Aple. Br. at\n\n38–41. In short, we will not assume the equities support injunctive relief in this\n\ncase, or whether the district court would in fact award such relief under governing\n\nlaw.\n\n In sum, we must remand the decision to the district court to weigh the\n\nequities in the first instance. 10\n\n III. Conclusion\n\n For the reasons stated above, we AFFIRM the district court’s grant of\n\nsummary judgment to the Allottees, REVERSE the entry of the permanent\n\ninjunction, and REMAND for further proceedings.\n\n\n\n\n10\n As a result, we do not reach Enable’s challenge to the district court’s\ncompliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at\n28–30.\n\n -30-\n\f17-6088, Davilla v. Enable Midstream Partners\nHARTZ, Circuit Judge, concurrence and partial dissent:\n Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion.\n\nWhere I differ from the panel opinion is that I would apply the state law of Oklahoma,\n\nrather than federal law, to determine the remedy for Enable’s trespass. Because the panel\n\nopinion covers the ground so well, my discussion can be relatively brief.\n\n The dispute in this case concerns about 1300 feet of natural-gas pipeline that is\n\npart of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is\n\npart of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that\n\nthis quarter-mile pipeline segment trespasses property held in trust for them by the United\n\nStates. Because of the interest of the federal government, federal law governs. But there\n\nis no applicable federal trespass statute, so we decide this case as a matter of federal\n\ncommon law. As a general rule, federal common law regarding interests in real property\n\nadopts the law of the state where the property is located. See United States v. Turley, 878\n\nF.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and\n\nwith greater confidence when the government’s counterparty knows it can rely on the\n\nlocal law with which it (or its attorney) is familiar.\n\n The dispute before us, however, does require some consideration of federal\n\nstatutory law. Easements for rights-of-way over what can be described, roughly\n\nspeaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how\n\nconsent to a right-of-way must be obtained, ordinarily through approval of the majority\n\nownership interest of the known property owners (or tribal officials, if the land is tribal\n\fland), see id. at § 324. The easement for the pipeline in this case explicitly cites to those\n\nstatutory provisions. Much of the panel opinion, with which I fully agree, explains why\n\nwe believe that such consent had lapsed for the pertinent portion of Enable’s easement.\n\n But consent is only one element of a trespass claim. For the other elements,\n\nOklahoma law governs. That choice of law makes particularly good sense here. The\n\nrecord does not show how much of the 100-mile pipeline or the 2200-mile pipeline\n\nsystem crosses land held in trust by the United States and how much of it crosses land\n\nthat is privately owned. But all of it is within Oklahoma, and surely it facilitates\n\ncommerce to have a single legal regime govern what happens when a pipeline crosses\n\nland without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma\n\nlaw governs the requirements of notice and demand to the trespasser.\n\n Where I depart from the majority is regarding the law governing whether a\n\npermanent injunction should issue. In my view, we should continue to apply Oklahoma\n\nlaw on that issue. As one leading treatise has stated, “Rights and remedies are closely\n\ninterrelated concepts; to deviate from the state’s definition of the latter often also would\n\nchange the former.” Wright & Miller § 4513 at 567. That statement appears in a\n\ndiscussion of the Erie doctrine, explaining why in diversity cases federal courts should\n\nordinarily look to state law in determining what remedy is appropriate, even when\n\nconsidering equitable remedies. But the point applies here as well. Once the federal\n\ncourt has decided that federal common law should incorporate state law regarding a cause\n\nof action, the same considerations should ordinarily counsel in favor of incorporating\n\nstate law regarding the remedies available for that cause of action.\n\n\n 2\n\f The majority believes that there are good reasons not to follow that approach here.\n\nThe panel opinion states that there is “‘a distinct need for nationwide legal standards’”\n\nwith respect to the remedy in this case. Maj. Op. at 25 (quoting Kamen v. Kemper Fin.\n\nServs., Inc., 500 U.S. 90, 98 (1991)). It points out that the federal statute at issue here\n\npermits rights-of-way on Indian land “to help ensure that necessities such as telegraph\n\nlines and roads could continue without encumbrance.” Pub. Serv. Co. of New Mexico v.\n\nBarboan, 857 F.3d 1101, 1105 (10th Cir. 2017). It reasons that because the statute\n\napplies in multiple states, fulfilling this purpose requires a uniform federal standard.\n\n I am not persuaded. There is certainly a federal interest in uniform national\n\napplication of the federal statutes that govern whether there has been valid consent to an\n\neasement over Indian land. But once, as here, it has been determined that there has not\n\nbeen compliance with the statute, that interest in uniformity has been served. We begin\n\nwith a “‘presumption that state law should be incorporated into federal common law.’”\n\nUnited States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017) (quoting Kamen, 500 U.S. at\n\n98)). That presumption has not been rebutted here.\n\n I see no reason why local law should not determine what consequences flow\n\nwhen the former beneficiary of an easement loses its rights to the easement. The district\n\ncourt construed Oklahoma law as giving the victim of a continuing trespass an automatic\n\nright to obtain an order requiring the trespasser to remove the offending property. In the\n\ncircumstances here, that means that Enable must remove its pipeline. What that amounts\n\nto in practice—since removal of the pipeline apparently would not benefit the landowners\n\n—is that the landowners have increased bargaining power in determining what Enable\n\n\n 3\n\fmust pay to continue the easement. This is an inherent and important component of the\n\nsubstantive rights provided to Oklahoma property owners. The purposes behind the\n\nfederal statutes at issue here relate only to providing a reasonable mechanism for\n\nobtaining consent to an easement from Indian landowners. They say nothing about how\n\nmuch bargaining power landowners should have in negotiating with those seeking\n\neasements. In colloquial terms, the federal government has no dog in that fight. This is\n\nnot a case, for example, where the easement was granted under a federal condemnation\n\nstatute. In that circumstance the federal interest in having a pipeline cross the property\n\nmight weigh against requiring the former easement holder to remove the pipeline from\n\nthe burdened land. But in the present circumstance there is no such federal interest. Why\n\nshould remedial rights of Indian landowners be different from those of other landowners\n\nwho granted easements to Enable for the same pipeline? In particular, why should the\n\nIndian landowners have less bargaining power to negotiate a new easement price than do\n\nthe other landowners, who can rely on Oklahoma state law when Enable trespasses on\n\ntheir land?\n\n I acknowledge that there is problematic language in Guaranty Trust Co. of N.Y. v.\n\nYork, 326 U.S. 99 (1945), a diversity case. But as discussed at length in a leading\n\ntreatise, the Supreme Court’s language is obscure, and it is far from clear that federal\n\ncourts have independent authority (aside from constitutional provisions and federal rules\n\nof procedure) to reject state equitable principles in diversity cases. See Wright & Miller\n\n§ 4513; id. at 567 (“as a general rule, when forum state law defines the underlying\n\nsubstantive right, state law also governs the availability of such equitable remedies as a\n\n\n 4\n\fpermanent injunction”). I would refrain from incorporating the difficulty of Guaranty\n\nTrust into federal-common-law doctrine when that doctrine appears to provide the means\n\nto resolve the issue before us.\n\n Also, I respectfully disagree with the panel opinion’s view that this case is\n\ngoverned by Supreme Court authority governing the availability of permanent injunctions\n\nas a remedy for federal statutory claims, as in eBay Inc. v. MercExchange, LLC, 547 U.S.\n\n388, 391 (2006) (infringement suit under the Patent Act); Amoco Prod. Co. v. Vill. of\n\nGambell, AK, 480 U.S. 531, 541–42 (1987) (preliminary injunction for violation of\n\nAlaska National Interest Lands Conservation Act); and Weinberger v. Romero-Barcello,\n\n456 U.S. 305 (1982) (violation of Federal Water Pollution Control Act). In that context,\n\none can presume that when Congress enacts a statutory cause of action it recognizes that\n\ntraditional equitable relief is available. See Weinberger, 456 U.S. at 313. Here, however,\n\nthere is no federal statutory cause of action.\n\n I hesitate to dissent from what I consider to be a fine opinion. But we are plowing\n\nnew ground here, and I think it useful to express some of the considerations that may\n\ncounsel a different approach.\n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357831/", "author_raw": "TYMKOVICH, Chief Judge"}]}	TYMKOVICH	LUCERO	HARTZ	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4580578/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware ; Jean Ware ; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees, v. ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH January 10, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nMARCIA W. DAVILLA; BENJAMIN\nBLACKSTAR; THOMAS\nBLACKSTAR, III; VANNETTE M.\nBRANHAM; EDMOND L. CARTER;\nPATRICIA CARTER FILES;\nHAROLD F. DUPOINT; CARRIE G.\nDUPOINT; RUDOLPH W. FISHER,\nJR.; CAMERON KEAHBONE;\nSINDY M. KEAHBONE; GILBERT\nC. KEAHBONE; MARK B.\nKEAHBONE; MARI L. KEAHBONE;\nPERRY K. KEAHBONE; BLAKE E.\nKEAHBONE; PATRICK\nKEAHBONE, JR.; EDBERT E.\nKEAHBONE, JR.; RENA A.\nKILLSFIRST; KATINA S. LIPTON;\nJANICE C. MAMMEDATY;\nAMANDA M. MCCARTHY;\nMICHAEL R. MCCARTHY;\nMAYREDENA M. PALMER;\nRACHEL M. PALMER; MEGAN L.\nPALMER; LAUREN SILVERBIRD;\nANGELA R. SILVERHORN;\nHARVEY E. TUCKER; WILLIAM K.\nWARE; SAMUEL M. WARE;\nMATTHEW M. WARE; BETTY L.\nWARE; COREY WARE; PATRICIA\nWARE; JEAN WARE; WESLEY\nWARE, III; MELVA J. WERMY,\n\n Plaintiffs - Appellees,\nv. No. 17-6088\n\f ENABLE MIDSTREAM PARTNERS\n L.P.; ENABLE G.P., LLC; ENABLE\n OKLAHOMA INTRASTATE\n TRANSMISSION LLC, formerly\n known as Enogex, LLC,\n\n Defendants - Appellants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF OKLAHOMA\n (D.C. NO. 5:15-CV-01262-M)\n\n\nAndrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas,\nwith him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for\nAppellants.\n\nDustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP,\nWashington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP,\nAtlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP,\nWinston-Salem, North Carolina, for Appellees.\n\n\nBefore TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Enable Intrastate Transmission, LLC owns and operates a natural gas\n\npipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year\n\neasement for the pipeline expired in 2000. Enable failed to renew the easement\n\nbut also failed to remove the pipeline. In response, roughly three-dozen\n\n\n\n -2-\n\findividual Native American Allottees—who hold equitable title in the allotted\n\nland—filed this lawsuit.\n\n The district court granted summary judgment to the Allottees, ruling on the\n\nbasis of stipulated facts that Enable was liable for trespass. The court then\n\nenjoined the trespass, ordering Enable to remove the pipeline. Enable appeals\n\nboth rulings, claiming several legal errors. 1\n\n We affirm in part, reverse in part, and remand for further proceedings. The\n\ndistrict court properly granted summary judgment to the Allottees but erred in\n\nissuing the permanent injunction. The availability of equitable relief in this case\n\ndepends on the relative weight of interests not yet considered below. We leave\n\nthose considerations for the district court to determine in the first instance.\n\n I. Background\n\n “After the formation of the United States, the [Indian] tribes became\n\n‘domestic dependent nations,’ subject to plenary control by Congress.” Puerto\n\nRico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016) (quoting United States v.\n\nLara, 541 U.S. 193, 204 (2004)); see also Cty. of Oneida v. Oneida Indian\n\nNation, 470 U.S. 226, 234 (1985) (“With the adoption of the Constitution, Indian\n\n\n\n1\n The Allottees have also filed a motion for partial dismissal of this appeal,\nasserting that we lack jurisdiction over one of the interlocutory orders issued\nbelow. The merits briefing makes clear, however, that Enable does not appeal the\norder in question. We therefore DENY the motion as moot.\n\n -3-\n\frelations became the exclusive province of federal law.”). This “plenary\n\nauthority” includes “full power to legislate concerning . . . tribal property.”\n\nWinton v. Amos, 255 U.S. 373, 391 (1921); see also Ramah Navajo Sch. Bd., Inc.\n\nv. Bureau of Revenue, 458 U.S. 832, 837 (1982) (linking Congress’s “broad\n\n[regulatory] power . . . [over] tribal affairs” to “the Indian Commerce Clause” and\n\n“the semi-autonomous status of Indian tribes” (first citing U.S. Const. art. I, § 8,\n\ncl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142\n\n(1980))). See generally White Mountain, 448 U.S. at 141–45 (explaining the\n\nrelationship between federal, state, and tribal regulatory authority).\n\n Congress exercised that power during the “Allotment Era” of the late-\n\nnineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into\n\nallotments and assign[ing] the land parcels to tribal members.” Pub. Serv. Co. v.\n\nBarboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104–06\n\n(detailing the history of the Allotment Era). This project aimed to promote Indian\n\nassimilation by encouraging private property ownership and agricultural pursuits.\n\nE.g., Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018).\n\n But all did not go according to plan. “[M]any of the early allottees quickly\n\nlost their land through transactions that were unwise or even procured by fraud.”\n\nCty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502\n\nU.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or\n\n\n -4-\n\fencumbrance” in favor of a trust-based model. Id. Through the Dawes Act, ch.\n\n119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act\n\nAmendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,\n\n1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the\n\nPresident to allot reservation land in trust rather than granting immediate, fee\n\nsimple ownership, County of Yakima, 502 U.S. at 254. Under these trust\n\narrangements, the United States retained legal title of allotted parcels while\n\nIndian allottees received equitable title. See id. An allottee could secure a fee\n\nsimple land patent only upon dissolution of the trust, which the government would\n\nallow after a term of years or by special determination. Id. at 254–55.\n\n It was through this program that, in August of 1901, President William\n\nMcKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman\n\nnamed Emaugobah. But Congress’s allotment project “came to an abrupt end . . .\n\nwith passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that\n\nlegislation, “Congress halted further allotments and extended indefinitely the\n\nexisting periods of trust applicable to already allotted (but not yet fee-patented)\n\nIndian lands.” Id. As a result, Emaugobah never received a fee simple patent.\n\nAnd well over a century later, the federal government still holds roughly 136\n\nacres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some\n\nindividual Allottees.\n\n\n -5-\n\f Meanwhile, Congress’s vacillation on Indian land policy left “a\n\ncheckerboard of tribal, individual Indian, and individual non-Indian land\n\ninterests” across Indian country. Barboan, 857 F.3d at 1105. This, in turn,\n\ncreated its own set of problems. As Congress hemmed and hawed over Indian\n\naffairs, the American people headed west and industrialized. The Great\n\nPlains—once passable only by foot, hoof, and wagon—slowly but surely sprouted\n\na network of train tracks, telegraph wires, and other conduits of modern\n\ncommerce. “[T]o help ensure that [such modern] necessities . . . could” span the\n\ncontinent “without encumbrance,” Congress soon enacted a series of\n\n“right-of-way statutes.” Id.\n\n As relevant here, these laws empowered the Secretary of the Interior to\n\napprove easements “for all purposes . . . over and across any lands . . . held in\n\ntrust by the United States for individual Indians or Indian tribes.” 25 U.S.C.\n\n§ 323. But the Secretary could not do so unilaterally. Instead, the Secretary\n\nneeded “the consent of the proper tribal officials” or, where applicable,\n\n“individual Indian owners.” Id. § 324. In the case of allotments shared among\n\nmultiple Indians, the law required consent of a “majority of the [equitable]\n\ninterests” to approve a right-of-way. Id.\n\n In 1980, acting under these provisions, the Secretary allowed conveyance of\n\na twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment.\n\n\n -6-\n\fBy its terms, the easement would allow Producer’s Gas Company to “install . . .\n\nand thereafter use, operate, inspect, repair, maintain, . . . and remove a single\n\nburied [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40.\n\nProducer’s Gas later conveyed both the easement and the pipeline to Enable.\n\n When the easement expired in November 2000, however, Enable’s pipeline\n\nremained buried in the ground. Enable eventually sought a new twenty-year\n\neasement by approaching the Allottees and applying for approval from the Bureau\n\nof Indian Affairs. But the company failed to secure approval for the new\n\neasement from a majority of the equitable interests. Accordingly, the Bureau\n\ncancelled Enable’s right-of-way application. Apparently undeterred, Enable\n\ncontinued to operate the pipeline.\n\n The Allottees eventually sued. Their complaint claimed Enable was\n\ncommitting a trespass and sought a court order compelling the pipeline’s removal.\n\nThe parties agreed on most of the relevant facts, so the Allottees moved for\n\npartial summary judgment on liability for trespass and injunctive relief. The\n\ndistrict court granted the motion. Enable now appeals.\n\n II. Analysis\n\n Enable raises two issues on appeal. First, it argues the district court erred\n\nin granting summary judgment to the Allottees on their trespass claims. Second,\n\nit contends the district court erred in issuing a permanent injunction to enforce the\n\n\n -7-\n\fsummary judgment ruling. We affirm the district court’s entry of summary\n\njudgment. We reverse its entry of a permanent injunction, however, and remand\n\nfor the appropriate weighing of equities.\n\n A. Summary Judgment\n\n We review district court grants of summary judgment de novo. White v.\n\nYork Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same\n\nquestion the district court asked: has discovery yielded a genuine dispute of\n\n“material fact” or is the movant “entitled to judgment” on a claim or issue without\n\nany need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v. Liberty\n\nLobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where the\n\navailable evidence would allow a rational jury to accept either party’s allegation\n\nof a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.\n\n2013). But only facts that “could have an effect on the outcome” of a claim\n\nqualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220\n\nF.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all\n\ninferences in favor of the party opposing a summary judgment motion. See, e.g.,\n\nEagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017).\n\n But it is the law, not the material facts, that complicates this case. When a\n\ndispute arises over possessory rights in Indian allotted land, federal law governs.\n\nSee Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); cf. Clearfield\n\n\n -8-\n\fTr. Co. v. United States, 318 U.S. 363, 366 (1943) (“The rights and duties of the\n\nUnited States on commercial paper which it issues are governed by federal rather\n\nthan local law.”). And although no act of Congress expressly creates a right of\n\naction for trespass on Indian allotted land, the parties agree such a right exists.\n\nSee, Aplt. Br. at 16; Aple. Br. at 15. 2 They do, however, dispute the rules of\n\ndecision. Thus we must determine those rules as a matter of so-called “federal\n\ncommon law.” 3\n\n Because we lack a federal body of trespass law to protect the Allottees’\n\nfederal property interests, we must borrow state law to the extent it comports with\n\nfederal policy. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991);\n\n\n2\n Nahno-Lopez also concerned an alleged trespass on Indian allotted land. See\n625 F.3d at 1282. In that case, however, we affirmed summary judgment to the\ndefendants due to a lack of evidence to prove an essential element. See id. at\n1283. It is therefore unclear whether we have ever formally recognized a federal\nclaim for trespass on an Indian allotment, or simply assumed such a claim’s\nexistence. Cf., e.g., Gohier v. Enright, 186 F.3d 1216, 1220–22 (10th Cir. 1999)\n(disposing of a claim under federal law without deciding whether to recognize\nthat claim).\n3\n Of course, “[t]here is no federal general common law.” Erie R.R. Co. v.\nTompkins, 304 U.S. 64, 78 (1938) (emphasis added). Nevertheless, the federal\ncourts have—confusingly—adopted the label “federal common law” to describe a\ncertain variety of statutory interpretation. See generally Martha A. Field, Sources\nof Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890–97 (1986)\n(explaining the meaning of the term). Within this realm, federal courts drift far\nfrom codified text and interpret congressional silence to include rules of law\nprotecting “uniquely federal interests.” Boyle v. United Techs. Corp., 487 U.S.\n500, 504 (1988) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.\n630, 640 (1981)).\n\n -9-\n\fCalifornia ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283\n\n(1982); United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). The State\n\nof Oklahoma recognizes a right of action in trespass where one person “actual[ly]\n\nphysical[ly] inva[des] . . . the real estate of another without the permission of the\n\nperson lawfully entitled to possession.” Williamson v. Fowler Toyota, Inc., 956\n\nP.2d 858, 862 (Okla. 1998). In other words, a trespass occurs when “one . . .\n\nenters upon the property of another without any right, lawful authority, or express\n\nor implied invitation, permission, or license.” Id. The entry must not be “in the\n\nperformance of any duty to the owner or person in charge or on any business of\n\nsuch person.” Id. Instead, a trespasser comes or remains on land “merely for his\n\nown purposes, pleasure, . . . convenience, or out of curiosity.” Id.\n\n Our reading of Oklahoma law thus yields three elements constituting the\n\nAllottees’ federal trespass claims. First, the Allottees must prove an entitlement\n\nto possession of the allotment. Second, they must prove Enable physically entered\n\nor remained on the allotment. Finally, they must prove Enable lacked a legal\n\nright—express or implied—to enter or remain. The stipulated facts already\n\ndescribed definitively prove the first two elements. Enable takes issue, however,\n\nwith the entry of summary judgment on the third.\n\n\n\n\n -10-\n\f 1. Consent as a Defense to Trespass\n\n Enable contends it has produced evidence of consent sufficient to prove a\n\nlegal right to maintain the pipeline despite the easement’s expiration. See Aplt.\n\nBr. 20–23. Moreover, Enable argues the Allottees’ failure to address this\n\nevidence in their opening summary judgment brief below should have rendered\n\nthe motion insufficient at the outset. See id. at 23–25.\n\n We first address the role of consent in this area of law. In Nahno-Lopez we\n\nconsidered a similar trespass action regarding Indian allotted land. See 625 F.3d\n\n1279. Several individual Comanche had agreed to lease their allotted land to the\n\nFort Sill Apache Tribe for development of a casino parking facility. A\n\ncontroversy then arose among the allottees, the Tribe, and the Bureau of Indian\n\nAffairs regarding the lease’s validity. The allottees sued the Tribe, claiming\n\ntrespass. The district court granted summary judgment to the Tribe.\n\n We affirmed. We reasoned that the Comanche allottees had not offered\n\nrecord evidence sufficient to survive summary judgment. We specifically noted\n\nthe Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to\n\nthe alleged trespass—namely, the lease document and acceptance of rent\n\npayments. See id. at 1280, 1284. Because, in our words, “consent forms a\n\ncomplete defense to trespass” under the incorporated Oklahoma law, we upheld\n\nthe summary judgment order. Id. at 1284.\n\n\n -11-\n\f Enable relies on this language in arguing it has a sufficient fact question\n\nregarding consent. In 2004, Enable obtained written consent forms from five of\n\nthe thirty-seven individual Allottees in this case. The forms show these five\n\nAllottees’ willingness to grant a new right-of-way for the pipeline in exchange for\n\ncash payments. 4 Despite the fact that these Allottees hold less than ten percent of\n\nthe interests in equitable title, Enable contends their consent creates a triable\n\nfactual dispute precluding summary judgment under Nahno-Lopez. See Aplt. Br.\n\nat 21–23. If consent is “a complete defense to trespass,” Enable argues, then\n\nthese forms would allow a reasonable jury to rule against trespass liability.\n\n This argument confuses the law. Admittedly, our concise presentation of\n\n“consent” as a “complete defense to trespass” in Nahno-Lopez somewhat\n\noversimplified the rule. To be sure, the rightful possessor of real property cannot\n\nhold his licensees liable for trespass under Oklahoma law. But this is\n\nbecause—as we have just explained—the defendant’s lack of a right to enter is an\n\nelement of the claim. Accordingly, evidence of a plaintiff’s consent to a\n\ndefendant’s entry on the land will defeat liability in those cases where the\n\nplaintiff’s consent itself creates a right to enter or remain. In such cases, the\n\nclaim will fail for lack of proof on an essential element.\n\n\n4\n The Allottees’ have contested the continued validity of these fourteen-year-old\nforms. See Aple. Br. at 32–33. We assume their validity for the sake of\nargument.\n\n -12-\n\f When it comes to maintaining a pipeline over Indian allotted land, however,\n\nCongress has dictated the prerequisites of a right to enter by statute. Enable thus\n\nhas no legal right to keep a structure on the Allottees’ land unless and until it\n\nsecures a right-of-way for that purpose from the Secretary of the Interior. See 25\n\nU.S.C. § 323. The Secretary must, in turn, have the approval of the relevant\n\nIndian stakeholders. See id. § 324.\n\n The statute notwithstanding, Enable argues “[a] single owner of a tenancy\n\nin common may enter into a lease for the entire co-tenancy property without any\n\nother’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to\n\nequate the Allottees’ interest in the land with a traditional tenancy in common.\n\nBut even if it were, the authorities Enable identifies do not support this bold\n\nassertion. See United States v. Craft, 535 U.S. 274, 280 (2002) (explaining, in\n\ndicta, that under traditional English common law, cotenants “may each\n\nunilaterally alienate [or encumber] their shares” but also have “the right to . . .\n\nexclude third parties from” the property (emphasis added)); Anderson v. Dyco\n\nPetroleum Corp., 782 P.2d 1367, 1371–72 & n.8 (Okla. 1989) (holding that\n\ncotenants in the “working interest in [a] natural gas well” may each “market\n\nproduction from the well and . . . [sell] gas to a purchaser . . . without consent of\n\nother cotenants,” id. at 1371). More to the point, those authorities fall well short\n\nof holding that one cotenant has no right of action for trespass under Oklahoma\n\n\n -13-\n\flaw when another cotenant—much less a small minority of cotenancy interests—\n\nhas agreed to a right-of-way easement. And though we have found no Oklahoma\n\nauthority directly on point, other jurisdictions have adopted a directly opposite\n\nview. See, e.g., Burnham v. Balt. Gas & Elec. Co., 144 A.2d 80, 87 (Md. 1958)\n\n(“The authorities appear to be uniform in holding that a cotenant cannot by\n\nhimself grant an easement that will bind his cotenants.”).\n\n Moreover, even if Oklahoma would say that this evidence could defeat any\n\ntrespass claim, we would not incorporate such a rule into the Allottees’ federal\n\nright of action. As we explained above, federal courts should only incorporate\n\nstate rules of decision into federal claims to the extent those rules are consistent\n\nwith federal law and policy. See, e.g., Kamen, 500 U.S. at 98. Needless to say,\n\nsecuring the approval of a majority of beneficial interests plus the government\n\npresents a greater challenge than getting the consent of just a few minority\n\nstakeholders. Thus, if the consent of a minority of interests in equitable title\n\ncould defeat any federal claim for trespass on an Indian allotment, there would be\n\nno point to fulfilling the more stringent requirements of securing a right-of-way\n\nunder federal statute. Adopting Enable’s view would therefore frustrate federal\n\nIndian land policy, effectively robbing Indian allottees and the government of\n\nmeaningful control over alienation. We thus reject Enable’s theory of consent.\n\n\n\n\n -14-\n\f In light of this conclusion, Enable’s proffered evidence plainly does not\n\nwarrant reversal of the district court’s summary judgment ruling. The undisputed\n\nfacts—expiration of the easement, specifically—show that Enable lacks a legal\n\nright to keep the pipeline in the ground. The consent forms would not allow a\n\nreasonable jury to find otherwise.\n\n The Allottees’ briefing below did not bar the district court from reaching\n\nthis conclusion either. To be sure, the Allottees had to show liability was\n\n“appropriate as a matter of law” to support summary judgment. Trainor v. Apollo\n\nMetal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). And they did not\n\nmention the consent evidence in their initial motion. But the consent evidence\n\nwould not have contributed to the initial showing of liability. Thus, because the\n\nAllottees raised the stipulated facts that the easement had expired and not been\n\nrenewed, the onus fell to Enable to put its right to entry at issue. See Anderson v.\n\nDep’t of Heath & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990).\n\n Nor did the district court exceed its discretion by allowing the Allottees to\n\nfile a reply brief addressing consent after Enable raised the issue. See Beaird v.\n\nSeagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998) (applying the abuse of\n\ndiscretion standard). Enable had a full opportunity to brief the issue—indeed, it\n\nraised the issue itself. More importantly, Enable gives no indication that it\n\nsought and was denied an opportunity to file a surreply. Thus, the court below\n\n\n -15-\n\fhad every right to reach and resolve this issue. See Jencks v. Modern Woodmen of\n\nAm., 479 F.3d 1261, 1268–69 (10th Cir. 2007).\n\n 2. Demand for Removal\n\n Enable also argues that no duty to remove the pipeline ever arose—\n\nexpiration of the easement notwithstanding—because the Allottees never\n\ndemanded that Enable remove the pipeline.\n\n We note first that Enable failed to raise this argument below. A litigant\n\nmust preserve an issue for appellate review by pressing it in the trial court. See,\n\ne.g., Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017).\n\nAnd because Enable has not raised it under the plain error standard here, we have\n\nno obligation to address it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,\n\n1130–31 (10th Cir. 2011).\n\n Recognizing this problem, Enable has attempted to shift blame to the\n\nAllottees. According to Enable, the Allottees could only secure summary\n\njudgment if they briefed all elements of their trespass claim—including demand\n\nfor removal. See Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system\n\ndoes not work that way. To be sure, a party seeking summary judgment must\n\nshow the law and available evidence compel the requested outcome. See Fed. R.\n\nCiv. P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Neal v. Lewis,\n\n414 F.3d 1244, 1248 (10th Cir. 2005); Reed v. Bennett, 312 F.3d 1190, 1194 (10th\n\n\n -16-\n\fCir. 2002). And to do so, he must necessarily identify governing legal principles.\n\nBut even an erroneous or incomplete view of the law can support summary\n\njudgment against a party that fails to contest it. Indeed, our courts act only as\n\n“neutral arbiter[s] of matters the parties present.” Greenlaw v. United States, 554\n\nU.S. 237, 243, 128 (2008). Thus, the movant’s burden of production at the\n\nsummary judgment stage does not abrogate the nonmovant’s obligation to contest\n\nmatters of law. If it did, district court review of summary judgment motions\n\nwould become a waste of time in many instances. See Wright v. Experian Info.\n\nSols., Inc., 805 F.3d 1232, 1244 n.6 (10th Cir. 2015).\n\n But Enable’s forfeiture does not prevent us from definitively rejecting its\n\ndemand argument on the merits. See, e.g., United States v. Jarvis, 499 F.3d 1196,\n\n1201 (10th Cir. 2007); see also Champagne Metals v. Ken-Mac Metals, Inc., 458\n\nF.3d 1073, 1088 (10th Cir. 2006) (declaring our court’s discretion to affirm on\n\nany sufficient ground the parties have had an opportunity to address). And in the\n\ninterest of clarifying the law, we think it appropriate to do so. Cf. Jarvis, 499\n\nF.3d at 1202.\n\n Again, we incorporate Oklahoma law into this federal claim so long as it\n\ndoes not frustrate federal policy. See, e.g., Kamen, 500 U.S. at 98. And we begin\n\nby noting the absence of any Oklahoma case establishing a demand requirement.\n\nSee Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A., 496 P.2d\n\n\n -17-\n\f1185, 1187 (Okla. 1972) (specifically considering a trespass by means of a\n\npermanent physical invasion of dirt fill); Russell v. Williams, 964 P.2d 231 (Okla.\n\nCiv. App. 1998) (considering trespass by a portion of a modular home); see also\n\nFrank v. Mayberry, 985 P.2d 773, 775–76 (Okla. 1999) (often cited as explaining\n\nOklahoma’s law of trespass); Williamson, 956 P.2d at 862 (same).\n\n Moreover, even assuming—as Enable urges—that Oklahoma follows the\n\nRestatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank, 985 P.2d\n\nat 776 (noting that the Oklahoma Supreme Court has “quoted [the Second\n\nRestatement] with approval,” rather than adopting it), the argument still fails.\n\nThe Restatement provides that “the continued presence on the land of a structure\n\n. . . which the actor . . . has placed” there “with the consent of” the lawful\n\npossessor constitutes a trespass “if the actor fails to remove it after the consent\n\nhas been effectively terminated.” Restatement (Second) of Torts § 160 (Am. Law\n\nInst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is\n\nplaced on the land with the possessor’s consent conditioned upon the actor’s\n\nsubsequently removing it, the termination of consent creates a duty to remove it.”\n\nId. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by\n\nwhich the consent is restricted” terminates consent. Id. § 171(a).\n\n According to these rules, the easement’s expiration created a duty to\n\nremove the pipeline. Permission to lay and maintain the pipeline came\n\n\n -18-\n\fhand-in-hand with an obligation to remove it. See App. 40 (granting the easement\n\nto “install . . . and remove” the pipeline within a term of twenty years); cf. 25\n\nC.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to\n\nrestore the land to its original condition). Indeed, there would have been no sense\n\nin limiting the easement term to twenty years otherwise. The Restatement would\n\ntherefore not impose a separate obligation to demand removal on these facts. 5\n\n To be sure, had the Allottees refused to allow Enable to remove the\n\npipeline, the Restatement might have forbidden liability for trespass. See\n\nRestatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no\n\nreason to believe the Allottees have ever prevented removal of the pipeline.\n\nInstead, Enable espouses the view that it would have incurred trespass liability for\n\nattempting to remove the pipeline unless and until the Allottees made a removal\n\ndemand. This argument mischaracterizes the right-of-way grant and misstates\n\nOklahoma law. Both allowed Enable to enter the land to remove the pipeline at\n\nleast within the easement term, if not beyond it. See App. 40; Williamson, 956\n\nP.2d at 862.\n\n Ignoring these issues, Enable focuses on rules pertaining to structures\n\n“tortiously placed” on land and subsequently transferred to new owners. See\n\n\n\n5\n For that matter, the complaint filed in district court acted as a demand for\nremoval.\n\n -19-\n\fAplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course,\n\nProducer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on\n\nthe land; it constructed the pipeline with permission. And the fact that Enable\n\nkept the pipeline on the land without permission does not render the initial\n\nplacement tortious. Moreover, the only transfer of the pipeline occurred during\n\nthe easement term, at which point the parties agree the pipeline’s presence was\n\nstill lawful. Finally, even assuming this case had involved a transfer after\n\nexpiration of the easement, the Restatement makes clear that notice of a duty to\n\nremove—for instance, through the terms of an easement contract—binds the\n\ntransferee. See Restatement (Second) of Torts § 161(2).\n\n Finally, Enable errs by relying on the Ninth Circuit’s decision in United\n\nStates v. Milner, 583 F.3d 1174 (9th Cir. 2009), to bolster its position. In Milner,\n\nthe Ninth Circuit considered an alleged federal trespass by anti-erosion structures\n\noriginally placed on privately owned tidal uplands in Washington State. The\n\nboundary between the uplands and adjacent Indian tidelands had shifted with the\n\ngradual change of the mean high water mark over the course of several years.\n\nEventually, the boundary line shifted so far that the stationary anti-erosion\n\nstructures began encroaching on the tribal tideland. In defense against a trespass\n\nclaim, the upland owners argued they lacked the intent necessary to commit a\n\ntrespass. The Ninth Circuit rejected this argument, reasoning that intent followed\n\n\n -20-\n\frefusal to remove the structures despite notice of a duty to remove. That notice,\n\nsaid the court, followed the United States’ demand for removal as legal title\n\nholder. See id. at 1190–91.\n\n Even if we assumed the legal principles the Ninth Circuit applied in Milner\n\nhad bearing on this case, 6 they would not support Enable’s argument for a demand\n\nelement. As we have explained, Enable acquired the pipeline already knowing\n\nthe right-of-way would eventually expire. It therefore cannot—and indeed does\n\nnot—claim it lacked notice of its duty to remove or intent to maintain the\n\ntrespass.\n\n We thus reject Enable’s contention that the Allottees had to demand\n\nremoval of the pipeline for trespass liability to arise.\n\n ***\n\n\n\n\n6\n The Milner court applied the Restatement (Second) of Torts under the\nsomewhat ambiguous reasoning that both federal precedent and borrowed\nprecedent from the State of Washington supported that application. See United\nStates v. Milner, 583 F.3d 1174, 1182–83 & n.6 (9th Cir. 2009). The Restatement\nclassifies trespass traditionally as an intentional tort, see Restatement (Second) of\nTorts § 158, with “intent” meaning a “desire[] to cause consequences of” the act\nin question “or . . . belie[f] that the consequences are substantially certain to\nresult,” id. § 8A. It is worth noting, however, that the Oklahoma courts have yet\nto develop a jurisprudence of intent with regard to real property trespass.\nNevertheless, because Enable has never made an issue of it, the place of intent in\nOklahoma tort law and, consequently, federal trespass law, does not bear on our\nanalysis.\n\n -21-\n\f In sum, Enable’s arguments against summary judgment fail under the\n\nincorporated trespass law of Oklahoma. And Enable has not argued for any\n\nconflict between that law, as we understand it, and federal policy regarding Indian\n\nallotted land. We therefore affirm the district court’s grant of summary judgment.\n\n B. Permanent Injunction\n\n The Allottees’ success on the merits notwithstanding, Enable argues the\n\ndistrict court applied the wrong legal standard in determining whether to issue a\n\npermanent injunction. According to Enable, the district court incorporated a\n\nsimplified injunction rule from Oklahoma law when it should have adhered to\n\nbasic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. 7\n\n We agree. By failing to apply the federal courts’ traditional equity\n\njurisprudence to its remedy analysis, the court below committed an error of law\n\nand thus abused its equitable discretion. Accordingly, we must reverse the\n\ninjunction order and remand for a full weighing of the equities.\n\n Federal district courts have the power to order injunctive relief when equity\n\nso requires. See Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d\n\n1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power\n\n\n\n7\n The Allottees contend Enable forfeited this argument by failing to raise it\nbelow. See Aple. Br. at 34–35. Our review of the briefing below, however,\nreveals that Enable did not acquiesce to the Allottees’ proposed automatic-\ninjunction rule and instead argued for the typical four-factor analysis.\n\n -22-\n\ffor abuse of discretion only. See, e.g., id. As always, however, a district court\n\nabuses its discretion when it “bases its decision on an erroneous conclusion of\n\nlaw.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)\n\n(quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,\n\n1224 (10th Cir. 2008)).\n\n In this case, the district court relied primarily on Oklahoma law—with\n\nsupplemental authority from other federal courts—to conclude that “equity will\n\nrestrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery, 496 P.2d\n\nat 1187). 8 As a result, it did not apply the usual four-factor test guiding federal\n\ncourts’ grant of permanent injunctive relief. See, e.g., eBay Inc. v.\n\nMercExchange, L. L. C., 547 U.S. 388, 391 (2006); Kitchen v. Herbert, 755 F.3d\n\n1193, 1208 (10th Cir. 2014). Though it observed “some courts have declined to\n\nenter an injunction when the trespass was unintentional and when the landowner”\n\ndelays objection, it did not think such issues at play in this case. App. 269. Thus,\n\n\n\n\n8\n Where a refusal to remove a permanent structure effects the invasion of real\nproperty, it constitutes a “continuing trespass” under Oklahoma law. Fairlawn\nCemetery, 496 P.2d at 1187. “Continuing trespass” is not a distinct legal wrong.\nRather, the ongoing, unabating nature of certain trespasses continuously gives rise\nto causes of action that the victim can sue on, and eventually can support\nequitable relief. See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944); see also\nBradley v. Renfrow, 84 P.2d 430, 431 (Okla. 1938) (describing an allegation of\ncontinuing trespass as supporting pursuit of equitable relief).\n\n -23-\n\fwith no further weighing of the equities, the court ordered Enable to remove the\n\npipeline.\n\n Generally, federal courts adopt state law even when the dispute is\n\n“governed exclusively by federal [common] law.” See United States v. Turley,\n\n878 F.3d 953, 957 (10th Cir. 2017). “Indeed, there is a ‘presumption that state\n\nlaw should be incorporated into federal common law.’” Id. (citing Kamen v.\n\nKemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)). This is partly because courts\n\nare hesitant, and for good reason, to create federal common law rules that are\n\n“wholly the product of a federal court’s own devising.” See Kamen, 500 U.S. at\n\n98; United States v. Yazell, 382 U.S. 341, 353 (1966) (declining to “invent” a\n\nfederal common law rule and “impose it upon the States”). Such policy, even\n\nwhen applied to cases arising under federal common law rather than diversity\n\njurisdiction, supports “the twin aims of the Erie rule: discouragement of forum-\n\nshopping and avoidance of inequitable administration of the laws.” Hanna v.\n\nPlumer, 380 U.S. 460, 468 (1965).\n\n But federal courts do not mechanically apply state law in every\n\ncircumstance. “Whether to adopt state law or to fashion a nationwide federal rule\n\nis a matter of judicial policy ‘dependent upon a variety of considerations.’”\n\nUnited States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (citation omitted).\n\nAnd to guide this judicial policymaking, the Supreme Court has indicated that\n\n\n -24-\n\ffederal courts should consider (1) “whether application of state law would\n\nfrustrate specific” federal interests, (2) whether there is a “need for a nationally\n\nuniform body of law,” and (3) other considerations such as whether “application\n\nof a federal rule would disrupt commercial relationships predicated on state law.”\n\nId. at 728–29; see also Kamen, 500 U.S. at 98. The considerations in this case\n\nlead us to conclude that the district court erred in applying Oklahoma rather than\n\nfederal remedial law.\n\n The district court erred because the circumstances presented here reveal “a\n\ndistinct need for nationwide legal standards.” Kamen, 500 U.S. at 98. As already\n\nexplained, Congress provided a way for the Secretary of the Interior to approve\n\neasements “over and across any lands . . . held in trust by the United States for\n\nindividual Indians or Indian tribes.” 25 U.S.C. § 323. This right-of-way statute\n\nwas “to help ensure that necessities such as telegraph lines and roads could\n\ncontinue without encumbrance.” Pub. Serv. Co. of New Mexico v. Barboan, 857\n\nF.3d 1101, 1105 (10th Cir. 2017). While this does not rise to the level of creating\n\na federal interest that federal common law should manage, the nationwide\n\napplication of this right-of-way statute suggests a need for a uniform federal\n\nstandard.\n\n This uniform standard is necessary because the Secretary has undoubtedly\n\napproved easements over and across Indian land in multiple states. And since\n\n\n -25-\n\fmany of these easements are likely for a limited duration, these easements—for\n\npipelines, telecommunication lines, and roads—like the easement at issue here,\n\nmay fail to receive consent to renew by a “majority of the [equitable] interests”\n\nand may therefore be subject to an order of removal. See id. § 324. This prospect\n\nshows the distinct need for easement holders to be subject to the same standard\n\nfor when an equitable remedy is required and when a legal remedy is\n\nsufficient—regardless of where the easement is located. Otherwise, an easement\n\nholder in Oklahoma and one in Kansas could be subject to differing permanent\n\ninjunction standards despite both receiving an easement from the Secretary of the\n\nInterior pursuant to the same federal program.\n\n We therefore conclude that the district court erred in failing to apply the\n\nfederal permanent-injunction standard even though it properly applied Oklahoma\n\ntrespass law. This is because our jurisprudence distinguishes between matters of\n\nright and matters of remedy. The Supreme Court has concluded that “State law\n\ncannot define the remedies which a federal court must give” and that “a federal\n\ncourt may afford an equitable remedy for a substantive right recognized by a State\n\neven though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York, 326\n\nU.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does\n\nnot apply with equal force to determining appropriate remedies, especially\n\nequitable remedies, as it does to defining actionable rights.\n\n\n -26-\n\f Moreover, applying the federal permanent-injunction standard differs\n\nsignificantly from applying the federal common law of trespass. As explained,\n\nfederal courts lack a body of federal trespass law to protect the Allottees’ federal\n\nproperty interests. So applying federal trespass law would require our court to\n\nconstruct rules entirely of this court’s creation. We accordingly borrow a body of\n\nwell-developed state law to the extent it does not conflict with federal policy.\n\nThese same considerations are not present when seeking to apply federal equitable\n\nremedies, however. Applying federal remedial law does not require this court to\n\ncreate federal common law or even to “fill the interstices of federal remedial\n\nschemes” with the court’s own rules. See Kamen, 500 U.S. at 98 (declining to\n\nfashion federal rules to fill gaps in federal statutory remedial scheme); Kimbell\n\nFoods, 440 U.S. at 728 (same).\n\n This is because the federal judiciary already has a well-developed body of\n\nlaw regarding equitable remedies to guide judicial discretion. The Supreme Court\n\nhas repeatedly weighed in on the standard federal courts apply when granting or\n\ndenying a permanent injunction. See, e.g., eBay Inc. v. MercExchange, L.L.C.,\n\n547 U.S 388, 391 (2006); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,\n\n541–42 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). In each\n\ncase the Supreme Court set out the proper standard for granting a permanent\n\ninjunction and chastised the circuit court for granting equitable relief based solely\n\n\n -27-\n\fon success on the merits. See Weinberger, 456 U.S. at 311–312 (“It goes without\n\nsaying that an injunction is an equitable remedy [that] . . . ‘is not a remedy which\n\nissues as of course.’”) (citation omitted). We may therefore apply a well-\n\ndeveloped federal common law standard for issuing a permanent injunction that\n\nwill fulfill the “distinct need for nationwide legal standards” called for in this\n\ncase. Kamen, 500 U.S. at 98.\n\n Thus, a federal district court’s decision to permanently enjoin a continuing\n\ntrespass on allotted land should take into account (1) whether an injunction is\n\nnecessary to prevent “irreparable harm,” (2) whether “the threatened injury\n\noutweighs the harm that the injunction may cause” to the enjoined party, and (3)\n\nwhether the injunction would “adversely affect the public interest.” Kitchen v.\n\nHerbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (quoting Sw. Stainless, LP v.\n\nSappington, 582 F.3d 1176, 1191 (10th Cir. 2009)). 9 Accordingly, by ordering\n\nEnable to remove the pipeline on the basis of liability alone, the district court\n\nlegally erred and thus abused its discretion.\n\n The Allottees’ attempts to escape this conclusion do not persuade us. First,\n\nthey argue the district court did not, in fact, apply a simplified rule. Instead, they\n\n\n\n9\n We acknowledge that our circuit’s articulation of the rule differs slightly from\nthat of the Supreme Court in eBay. Compare Kitchen, 755 F.3d at 1208, with\neBay, 547 U.S. at 393. But the subtle differences are not at issue, and we think\nthe two articulations capture the same considerations in any event.\n\n -28-\n\fclaim the court merely applied the usual rule to simplified facts. See Aple. Br.\n\n35–38. But we see little support for this reading. The court below made no\n\nmention of the appropriate equitable considerations. Indeed, it went to great\n\nlengths to justify its analysis as legally, rather than just factually, appropriate.\n\n Second, the Allottees invite us to affirm the district court even if it applied\n\nincorrect law, claiming the record clearly warrants relief regardless. See Aple.\n\nBr. at 38–41. But though—as we have already noted—we may generally affirm a\n\ndistrict court order on any sufficient grounds the parties have had an opportunity\n\nto brief, see Champagne Metals, 458 F.3d at 1088, we resist that invitation. The\n\ndiscretion to issue a permanent injunction in this case rests with the district court,\n\nnot us. Cf., e.g., Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1191\n\n(10th Cir. 2005). And just because we think the district court could have issued a\n\npermanent injunction under the proper test does not mean we can ignore an error\n\nof law and resolve the issue on appeal. “Injunctive relief is, by its very nature,\n\nfact-sensitive and case-specific.” New Comm Wireless Servs., Inc. v. SprintCom,\n\nInc., 287 F.3d 1, 13 (1st Cir. 2002). Thus our court should generally refrain from\n\n“uphold[ing] a preliminary injunction on a ground that was not fully addressed”\n\nbelow. Id.\n\n Moreover, if we did endeavor to balance the equities ourselves, we would\n\nnot get very far. As the above makes clear, the sheer right to exclude simply\n\n\n -29-\n\fcannot begin and end the equitable analysis. Cf. eBay, 547 U.S. at 392–93. And\n\nthe Allottees do not explain how the pipeline’s presence works “irreparable harm”\n\notherwise. Kitchen, 755 F.3d at 1208 (quoting Sappington, 582 F.3d at 1191).\n\nMore importantly, without further evidence—which the Allottees have never\n\nproffered—we have no way of knowing the relative costs and benefits of Enable\n\nremoving the pipeline, either as they pertain to these parties or the public at large.\n\nTo the extent the Allottees have addressed these concerns, their arguments have\n\noffered legal analysis in lieu of pertinent facts. See App. 120–23; Aple. Br. at\n\n38–41. In short, we will not assume the equities support injunctive relief in this\n\ncase, or whether the district court would in fact award such relief under governing\n\nlaw.\n\n In sum, we must remand the decision to the district court to weigh the\n\nequities in the first instance. 10\n\n III. Conclusion\n\n For the reasons stated above, we AFFIRM the district court’s grant of\n\nsummary judgment to the Allottees, REVERSE the entry of the permanent\n\ninjunction, and REMAND for further proceedings.\n\n\n\n\n10\n As a result, we do not reach Enable’s challenge to the district court’s\ncompliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at\n28–30.\n\n -30-\n\f17-6088, Davilla v. Enable Midstream Partners\nHARTZ, Circuit Judge, concurrence and partial dissent:\n Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion.\n\nWhere I differ from the panel opinion is that I would apply the state law of Oklahoma,\n\nrather than federal law, to determine the remedy for Enable’s trespass. Because the panel\n\nopinion covers the ground so well, my discussion can be relatively brief.\n\n The dispute in this case concerns about 1300 feet of natural-gas pipeline that is\n\npart of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is\n\npart of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that\n\nthis quarter-mile pipeline segment trespasses property held in trust for them by the United\n\nStates. Because of the interest of the federal government, federal law governs. But there\n\nis no applicable federal trespass statute, so we decide this case as a matter of federal\n\ncommon law. As a general rule, federal common law regarding interests in real property\n\nadopts the law of the state where the property is located. See United States v. Turley, 878\n\nF.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and\n\nwith greater confidence when the government’s counterparty knows it can rely on the\n\nlocal law with which it (or its attorney) is familiar.\n\n The dispute before us, however, does require some consideration of federal\n\nstatutory law. Easements for rights-of-way over what can be described, roughly\n\nspeaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how\n\nconsent to a right-of-way must be obtained, ordinarily through approval of the majority\n\nownership interest of the known property owners (or tribal officials, if the land is tribal\n\fland), see id. at § 324. The easement for the pipeline in this case explicitly cites to those\n\nstatutory provisions. Much of the panel opinion, with which I fully agree, explains why\n\nwe believe that such consent had lapsed for the pertinent portion of Enable’s easement.\n\n But consent is only one element of a trespass claim. For the other elements,\n\nOklahoma law governs. That choice of law makes particularly good sense here. The\n\nrecord does not show how much of the 100-mile pipeline or the 2200-mile pipeline\n\nsystem crosses land held in trust by the United States and how much of it crosses land\n\nthat is privately owned. But all of it is within Oklahoma, and surely it facilitates\n\ncommerce to have a single legal regime govern what happens when a pipeline crosses\n\nland without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma\n\nlaw governs the requirements of notice and demand to the trespasser.\n\n Where I depart from the majority is regarding the law governing whether a\n\npermanent injunction should issue. In my view, we should continue to apply Oklahoma\n\nlaw on that issue. As one leading treatise has stated, “Rights and remedies are closely\n\ninterrelated concepts; to deviate from the state’s definition of the latter often also would\n\nchange the former.” Wright & Miller § 4513 at 567. That statement appears in a\n\ndiscussion of the Erie doctrine, explaining why in diversity cases federal courts should\n\nordinarily look to state law in determining what remedy is appropriate, even when\n\nconsidering equitable remedies. But the point applies here as well. Once the federal\n\ncourt has decided that federal common law should incorporate state law regarding a cause\n\nof action, the same considerations should ordinarily counsel in favor of incorporating\n\nstate law regarding the remedies available for that cause of action.\n\n\n 2\n\f The majority believes that there are good reasons not to follow that approach here.\n\nThe panel opinion states that there is “‘a distinct need for nationwide legal standards’”\n\nwith respect to the remedy in this case. Maj. Op. at 25 (quoting Kamen v. Kemper Fin.\n\nServs., Inc., 500 U.S. 90, 98 (1991)). It points out that the federal statute at issue here\n\npermits rights-of-way on Indian land “to help ensure that necessities such as telegraph\n\nlines and roads could continue without encumbrance.” Pub. Serv. Co. of New Mexico v.\n\nBarboan, 857 F.3d 1101, 1105 (10th Cir. 2017). It reasons that because the statute\n\napplies in multiple states, fulfilling this purpose requires a uniform federal standard.\n\n I am not persuaded. There is certainly a federal interest in uniform national\n\napplication of the federal statutes that govern whether there has been valid consent to an\n\neasement over Indian land. But once, as here, it has been determined that there has not\n\nbeen compliance with the statute, that interest in uniformity has been served. We begin\n\nwith a “‘presumption that state law should be incorporated into federal common law.’”\n\nUnited States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017) (quoting Kamen, 500 U.S. at\n\n98)). That presumption has not been rebutted here.\n\n I see no reason why local law should not determine what consequences flow\n\nwhen the former beneficiary of an easement loses its rights to the easement. The district\n\ncourt construed Oklahoma law as giving the victim of a continuing trespass an automatic\n\nright to obtain an order requiring the trespasser to remove the offending property. In the\n\ncircumstances here, that means that Enable must remove its pipeline. What that amounts\n\nto in practice—since removal of the pipeline apparently would not benefit the landowners\n\n—is that the landowners have increased bargaining power in determining what Enable\n\n\n 3\n\fmust pay to continue the easement. This is an inherent and important component of the\n\nsubstantive rights provided to Oklahoma property owners. The purposes behind the\n\nfederal statutes at issue here relate only to providing a reasonable mechanism for\n\nobtaining consent to an easement from Indian landowners. They say nothing about how\n\nmuch bargaining power landowners should have in negotiating with those seeking\n\neasements. In colloquial terms, the federal government has no dog in that fight. This is\n\nnot a case, for example, where the easement was granted under a federal condemnation\n\nstatute. In that circumstance the federal interest in having a pipeline cross the property\n\nmight weigh against requiring the former easement holder to remove the pipeline from\n\nthe burdened land. But in the present circumstance there is no such federal interest. Why\n\nshould remedial rights of Indian landowners be different from those of other landowners\n\nwho granted easements to Enable for the same pipeline? In particular, why should the\n\nIndian landowners have less bargaining power to negotiate a new easement price than do\n\nthe other landowners, who can rely on Oklahoma state law when Enable trespasses on\n\ntheir land?\n\n I acknowledge that there is problematic language in Guaranty Trust Co. of N.Y. v.\n\nYork, 326 U.S. 99 (1945), a diversity case. But as discussed at length in a leading\n\ntreatise, the Supreme Court’s language is obscure, and it is far from clear that federal\n\ncourts have independent authority (aside from constitutional provisions and federal rules\n\nof procedure) to reject state equitable principles in diversity cases. See Wright & Miller\n\n§ 4513; id. at 567 (“as a general rule, when forum state law defines the underlying\n\nsubstantive right, state law also governs the availability of such equitable remedies as a\n\n\n 4\n\fpermanent injunction”). I would refrain from incorporating the difficulty of Guaranty\n\nTrust into federal-common-law doctrine when that doctrine appears to provide the means\n\nto resolve the issue before us.\n\n Also, I respectfully disagree with the panel opinion’s view that this case is\n\ngoverned by Supreme Court authority governing the availability of permanent injunctions\n\nas a remedy for federal statutory claims, as in eBay Inc. v. MercExchange, LLC, 547 U.S.\n\n388, 391 (2006) (infringement suit under the Patent Act); Amoco Prod. Co. v. Vill. of\n\nGambell, AK, 480 U.S. 531, 541–42 (1987) (preliminary injunction for violation of\n\nAlaska National Interest Lands Conservation Act); and Weinberger v. Romero-Barcello,\n\n456 U.S. 305 (1982) (violation of Federal Water Pollution Control Act). In that context,\n\none can presume that when Congress enacts a statutory cause of action it recognizes that\n\ntraditional equitable relief is available. See Weinberger, 456 U.S. at 313. Here, however,\n\nthere is no federal statutory cause of action.\n\n I hesitate to dissent from what I consider to be a fine opinion. But we are plowing\n\nnew ground here, and I think it useful to express some of the considerations that may\n\ncounsel a different approach.\n\n\n\n\n 5\n[END_CASE]", "role": "user" } ]
4,581,247	LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant.	Liberty Mutual Fire Insurance v. Woolman	2019-01-14	17-3249	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Tymkovich, Holmes, Phillips", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 14, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n LIBERTY MUTUAL FIRE INSURANCE\n COMPANY,\n\n Plaintiff Counter Defendant -\n Appellee,\n\n v. No. 17-3249\n\n DENNIS WOOLMAN,\n\n Defendant Counter Plaintiff -\n Appellant,\n\n and\n\n CLAYTON SPENCER,\n\n Defendant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 2:14-CV-02332-CM)\n _________________________________\n\nWesley J. Carrillo (Christopher M. Napolitano with him on the briefs), of Ensz & Jester\nP.C., Kansas City, Missouri, for Defendant-Appellant.\n\nBruce A. Moothart (Charlie J. Harris, Jr., with him on the brief), of Seyferth Blumenthal\n& Harris LLC, Kansas City, Missouri, for Plaintiff-Appellee.\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n\f _________________________________\n\n The Federal Coal Mine Health and Safety Act of 1969, as amended by the\n\nBlack Lung Benefits Act (the Act), 30 U.S.C. §§ 901–945, requires coal-mine\n\noperators to provide benefits to miners whose contraction of pneumoconiosis—i.e.,\n\n“black lung” disease—from prolonged exposure to coal dust renders them totally\n\ndisabled. To comply with the Act, coal-mine operators must purchase a worker’s\n\ncompensation and employer liability insurance policy containing an “endorsement”\n\nensuring coverage for black-lung-benefits claims. In this appeal, Dennis Woolman—\n\nformer president of The Clemens Coal Company—challenges the district court’s\n\ndetermination that Liberty Mutual Fire Insurance Company didn’t breach a duty to\n\nhim by failing to procure for Clemens Coal an insurance policy with a black-lung-\n\ndisease endorsement. Woolman also challenges the district court’s rejection of his\n\nargument that Liberty Mutual should be estopped from denying black-lung-disease\n\ncoverage, insisting that he relied on Liberty Mutual to provide such coverage.\n\nExercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n BACKGROUND\n\n Clemens Coal operated a surface coal mine in Pittsburg, Kansas until it filed\n\nfor bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it\n\nwent bankrupt. Federal law required Clemens Coal to maintain worker’s\n\ncompensation insurance with a special endorsement covering miners’ black-lung-\n\ndisease benefits. See 20 C.F.R. § 726.203(a). Failure to procure such insurance could\n\n\n\n 2\n\fexpose Clemens Coal’s president and its officers to individual liability for black-lung\n\nbenefits and for civil penalties. Id. § 726.302(c)(1)–(2).\n\n Woolman didn’t personally procure insurance for Clemens Coal but instead\n\ndelegated that responsibility to James Worley, an outside consultant. In 1996, Worley\n\nreceived from Deborah Smith, Liberty Mutual’s commercial sales agent, a proposal\n\nto provide worker’s compensation and employer liability insurance to Clemens Coal.\n\nAfter some discussion, Worley agreed to purchase from Liberty Mutual a package\n\npolicy with effective dates of November 1, 1996, to November 1, 1997.1 Not only did\n\nthe policy not contain a black-lung-claim endorsement, it expressly excluded\n\ncoverage for federal occupational disease claims, such as those arising under the Act.\n\n Smith had never sold insurance to a coal company and wasn’t aware of the\n\nindustry’s exposure to black-lung claims. Worley, for his part, had never procured\n\ninsurance directly from an insurance company. Instead, he ordinarily consulted a\n\nbroker—Insurance Management Associates, Inc. (IMA)—and compared premiums\n\nand coverages from several potential carriers. In this case, he selected the Liberty\n\nMutual policy because it was $43,000 cheaper than comparable policies offered\n\nthrough IMA. An IMA account representative cautioned that this significant price\n\ndisparity suggested that the policy provided different coverages. Worley, however,\n\nassumed the Liberty Mutual policy was cheaper because it wasn’t in the assigned risk\n\npool for Kansas, which Worley understood to have considerably higher premiums.\n\n\n 1\n Although the policy was effective until November 1, 1997, it was cancelled\non August 1, 1997, because of non-payment.\n 3\n\f In 2012, Clayton Spencer—a former Clemens Coal employee—filed a claim\n\nwith the United States Department of Labor (DOL) against Clemens Coal for benefits\n\nunder the Act. After some investigation, the DOL advised Woolman that Clemens\n\nCoal was uninsured for black-lung-benefits claims as of July 25, 1997—the last date\n\nof Spencer’s employment—and that, without such coverage, Woolman, as Clemens\n\nCoal’s president, could be held personally liable. Woolman promptly tendered the\n\nclaim to Liberty Mutual for a legal defense. Liberty Mutual responded with a\n\nreservation-of-rights letter, stating that it hadn’t yet determined coverage for\n\nSpencer’s claim but that it would provide a defense during its investigation. In a\n\nfollow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a\n\ncompany—not Woolman personally—and advised Woolman to retain his own\n\ncounsel.\n\n Liberty Mutual eventually concluded that the insurance policy doesn’t cover\n\nSpencer’s black-lung claim, and on July 9, 2014, it sued Clemens Coal2 and\n\nWoolman seeking a judicial declaration to that effect. The parties stipulated that the\n\npolicy, “as written,” doesn’t provide coverage for Spencer’s claim. Appellee’s Suppl.\n\nApp. vol. 1 at 15. Nevertheless, as an affirmative defense, Woolman asserted that\n\nLiberty Mutual is estopped from denying black-lung-claim coverage because he\n\nexpected the coverage would be included in the policy and because the policy should\n\n\n\n 2\n The district court dismissed the claims against Clemens Coal before trial\nbecause Clemens Coal was bankrupt and thus no longer a legal entity capable of\nbeing sued.\n 4\n\fbe construed to contain the coverages that federal law requires. Woolman also\n\nasserted a counterclaim against Liberty Mutual for breach of its duty to act as a\n\nreasonably prudent insurance agent in procuring the proper coverage for Clemens\n\nCoal.\n\n The district court conducted a jury trial on Woolman’s counterclaim and a\n\nbench trial on his estoppel defenses. During the jury trial, the parties offered little\n\ndirect evidence of the circumstances surrounding Worley and Smith’s transaction to\n\nprocure insurance. Indeed, neither Worley nor Smith recalled the transaction, and\n\nWoolman, who admittedly wasn’t involved, had “no idea” what transpired.\n\nAppellant’s App. vol. 5 at 828:3. Smith resorted to testifying that, when selling\n\ninsurance, she ordinarily relied on the client to inform her of its required coverages.\n\nYet neither Smith nor Worley recalled discussing a need for black-lung-claim\n\ncoverage. And, while both Woolman and Worley testified that they intended to\n\nprocure whatever coverages were required by law, they admitted that they didn’t read\n\nthe policy to verify that it included such coverages; instead, they just assumed it did.\n\n Smith also testified that it was her “standard” practice to determine coverage\n\nneeds by reviewing the client’s expiring policy, though she regularly consulted other\n\nresources as many clients declined to share their prior policies. Id. vol. 4 at 585:1.\n\nWorley, in turn, testified that he would have permitted Smith to copy the coverages\n\nin Clemens Coal’s expiring policy from Hartford Underwriters Insurance Company.\n\nYet Smith didn’t recall reviewing the Hartford policy, and Worley didn’t recall\n\nsharing it. Regardless, the parties could only speculate as to the coverages that Smith\n\n 5\n\fmay have copied from the Hartford policy because it couldn’t be located at trial.3\n\nFurther, Liberty Mutual proffered evidence that, in a 1996 reservation-of-rights letter\n\nto Clemens Coal regarding a previous black-lung claim, Hartford questioned whether\n\nthe policy covered such claims.\n\n Lacking direct evidence of Worley and Smith’s transaction, Woolman urged\n\nthe jury to find that Liberty Mutual failed to exercise reasonable care in procuring\n\ninsurance based on the following series of inferences: (i) that Worley intended to\n\nacquire, and therefore requested, black-lung-claim coverage; (ii) that Worley\n\ntendered the expiring Hartford policy for Smith to review; (iii) that the policy\n\ncontained a black-lung-claim endorsement; and (iv) that Smith, following her\n\n“standard” practice, agreed to duplicate that coverage for Clemens Coal. Id. vol. 4 at\n\n585:1. Liberty Mutual countered that there was insufficient evidence for these\n\ninferences, and at the close of Woolman’s case-in-chief, it moved for judgment as a\n\nmatter of law under Rule 50 of the Federal Rules of Civil Procedure. The district\n\ncourt took the motion under advisement and permitted additional briefing.\n\n Woolman requested that the district court instruct the jury that his breach-of-\n\nduty counterclaim required proof (i) that Liberty Mutual undertook to procure\n\nworker’s compensation insurance for Clemens Coal; (ii) that Liberty Mutual failed to\n\nexercise appropriate skill, care, and diligence in that undertaking; and (iii) that\n\n\n\n 3\n Only the policy’s “Change in Information Page” was produced, and it didn’t\nindicate whether the policy had a black-lung-claim endorsement. Appellee’s Suppl.\nApp. vol. 2 at 40.\n 6\n\fWoolman suffered damages as a result. The court rejected Woolman’s request and,\n\ninstead, instructed the jury to determine whether Liberty Mutual breached a duty that\n\nit owed directly to Woolman as its “client.” Id. vol. 2 at 225–26. Woolman objected\n\nand asked for an instruction that Liberty Mutual owed him a duty “as the President of\n\nClemens Coal,” but the court overruled the objection. Id. vol. 5 at 907:23.\n\n The jury returned a verdict for Woolman on his counterclaim, awarding him\n\n$18,000 in damages. The district court, however, set aside the verdict and granted\n\nLiberty Mutual’s motion for judgment as a matter of law, concluding that Liberty\n\nMutual didn’t owe a duty to Woolman. Liberty Mut. Fire Ins. Co. v. Clemens Coal\n\nCo., 2016 WL 5817073, at 2 (D. Kan. Oct. 4, 2016). Months later, the court issued\n\nfindings of fact and conclusions of law regarding Woolman’s estoppel defenses. See\n\nLiberty Mut. Fire Ins. Co. v. Clemens Coal Co., 250 F. Supp. 3d 825, 832–39 (D.\n\nKan. 2017). Finding no evidence that Liberty Mutual had represented it would\n\nprocure black-lung-claim coverage for Woolman or that Woolman justifiably relied\n\non such representations, the court ruled against Woolman on the estoppel defenses\n\nand entered judgment in Liberty Mutual’s favor on its declaratory judgment claim.\n\nId. at 839.\n\n Woolman filed a post-trial motion to alter or amend the court’s judgment or, in\n\nthe alternative, for a new trial on his estoppel defenses. The court denied the motion.\n\nWoolman timely appealed, challenging the counterclaim and estoppel rulings as well\n\nas aspects of the court’s denial of his request for post-trial relief.\n\n\n\n 7\n\f DISCUSSION\n\n We first address Woolman’s argument that the district court improperly\n\ngranted Liberty Mutual’s motion for judgment as a matter of law on his breach-of-\n\nduty counterclaim. We then turn to Woolman’s argument that Liberty Mutual should\n\nbe judicially estopped from contesting that it owed him a duty. Finally, we address\n\nWoolman’s challenges to the district court’s ruling on his equitable and promissory\n\nestoppel defenses.\n\nI. Woolman’s Breach-of-Duty Counterclaim\n\n We review de novo a grant of judgment as a matter of law under Rule 50,\n\napplying the same standards as the district court. Elm Ridge Expl. Co., LLC v. Engle,\n\n721 F.3d 1199, 1216 (10th Cir. 2013). “All reasonable inferences are drawn in favor\n\nof the nonmoving party and this court does ‘not make credibility determinations or\n\nweigh the evidence.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir.\n\n2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\n\n(2000)). Judgment as a matter of law is appropriate only if a “reasonable jury would\n\nnot have a legally sufficient evidentiary basis” to find for the opposing party.\n\nFed. R. Civ. P. 50(a)(1); see also Finley v. United States, 82 F.3d 966, 968 (10th Cir.\n\n1996) (“[T]he evidence [must] point[] but one way and [be] susceptible to no\n\nreasonable inferences which may support the opposing party’s position.”) (quoting\n\nQ.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989) (per curiam)).\n\n\n\n\n 8\n\f A. The “Exercise Care” Duty\n\n This is an action for failure to procure insurance, not an action for breach of\n\nthe insurance contract itself. Kansas courts refer to insurance agents’ “exercise care\n\nduty” in such circumstances. Marshel Invs., Inc. v. Cohen, 634 P.2d 133, 141 (Kan.\n\nCt. App. 1981). Under Kansas law, the general rule is that “an insurance agent or\n\nbroker who undertakes to procure insurance for another owes to the client the duty to\n\nexercise the skill, care and diligence that would be exercised by a reasonably prudent\n\nand competent insurance agent or broker acting under the same circumstances.” Id.\n\nAn action for breach of this duty sounds in both contract and tort because “the duty is\n\nboth an implied contractual term of the undertaking (contract duty) and a part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking (tort duty).” Id. at 142.\n\n On appeal, Woolman argues that, although his breach-of-duty counterclaim\n\nsounds in both tort and contract, the district court “ignored the contractual nature” of\n\nthe claim. Appellant’s Opening Br. at 18. Woolman misreads the court’s analysis.\n\nThe court expressly rejected Woolman’s contract theory, reasoning that Liberty\n\nMutual didn’t undertake to procure insurance for Woolman as its client or to make\n\nthe insurance contract for his benefit. That the court referenced a “negligence\n\ncounterclaim,” see Liberty Mut., 2016 WL 5817073, at 2, doesn’t vitiate its\n\nsubstantive contractual analysis, cf. Appellant’s Opening Br. at 18 (arguing that the\n\nreference “demonstrates the [court’s] misapplication of the claim”).\n\n\n\n 9\n\f Woolman also contends that the district court “invaded the province of the\n\njury” when it determined, as a matter of law, that Liberty Mutual didn’t owe him a\n\nduty sounding in contract. Appellant’s Opening Br. at 18. In his view, the jury was\n\n“capable and required” to make that determination because the existence of a contract\n\nduty entails a factual inquiry into whether the parties formed an agreement to procure\n\ninsurance. Id. Woolman is doubly wrong. In the first instance, “whether a duty exists\n\nis a question of law” for the court to decide. Deal v. Bowman, 188 P.3d 941, 946\n\n(Kan. 2008) (brackets omitted) (quoting Nero v. Kan. State Univ., 861 P.2d 768, 772\n\n(Kan. 1993)). Even if the jury made a predicate factual finding that a contract exists,\n\nwhether Liberty Mutual owed Woolman a duty in connection with that contract is a\n\nquestion of law. And second, regardless, factual findings are not impervious to\n\njudicial scrutiny on a Rule 50 motion simply because the jury is the factfinder. To the\n\ncontrary, Rule 50 requires the court to interrogate the facts to determine whether a\n\n“legally sufficient evidentiary basis” exists to find for a party on a given issue. See\n\nFed. R. Civ. P. 50(a)(1).\n\n In short, the district court didn’t exceed its authority in holding, as a matter of\n\nlaw, that Liberty Mutual didn’t owe a contractual duty to Woolman. We now turn to\n\nthe substantive question whether judgment as a matter of law was appropriate as to\n\nWoolman’s breach-of-duty counterclaim.\n\n B. Contractual Breach\n\n Woolman advances two contract-based theories for why Liberty Mutual owed\n\nhim a duty to exercise care in procuring insurance: (i) that Liberty Mutual agreed to\n\n 10\n\fprocure insurance for him directly as its client; and (ii) that he was an intended third-\n\nparty beneficiary of Liberty Mutual’s agreement to procure insurance for Clemens\n\nCoal. The district court rejected both theories, finding no evidence either that\n\nWoolman and Liberty Mutual had a contractual relationship or that Clemens Coal\n\nand Liberty Mutual intended to procure insurance for Woolman’s benefit. We take\n\nthese issues in turn.\n\n 1. Evidence of a Direct Contractual Relationship between\n Liberty Mutual and Woolman\n\n To resolve Woolman’s first theory, we must determine whether a reasonable\n\njury, viewing the evidence in the light most favorable to Woolman, could conclude\n\nthat Liberty Mutual and Woolman formed a “contract to procure insurance.” See\n\nCasas v. Farmers Ins. Exch., 130 P.3d 1201, 1209 (Kan. Ct. App. 2005). In assessing\n\nwhether such an agreement exists, we apply “the general rules pertaining to the law\n\nof contracts,” Marker v. Preferred Fire Ins. Co., 506 P.2d 1163, 1168 (Kan. 1973),\n\nincluding the requirements of mutual assent to and consideration for the bargain, see\n\nUnified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 549 (Kan. 2012). The record in\n\nthis case is bereft of evidence supporting either requirement.4\n\n\n 4\n Because we conclude that Liberty Mutual didn’t manifest its assent to\nprocure insurance for Woolman, we needn’t reach the question whether Woolman\nprovided consideration for the bargain. In any case, Woolman doesn’t proffer any\nevidence on that score. Ordinarily, the consideration for an agent’s undertaking to\nprocure insurance is the agent’s expectation of pecuniary gain when the proposed\ninsured pays the policy’s premium. See Marker, 506 P.2d at 1168. Here, no evidence\nsuggests that Woolman personally—rather than Clemens Coal—would have paid the\npremium for the coverage that he sought. Accordingly, even if the parties mutually\nassented to procure such coverage, no binding contract exists.\n 11\n\f At the outset, there’s no evidence that Woolman requested insurance from\n\nLiberty Mutual or that Liberty Mutual undertook to insure him. Woolman admittedly\n\nwasn’t involved in negotiating the policy and didn’t instruct Worley to request any\n\ncoverages on his behalf. That Woolman, as Clemens Coal’s president, subjectively\n\ndesired coverage to indemnify himself from liability for black-lung claims doesn’t\n\nevince mutual assent with Liberty Mutual to procure such coverage.5 Indeed, there’s\n\nno evidence that Liberty Mutual was even aware of Woolman’s need for black-lung-\n\nclaim coverage. Regardless, Clemens Coal, not Woolman, was the client for whom\n\nLiberty Mutual undertook to procure insurance.\n\n Lacking evidence of an express agreement, Woolman asserts that Liberty\n\nMutual implicitly agreed to procure insurance for him. In effect, he reasons that, as\n\nthe individual with responsibility for Clemens Coal’s actions, he was Liberty\n\nMutual’s true “client.” See id. (“[R]easonable implication can be used to determine\n\nwho the client is[.]”). It is hornbook law, however, that an implied-in-fact contract\n\ndoesn’t exist absent evidence of the parties’ “mutual intent to contract.” Mai v.\n\nYoutsey, 646 P.2d 475, 479 (Kan. 1982); see also Smith v. Amoco Prod. Co., 31 P.3d\n\n255, 265 (Kan. 2001) (“[An implied contract] is the product of agreement, although it\n\n\n\n\n 5\n Woolman suggests that an agreement to procure insurance for him requires\nonly that he “selected and relied upon Liberty Mutual.” See Appellant’s Reply Br. at\n2. Although probative of his estoppel defenses, Woolman’s reliance is irrelevant to\nthe question whether he and Liberty Mutual had a binding contract to procure\ninsurance. As with any contract, parties to an agreement to procure insurance must\nmutually assent to its terms. Unilateral reliance doesn’t create a contract.\n 12\n\fis not expressed in words.”). Liberty Mutual’s intent to contract with Clemens Coal\n\ndoesn’t equate to an intent to contract with its officers.\n\n Perhaps recognizing this, Woolman suggests that his status as the “client” is\n\nirrelevant to whether Liberty Mutual owed him a duty to exercise care. See\n\nAppellant’s Opening Br. at 23. Woolman essentially argues that the duty attaches\n\nregardless of whether Liberty Mutual contracted to procure insurance for him\n\nbecause Liberty Mutual should have undertaken to insure him.6 Yet Kansas law is\n\nclear: an insurance agent “owes to the client” the duty to exercise care. Marshel, 634\n\nP.2d at 141 (emphasis added); see also Marker, 506 P.2d at 1169 (noting that a\n\nfailure to procure insurance requires that “the relationship of broker and client has\n\nbeen established with mutual obligations arising from that relationship”). Absent\n\nevidence of an agent-client relationship, Liberty Mutual wasn’t contractually bound\n\nto procure insurance for Woolman.\n\n 2. Evidence that Clemens Coal and Liberty Mutual Intended to\n Procure Insurance for Woolman’s Benefit\n\n Woolman’s assertion that he is an intended beneficiary of Liberty Mutual and\n\nClemens Coal’s agreement to procure insurance similarly fails. Under Kansas law,\n\n“parties are presumed to contract for themselves, and their intent that a third person\n\n\n 6\n Woolman further elaborates that, had Liberty Mutual procured the proper\ninsurance, the policy “would have made Woolman a party as an insured under the\nblack lung endorsement.” See Appellant’s Opening Br. at 23. This puts the cart\nbefore the horse. Whether Woolman would have been a party to a hypothetical\ninsurance contract has no bearing on whether he was a party to an agreement to\nprocure such insurance. And regardless, an insured party isn’t necessarily a\ncontracting party.\n 13\n\freceive a direct benefit must be clearly expressed in the contract.” Byers v. Snyder,\n\n237 P.3d 1258, 1265 (Kan. Ct. App. 2010); see also In re Shevling, 97 P.3d 1036,\n\n1040 (Kan. 2004) (same). An individual claiming third-party-beneficiary status has\n\nthe burden of showing the existence of a “provision in the contract that operates to\n\nhis benefit.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1231 (Kan.\n\n2005) (quoting Hartford Fire Ins. Co. v. W. Fire Ins. Co., 597 P.2d 622, 632 (Kan.\n\n1979)). A reviewing court, in turn, applies “general rules for construction of\n\ncontracts” in assessing a third-party-beneficiary claim. Byers, 237 P.3d at 1265.\n\n Woolman doesn’t allege that Liberty Mutual and Clemens Coal had a written\n\ncontract to procure insurance for his benefit. Rather, he asserts that they had an oral\n\nagreement, an implicit condition of which was that Liberty Mutual procure coverage\n\nto indemnify him from liability for black-lung-benefits claims. Woolman thus inverts\n\nthe ordinary standard of proof for third-party-beneficiary claims: rather than identify\n\nan express contractual provision that operates to his direct benefit, he contends that\n\nthe agreement to procure insurance for Clemens Coal implicitly guaranteed that the\n\npolicy would contain such a provision.7 Kansas law, however, doesn’t permit a third\n\nparty to enforce a contract on an unspoken promise of future beneficence. Instead,\n\nthe contract itself must explicitly and directly benefit the third party. See Fasse v.\n\nLower Heating & Air Conditioning, Inc., 736 P.2d 930, 932 (Kan. 1987).\n\n\n 7\n Woolman faults the district court for ignoring the distinction between the\ncontract to procure insurance and the insurance policy itself. Yet the distinction is one\nwithout a material difference. Woolman adduced no evidence at trial that any agreement\n“clearly expressed” an intent to benefit him. Cf. Fasse, 736 P.2d at 932.\n 14\n\f Regardless, even assuming Woolman could enforce an implicit agreement to\n\nprocure insurance for his benefit, there’s no evidence that the parties reached such an\n\nagreement. “[L]ess strict proof is required for an oral agreement to procure insurance\n\nthan for a contract of insurance.” Marshel, 634 P.2d at 142. Indeed, evidence that the\n\nparties expressly assented to all the agreement’s terms is unnecessary, as many terms\n\ncan be established by “[r]easonable implication.” Id. An implied contract to procure\n\ninsurance, however, requires that the client provide “sufficiently definite directions”\n\nfor the agent to “consummate the final insurance contract” and that the agent “know\n\nor have ready access to the information needed to procure the insurance or be able to\n\nimply the terms from prior dealings.” See Casas, 130 P.3d at 1210 (quoting Harris v.\n\nAlbrecht, 86 P.3d 728, 731, 732 (Utah 2004)).\n\n Woolman doesn’t seriously contend that either he or Worley gave Smith\n\n“sufficiently definite directions” with respect to the need to insure him against black-\n\nlung claims. To the contrary, Woolman testified at trial that he wasn’t involved in the\n\ntransaction and that he didn’t instruct Worley to obtain any specific coverages from\n\nSmith. Worley, in turn, testified that he didn’t request black-lung coverage because\n\nhe “assumed” it would be included. It is of no moment that Woolman and Worley’s\n\n“intent” was to procure insurance that would benefit Woolman, see Appellant’s\n\nOpening Br. at 13 (citing Appellant’s App. vol. 5 at 795:18–796:3, 801:5–6; id. vol. 6\n\nat 964:7–12), because they never communicated that intent to Smith.\n\n Similarly, there’s no evidence that Smith knew the “information needed to\n\nprocure” black-lung-claim coverage. See Casas, 130 P.3d at 1210. At trial, Smith\n\n 15\n\ftestified that she’d never sold insurance to a coal company and that she wasn’t aware\n\nof either the Act or black-lung disease when she sold the policy to Clemens Coal.\n\nWoolman replies on appeal that Smith must have been “well-apprised” of Clemens\n\nCoal’s coverage needs because Liberty Mutual specifically targeted the coal industry.\n\nOpening Br. at 51. Woolman’s only evidence for this assertion is a Liberty Mutual\n\nproforma in which Clemens Coal is listed as a “Prospect” and a box is checked for\n\n“Target Market.” Appellant’s App. vol. 7 at 1113. Yet an isolated checkmark, devoid\n\nof substantive elaboration, reveals nothing about Smith’s or Liberty Mutual’s\n\nknowledge of black-lung-claim coverage. And regardless, Smith testified that the\n\ncheckmark was likely inadvertent and may not have reflected an actual campaign to\n\ntarget coal companies.\n\n Woolman nevertheless argues that, by soliciting business from a “known coal\n\ncompany,” Liberty Mutual contemplated that the contract to procure insurance would\n\n“incorporate[] the ‘well-known’ standards” associated with such companies.\n\nAppellant’s Opening Br. at 22 (quoting Marshel, 634 P.2d at 141). Woolman asserts\n\nthat coverage shielding a coal company’s president from liability for black-lung-\n\ndisease benefits is a “well-known” standard because the Act has for decades imposed\n\npersonal liability for such benefits. Appellant’s Opening Br. at 22. Smith, however,\n\nwasn’t aware of this purported standard because she had no experience selling\n\ninsurance to a coal company. An agent contemplates the incorporation of standards\n\n\n\n\n 16\n\fthat are known within the agent’s “field of expertise,” Marshel, 634 P.2d at 142, not\n\nstandards about which the agent has no knowledge.8\n\n Finally, there’s no evidence that Smith had “ready access to the information\n\nneeded to procure” black-lung-claim coverage. See Casas, 130 P.3d at 1210 (quoting\n\nHarris, 86 P.3d at 732). Woolman’s argument to the contrary relies on an implausible\n\nchain of inferences: that Smith would have asked to review, and Worley would have\n\ntendered, Clemens Coal’s expiring Hartford insurance policy; that the Hartford\n\npolicy, according to the IMA broker who procured it, would have contained a black-\n\nlung-claim endorsement; and that Smith, following her “standard” procedure, would\n\nhave duplicated that endorsement. See Appellant’s Opening Br. at 21–22 (quoting\n\nAppellant’s App. vol. 5 at 584:16–585:12, 587:1–5). The evidence adduced at trial\n\ndoesn’t support these inferences. Worley didn’t recall sharing the Hartford policy,\n\nand Smith didn’t recall receiving it; insufficient portions of the policy were produced\n\nto confirm its black-lung-claim coverage, and Hartford previously questioned such\n\ncoverage; and Smith testified that duplicating an expiring policy was just one of\n\nmany ways that she determined coverage. It is unreasonable to infer from this\n\nevidence that Worley shared, and Smith duplicated, an insurance policy with black-\n\n\n\n\n 8\n Woolman insists that the contract to procure insurance must have\nincorporated well-known standards because his and Worley’s “intent was to be in\ncompliance with the law in procuring insurance.” Appellant’s Opening Br. at 22. But\nsuch subjective intent doesn’t somehow impute to Smith any knowledge of a standard\nrequiring insurance for a coal company’s president—much less a reciprocal intent to\nbenefit the president.\n 17\n\flung-claim coverage—regardless of what the parties purportedly would have done\n\nand what the Hartford policy would have contained.\n\n Nonetheless, even assuming Smith followed her standard procedure and\n\nundertook to replicate the Hartford policy’s black-lung endorsement, that undertaking\n\nsuggests only that Smith intended to provide the same coverages that Clemens Coal\n\nenjoyed with its prior carrier, not that Smith intended to benefit Woolman personally.\n\nWoolman counters that, by undertaking to procure a black-lung endorsement, Smith\n\nnecessarily intended to directly benefit him “by eliminating his personal liability” for\n\nblack-lung claims. Appellant’s Reply Br. at 9.9 According to Woolman, it is\n\nsufficient that he would be an “identifiable beneficiary” of the endorsement. Id.10 Yet\n\njust because the endorsement would operate to Woolman’s benefit doesn’t mean that\n\nSmith intended to benefit Woolman. At most, the benefit would be incidental to and\n\n\n\n 9\n Woolman stresses that the generic black-lung endorsement, set forth in 20\nC.F.R. § 726.203(a), references the Act’s personal-liability provisions, including\nthose applicable to a coal company’s president, see, e.g., 30 U.S.C. § 933(d). At\nmost, this reference alerts the contracting parties that the black-lung endorsement\nwould shield the president from personal liability. But “[k]nowledge that a contract\nwill benefit a third party is not intent to benefit the third party.” Noller v. GMC Truck\n& Coach Div., 772 P.2d 271, 275 (Kan. 1989).\n 10\n Woolman goes so far as to suggest that, because the purpose of insurance is\nto “minimize a risk,” anyone “who would realize the mitigation or elimination of the\nrisk” is an insurance policy’s intended beneficiary. Appellant’s Reply Br. at 8. This\nargument ignores the “intent” requirement entirely, enshrining a per se rule that\nwould bestow third-party-beneficiary status on anyone whose risk an insurance\ncontract happens to mitigate. A third-party beneficiary, however, is “one who the\ncontracting parties intended should receive a direct benefit from the contract,” see\nMartin v. Edwards, 548 P.2d 779, 784–85 (Kan. 1976), not one who happens to\nbenefit from the contract, see In re Shevling, 97 P.3d at 1040.\n 18\n\fnot the direct object of the endorsement, the primary purpose of which is to insure\n\nminers who contract black-lung disease.\n\n In short, there’s no evidence that the parties intended—impliedly or\n\notherwise—to procure black-lung-claim insurance for Woolman’s direct benefit.\n\nClemens Coal didn’t give Liberty Mutual any directions regarding a need to procure\n\nsuch coverage, and Liberty Mutual didn’t already know of or have access to the\n\ninformation needed to procure it. Even Woolman’s “standard procedure” chain of\n\ninferences suggests, at most, that Liberty Mutual intended to procure black-lung-\n\nclaim coverage for Clemens Coal as a company. Although Liberty Mutual may have\n\nowed Clemens Coal a duty to “exercise care” in that undertaking, it doesn’t follow\n\nthat it owed a separate duty to Woolman in his personal capacity.\n\n C. Tortious Breach\n\n Woolman devotes much of his time fighting an uphill battle on the breach-of-\n\ncontract front while leaving his tort theory relatively underdeveloped. His argument\n\nthat Liberty Mutual owed him a duty sounding in tort reduces to the proposition that,\n\nas Clemens Coal’s president, he is a foreseeable plaintiff because the Act makes him\n\npersonally liable for uninsured black-lung benefits. He further contends that the\n\nprobability of harm—i.e., that he would be held personally liable—is foreseeable\n\nbecause “the risk is delineated by law[] and claims for black lung disease are\n\ncommon among coal companies.” Appellant’s Reply Br. at 10.\n\n This analysis misses the point. Regardless of whether Woolman is a\n\nforeseeable plaintiff under an ordinary negligence analysis, his foreseeability, alone,\n\n 19\n\fdoesn’t give rise to a duty to exercise care in procuring insurance. The Court of\n\nAppeals of Kansas explained in Marshel that the duty arises in tort as “part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking” to procure insurance. 634 P.2d at 142. The Court of Appeals\n\nhas since read Marshel as holding that “a tort duty only arises when there is a\n\ncontractual undertaking by the agent” for the client. Duncan v. Janosik, Inc., 203\n\nP.3d 88 (Kan. Ct. App. 2009) (unpublished table decision). As a result, “when there\n\nis no contract duty between the agent and client, . . . there is no basis from which a\n\ntort duty may arise.” Id. Our conclusion that Liberty Mutual didn’t owe Woolman a\n\ncontract duty thus forecloses the possibility that it owed him a duty sounding in tort.\n\nII. The Judicial Estoppel Doctrine\n\n In a last-ditch attempt to salvage his breach-of-duty counterclaim, Woolman\n\nasserts that Liberty Mutual should be judicially estopped from disputing that it owed\n\nhim a duty because it took inconsistent positions on the issue in the district court and\n\nobtained an unfair advantage as a result. Woolman initially asserted judicial estoppel\n\nin his post-trial motion to alter or amend the district court’s judgment. Because\n\nWoolman could have, but did not, raise the issue before judgment, the district court\n\ndeclined to alter or amend its judgment on that basis. On appeal, Woolman argues\n\nthat this decision “resulted in manifest injustice and was clear error.” Appellant’s\n\nOpening Br. at 29.\n\n Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.”\n\nNew Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893\n\n 20\n\fF.2d 1033, 1037 (9th Cir. 1990)). We therefore review the district court’s judicial-\n\nestoppel decision for abuse of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193\n\n(10th Cir. 2008). “A court abuses its discretion only ‘when it makes a clear error of\n\njudgment, exceeds the bounds of permissible choice, or when its decision is arbitrary,\n\ncapricious or whimsical, or results in a manifestly unreasonable judgment.’” Eastman\n\nv. Union Pac. R.R., 493 F.3d 1151, 1156 (10th Cir. 2007) (quoting United States v.\n\nNickl, 427 F.3d 1286, 1300 (10th Cir. 2005)).\n\n The judicial-estoppel doctrine’s purpose is to “prevent improper use of judicial\n\nmachinery” by parties attempting to “deliberately chang[e] positions according to the\n\nexigencies of the moment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th\n\nCir. 2013) (quoting New Hampshire, 532 U.S. at 749–50). The doctrine’s\n\napplicability generally turns on whether a party’s later position is “clearly\n\ninconsistent” with its former position; whether the party successfully persuaded the\n\ncourt to accept its previous position, such that the court’s later acceptance of an\n\ninconsistent position would “create ‘the perception that either the first or the second\n\ncourt was misled’”; and whether the party would derive an unfair advantage unless\n\nestopped. New Hampshire, 532 U.S. at 750–51 (internal quotation marks omitted)\n\n(first quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999); then quoting\n\nEdwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). The analysis is\n\nultimately fact-specific, however, and requires no “inflexible prerequisites.” Id. at\n\n751.\n\n\n\n 21\n\f Woolman argues that judicial estoppel is warranted in this case for three\n\nprimary reasons. He asserts, first, that Liberty Mutual waived its right to dispute that\n\nit owed him a duty when it admitted in its answer to his counterclaim that he was the\n\n“real party in interest” to the claim. Appellant’s Opening Br. at 29–30. Second, he\n\ncontends that Liberty Mutual took “contrary position[s]” on whether it owed him a\n\nduty and on whether he must prove a duty independent of Liberty Mutual’s\n\nobligations to Clemens Coal. Id. at 30. And third, he contends that Liberty Mutual\n\ngained an “unfair advantage” by neglecting to contest the existence of a duty until\n\nlate in the litigation. Appellant’s Reply Br. at 14. All three arguments fail.\n\n First, Liberty Mutual’s admission that Woolman is the real party in interest to\n\nassert the breach-of-duty counterclaim has no bearing on the claim’s merits. The real\n\nparty in interest is simply “the person who possesses the right sought to be enforced.”\n\nO’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). An entitlement to\n\nenforce a right, however, “neither enlarges nor restricts a party’s substantive right to\n\nrecover in a particular action.” Id. at 1077. Hence, even if Woolman is the “real party\n\nin interest” to the counterclaim, he still must demonstrate a substantive right to\n\nrecover on the claim, including by proving that Liberty Mutual owed him a duty.\n\nLiberty Mutual didn’t somehow waive that obligation.11\n\n\n\n 11\n Woolman adds that Liberty Mutual failed to timely raise, and thus waived,\nany “objection based on [an] alleged failure to have the action prosecuted in the name\nof the real party in interest.” Appellant’s Opening Br. at 30 (quoting O’Donnell, 681\nP.2d at 1077). This is a strawman, because Liberty Mutual doesn’t purport to raise\nsuch an objection. Liberty Mutual disputes that it owed Woolman a duty, not that\n 22\n\f Second, Liberty Mutual never took a contrary position on the existence of a\n\nduty. Woolman argues that Liberty Mutual initially “assumed” it owed him a duty,\n\nAppellant’s Opening Br. at 31, citing Liberty Mutual’s assertion in the pretrial order\n\nthat it “did not breach any assumed duty to Woolman in the issuance of the Liberty\n\nMutual Policy,” Appellant’s App. vol. 1 at 96. Yet “assumed,” in this context, is an\n\nadjective meaning “not true” or “supposed.” It is not, as Woolman suggests, a\n\ntransitive verb denoting an “acceptance” or “undertaking” of a position. That is,\n\nLiberty Mutual didn’t accept that it owed Woolman a duty but rather asserted that it\n\ndidn’t breach a nonexistent duty to him. Liberty Mutual’s later position that it didn’t\n\nowe Woolman a duty isn’t inconsistent with this earlier position. See New\n\nHampshire, 532 U.S. at 750.12\n\n Liberty Mutual also never took a contrary position on whether Woolman must\n\nprove that it owed him a duty independent of any duty that it owed to Clemens Coal.\n\nWoolman stresses that Liberty Mutual didn’t make the argument that he must prove\n\nan independent duty until after the close of his case-in-chief. That Liberty Mutual\n\nwaited to raise the argument, however, doesn’t mean it ever adopted a contrary\n\n\nWoolman has the capacity to assert the breach-of-duty counterclaim. Woolman\nconflates these distinct concepts.\n 12\n As further evidence that Liberty Mutual initially admitted it owed him duty,\nWoolman notes that Liberty Mutual failed to assert absence of a duty “as a defense”\nin the pretrial order. Appellant’s Opening Br. at 31. He emphasizes that Liberty\nMutual asserted a defense to the breach element of his counterclaim but didn’t\nspecifically contest the duty element. Yet Liberty Mutual’s silence on the duty\nelement isn’t an admission as to that element, much less a “clearly inconsistent”\nposition.\n 23\n\fposition. Indeed, Woolman’s only evidence of inconsistency is that Liberty Mutual\n\ndidn’t raise the independent-duty argument in its summary judgment briefing but\n\ninstead focused solely on whether it breached a duty to Clemens Coal. Yet Liberty\n\nMutual’s omission of the argument doesn’t constitute an affirmative position to the\n\ncontrary. Cf. Appellant’s Reply Br. at 14 (reading the omission as Liberty Mutual\n\ntaking the view that “Woolman need not prove a duty independent of that owed to\n\nClemens Coal”).13\n\n Third, and last, Liberty Mutual didn’t obtain an “unfair advantage” by failing\n\nto contest that it owed Woolman a duty until its motion for judgment as a matter of\n\nlaw. See New Hampshire, 532 U.S. at 751. Woolman reasons that he “had no\n\nexpectation [duty] was an issue to be tried,” because Liberty Mutual didn’t dispute\n\nthat it owed him a duty in its answer, in the pretrial order, or in its summary-\n\njudgment briefing. Appellant’s Opening Br. at 30. This is tantamount to arguing that\n\na party needn’t prove an element of its claim unless the other party disputes it. Yet\n\nWoolman had the burden of proving that a legal duty existed as part of his prima\n\nfacie case, regardless of whether Liberty Mutual raised the issue. Accordingly,\n\nLiberty Mutual’s initial failure to contest the issue didn’t prejudice Woolman.\n\n Woolman’s evidence, in brief, falls short of demonstrating entitlement to\n\njudicial estoppel—much less that the district court abused its discretion in refusing to\n\n\n\n 13\n Because Liberty Mutual didn’t espouse inconsistent positions on the\nindependent-duty question, we needn’t address whether Liberty Mutual persuaded the\ndistrict court to adopt an earlier, contrary position.\n 24\n\festop Liberty Mutual from contesting that it owed Woolman a duty. We therefore\n\ndecline to disturb the district court’s judgment.\n\nIII. Woolman’s Estoppel Defenses\n\n Woolman advances several arguments in support of his entitlement to\n\nequitable and promissory estoppel. As a threshold issue, he contends that the district\n\ncourt erred in declining to submit to the jury a series of interrogatories that related to\n\nhis estoppel defenses. He then argues that the district court, in resolving his estoppel\n\ndefenses, failed to bind itself to factual findings implicit in the jury’s verdict in the\n\ncounterclaim trial. Next, he asserts that the district court misapplied the law to his\n\nestoppel defenses. And finally, he contends that the district court erred in failing to\n\nuse estoppel to expand the Liberty Mutual policy’s coverages beyond its terms.\n\n A. The Special Interrogatories\n\n Before trial, Woolman asked the district court to submit his estoppel defenses\n\nto the jury as well as several special interrogatories regarding the defenses. The court\n\ndenied both requests, and instead limited the trial to the breach-of-duty counterclaim.\n\nOn appeal, Woolman contends that the court erred in thus limiting the trial and that,\n\ninstead, it should have asked the jury to make factual findings that would have\n\ncontrolled the court’s resolution of the estoppel defenses. He avers that the absence\n\nof such explicit guidance from the jury’s interrogatory answers resulted in the court\n\nmaking findings in its estoppel ruling that were contrary to findings implicit in the\n\njury’s verdict.\n\n\n\n 25\n\f We review de novo whether, “as a whole, the district court’s jury instructions\n\ncorrectly stated the governing law and provided the jury with an ample understanding\n\nof the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129,\n\n1132 (10th Cir. 2009) (quoting World Wide Ass’n of Specialty Programs v. Pure,\n\nInc., 450 F.3d 1132, 1139 (10th Cir. 2006)). But we review a decision whether to\n\ngive a particular instruction only for abuse of discretion. Webb v. ABF Freight Sys.,\n\nInc., 155 F.3d 1230, 1248 (10th Cir. 1998). If the instructions “as a whole adequately\n\nstate[] the law, the refusal to give a particular requested instruction is not an abuse of\n\ndiscretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.\n\n1990).\n\n Here, the jury instructions as a whole adequately stated the governing law\n\nregarding Kansas’ exercise-care duty. The district court didn’t abuse its discretion in\n\ndeclining to further instruct the jury about defenses not at issue in the trial. The court\n\nspecifically bifurcated the litigation, submitting Woolman’s legal counterclaim to the\n\njury while reserving for itself resolution of Woolman’s equitable defenses. Given this\n\nbifurcation, an instruction on equitable defenses not at issue in the jury trial risked\n\nmisleading the jury in its “understanding of the issues and law applicable to the case\n\nbefore it.” United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). The court\n\nproperly declined to obfuscate the issues in this manner.14\n\n\n 14\n To the extent Woolman challenges the district court’s refusal to submit the\nestoppel defenses to the jury, that argument also fails. “Entitlement to a jury trial is a\nquestion of law which we review de novo.” Bowdry v. United Airlines, Inc., 58 F.3d\n1483, 1489 (10th Cir. 1995). Unless a statute speaks to a jury-trial right, we look to\n 26\n\f B. The Jury’s “Implicit Findings”\n\n Woolman stakes much of his estoppel argument on the assertion that the\n\ndistrict court, in ruling on his estoppel defenses, erred in failing to bind itself to the\n\n“implicit findings” that the jury made regarding his breach-of-duty counterclaim and\n\nin failing to consider “alternative factual findings” that the jury could have made to\n\nsupport its verdict. See Appellant’s Opening Br. at 34. Woolman insists that when, as\n\nhere, legal and equitable claims are “commingled,” the Seventh Amendment\n\nprohibits a court from “reaching factual conclusions contrary to those explicitly or\n\nimplicitly reached by the jury.” Id. at 33. Liberty Mutual counters that a court must\n\nbind itself only to the jury’s findings on “common questions of fact” and argues that,\n\nin this case, no common factual issues bound the court. Appellee’s Br. at 26–27\n\n(quoting Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 875 (10th Cir.\n\n2005)).\n\n In an appeal from a bench trial, we review the district court’s factual findings\n\nfor clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th\n\nCir. 2001). Where the case also involves a jury trial, we must “take into account the\n\nbinding effect” on the trial court of the jury’s findings as to issues of fact common to\n\nboth the legal and the equitable claims. Smith v. Diffee Ford–Lincoln–Mercury, Inc.,\n\n\n\nthe Seventh Amendment to determine entitlement to a jury trial. See Tull v. United\nStates, 481 U.S. 412, 417 & n.3 (1987). Though the Seventh Amendment guarantees\nthe right to a jury trial in any suit involving “legal rights,” this guarantee doesn’t\nextend to “equitable rights.” Bowdry, 58 F.3d at 1489. Hence, Woolman had no\nentitlement to a jury trial on his equitable defenses.\n 27\n\f298 F.3d 955, 965 (10th Cir. 2002). This ensures that litigants’ Seventh Amendment\n\njury-trial rights aren’t rendered meaningless on such common factual issues. See id.\n\n(quoting Ag Servs. of Am. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)). The jury’s\n\nfindings, however, bind the court only to the extent that “fact issues central to a claim\n\nare decided by a jury upon evidence that would justify its conclusion.” Brinkman v.\n\nDep’t of Corrections, 21 F.3d 370, 372–73 (10th Cir. 1994).\n\n Here, the parties’ protracted focus on the jury’s implicit findings is largely\n\nacademic, because no factual findings bound the district court in its disposition of\n\nWoolman’s estoppel defenses. Our previous discussion makes clear that the jury’s\n\nverdict for Woolman on his counterclaim lacked competent “evidence that would\n\njustify its conclusion.” See id. at 372. And regardless, before issuing its estoppel\n\ndecision, the district court granted Liberty Mutual’s motion for judgment as a matter\n\nof law and set aside the verdict—thus nullifying any factual findings explicit or\n\nimplicit in the verdict. See Appellant’s App. vol. 2 at 340 (“The court sets aside the\n\njury’s verdict and award . . . .”). The jury’s factual findings, of course, couldn’t\n\nconstrain the court if the verdict wasn’t intact. Cf. Nielsen, 231 F.3d at 731\n\n(concluding that, because the trial court “left intact the jury’s verdict and its explicit\n\nfindings and those necessarily implicit from the verdict,” those findings bound the\n\ncourt).\n\n Because the district court properly set aside the verdict as contrary to the\n\nevidence under Federal Rule of Civil Procedure 50, we needn’t inquire further\n\nwhether the court made factual findings inconsistent with the jury’s implicit\n\n 28\n\ffindings.15 We therefore turn to the court’s substantive analysis of Woolman’s\n\nestoppel defenses.\n\n C. The Substantive Law of Estoppel\n\n Woolman protests the district court’s purported misapplication of the law in\n\ndisposing of his equitable- and promissory-estoppel defenses. In an appeal from a\n\nbench trial, we review the district court’s conclusions of law de novo. Sanpete Water\n\nConservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177–78\n\n(10th Cir. 2000). We continue to review the court’s factual findings for clear error.\n\nId. at 1177.\n\n A party asserting equitable estoppel must show that another party, “by its acts,\n\nrepresentations, admissions, or silence when it had a duty to speak, induced [the first\n\nparty] to believe certain facts existed,” and also that the first party “rightfully relied\n\n\n\n 15\n Woolman would have us conclude that the jury made a series of findings in\nreaching its verdict, but as Woolman recites them, these findings are implausible and\nignore mountains of evidence to the contrary. According to Woolman, the findings\ninclude that Worley gave Smith a copy of the Hartford policy; that the policy\ncontained a black-lung endorsement; that Smith followed her “standard” procedure to\ncopy the endorsement; and that Clemens Coal didn’t have actual notice that the\nLiberty Mutual policy differed in its coverages from policies offered through IMA.\nNone of these findings have a reasonable basis in the record—and thus, the jury\ncouldn’t have implied them in its verdict.\n Woolman’s misguided analysis relies on the flawed notion that the jury could\nnot have reached its verdict without implying these findings. But a simpler rationale\nfor the verdict accords with the weight of the evidence and doesn’t rely on a complex\nweb of unlikely implicit findings: in determining that Liberty Mutual breached a duty\nto Woolman, the jury concluded that Liberty Mutual negligently failed to familiarize\nitself with and procure the “proper coverage” that coal companies like Clemens Coal\nrequire. This rationale is entirely consistent with the district court’s resolution of\nWoolman’s estoppel defenses.\n 29\n\fand acted upon such belief.” Mut. Life Ins. Co. of N.Y. v. Bernasek, 682 P.2d 667,\n\n730 (Kan. 1984) (quoting Cosgrove v. Young, 642 P.2d 75, 84 (Kan. 1982)).\n\nEquitable estoppel therefore “has two fundamental elements: misrepresentation and\n\ndetrimental reliance.” United Cities Gas Co. v. Brock Expl. Co., 995 F. Supp. 1284,\n\n1297 (D. Kan. 1998). Promissory estoppel similarly requires a representation\n\ninducing reliance; the difference being that, for promissory estoppel, “the\n\nrepresentation is promissory rather than to an existing fact.” Marker, 506 P.2d at\n\n1170.16\n\n Here, the district court found no evidence that Liberty Mutual represented or\n\npromised to procure black-lung coverage. To prove the representation element,\n\nWoolman falls back on the jury’s “implicit finding[]” that Smith “promise[d] to\n\nduplicate Clemens Coal’s previous coverage in conformity with her standard\n\nprocedure.” Appellant’s Opening Br. at 43. Our rejection of the “implicit findings”\n\nthesis above predetermines our rejection of it here. See discussion, supra Section\n\nIII.B. Furthermore, even drawing all reasonable inferences in Woolman’s favor,\n\nthere’s no evidence that Smith promised to duplicate coverages or that she even\n\ninformed Worley that her “standard” procedure involved duplication. Nevertheless,\n\neven if Smith promised to duplicate the Hartford policy’s coverages, there’s no\n\nevidence that she promised to duplicate black-lung coverage. The suggestion that\n\nSmith made such a promise presupposes that she received a copy of the Hartford\n\n\n 16\n The promissory “representation” also needn’t be a “misrepresentation.” See\nBouton v. Byers, 321 P.3d 780, 792 (Kan. Ct. App. 2014) (clarifying this distinction).\n 30\n\fpolicy and that the policy had black-lung coverage to duplicate—two facts with no\n\nbasis in the record.\n\n Lacking evidence of a promise to duplicate coverage, Woolman argues that\n\nSmith “had a duty to inform Clemens Coal if she could not duplicate coverage” and\n\nthat Smith’s silence in the face of that duty induced Clemens Coal to believe that she\n\nundertook to duplicate coverage. Appellant’s Opening Br. at 43. This inverts the\n\nanalysis. Absent evidence that Clemens Coal asked Smith to duplicate coverage or\n\nthat Smith promised to do so, Smith’s “silence” represented nothing. Clemens Coal\n\ncouldn’t construe such silence as a promise that Smith would duplicate coverage if\n\nthere was no baseline expectation that Smith would duplicate coverage. Accordingly,\n\nSmith had no “duty” to inform Clemens Coal that she couldn’t duplicate coverage.\n\nThe necessary predicate to an obligation to correct an earlier representation is, after\n\nall, the existence of an earlier representation. Woolman’s estoppel defenses fail on\n\nthe first element. See Ram Co. v. Estate of Kobbeman, 696 P.2d 936, 944 (Kan. 1985)\n\n(stating that an estoppel claim fails if any essential element “is lacking or is not\n\nsatisfactorily proved”) (quoting 28 Am. Jur. 2d Estoppel & Waiver §§ 35–36 (1964)).\n\n Assuming Woolman could prove that Smith promised to duplicate coverage,\n\nhe nevertheless fails to show that he reasonably relied on that promise. The district\n\ncourt found that any reliance wasn’t reasonable, in part, because Woolman failed to\n\nread the insurance policy, which unambiguously excluded coverage for black-lung\n\nclaims. On appeal, Woolman doesn’t dispute that he didn’t read the policy but asserts\n\nthat he had a duty to read only the “application for insurance.” Appellant’s Opening\n\n 31\n\fBr. at 44. He contends that “an insured has a right to assume the policy provides the\n\ncoverage requested—here, the same coverages as The Hartford policy . . . .” Id. Yet\n\nWoolman doesn’t even claim that he read the insurance application. Any purported\n\ndistinction between the policy and the application is thus immaterial, because\n\nWoolman cannot credibly claim reliance on either document. See Chism v. Protective\n\nLife Ins. Co., 234 P.3d 780, 792 (Kan. 2010) (duty to read application); Jones v.\n\nReliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) (duty to\n\nread policy).\n\n Regardless, the parties failed to produce the application at trial and could only\n\nspeculate about its contents.17 At most, Worley—the individual who submitted the\n\napplication—testified that he would not have requested black-lung coverage because\n\nhe “assumed” that it would be included.18 Yet, even if Worley did request black-lung\n\ncoverage, it was still unreasonable for Woolman to assume that the resulting policy\n\nconformed to Worley’s request. As the district court noted, at $43,000 cheaper than\n\ncomparable policies offered through IMA, the policy’s bargain-bin price tag was a\n\nred flag that should have prompted further inquiry into the policy’s coverages. IMA’s\n\naccount representative for Clemens Coal even testified that he “absolutely” would\n\nhave advised Clemens Coal to investigate the price discrepancy. Yet no one\n\n\n 17\n Woolman’s reliance on the jury’s “implicit findings” to supply the\napplication’s missing terms is no more enlightening here than with the policy itself.\n 18\n To the extent Woolman argues that Worley requested black-lung coverage\nby tendering, and asking Smith to duplicate, a prior policy with black-lung coverage,\nthere’s no evidence for either proposition.\n 32\n\finvestigated further, and instead Clemens Coal selected the policy because it was\n\ncheaper than the alternatives. This willful blindness to the policy’s coverages vitiates\n\nthe reasonableness of any reliance.\n\n In short, the district court correctly rejected Woolman’s estoppel defenses\n\nbecause there’s no evidence either that Liberty Mutual represented it would procure\n\nblack-lung coverage or that Woolman reasonably relied on such a representation.19\n\nWe see no clear error in the district court’s factual findings, and our de novo review\n\nof the court’s legal analysis compels the same result.\n\n D. Expansion of Coverage\n\n The parties stipulated before trial that the Liberty Mutual policy excludes\n\ncoverage for black-lung-disease claims. Woolman urged the district court to use an\n\nestoppel theory to expand the policy’s terms to cover such claims, but the district\n\ncourt found no compelling reason to expand coverage in this case. Woolman now\n\nembarks on a protracted critique of the district court’s refusal to expand coverage.\n\n\n\n 19\n Having found that Woolman’s estoppel defenses failed on the representation\nand reliance elements, the district court had no occasion to determine whether justice\nrequired it to enforce a promise. On appeal, Woolman nevertheless urges us to estop\nLiberty Mutual from denying black-lung coverage because it would be “substantially\nunjust” to empower an insurance company to “deny coverage that a jury determined\nshould have been provided,” thereby exposing him to personal liability for Spencer’s\nblack-lung claim. Appellant’s Opening Br. at 47. Yet Woolman’s success on his\nbreach-of-duty claim doesn’t automatically entitle him to relief on his estoppel\ndefenses, especially where, as here, the jury’s determination lacked a legally\nsufficient evidentiary basis. Nor does substantial injustice automatically flow from\nthe risk of incurring liability. The absurd implication of Woolman’s entreaty is that\n“injustice” would befall every litigant who happens to be sued. We decline to\nsanction such a theory.\n 33\n\f Kansas recognizes the general rule that estoppel “cannot be used to expand . . .\n\ncoverage” beyond an insurance contract’s terms. W. Food Prods. Co. v. United States\n\nFire Ins. Co., 699 P.2d 579, 584 (Kan. Ct. App. 1985). Courts eschew this practice\n\nbecause it risks “creating coverage where none has been contracted for.” Aselco, Inc.\n\nv. Hartford Ins. Grp., 21 P.3d 1011, 1020 (Kan. Ct. App. 2001) (quoting Johnson v.\n\nStudyvin, 828 F. Supp. 877, 886 (D. Kan. 1993)). Nonetheless, the Supreme Court of\n\nKansas has, on one occasion, affirmed a court’s use of estoppel to expand coverage.\n\nHeinson v. Porter, 772 P.2d 778, 783 (Kan. 1989), overruled on other grounds by\n\nGlenn v. Fleming, 799 P.2d 79, 81 (Kan. 1990). Although the court in Heinson\n\napplied a multi-factor, totality-of-the-circumstances test,20 a panel of the Court of\n\nAppeals of Kansas has since read the decision as sanctioning expansion of coverage\n\nonly when there are affirmative representations and acts of coverage and when the\n\npolicy doesn’t “explicitly exclude the incident at issue.” See Russell v. Farmers Ins.\n\nCo., 163 P.3d 1266, 1269 (Kan. Ct. App. 2007).\n\n\n\n\n 20\n In Heinson, a homeowner’s insurance policy excluded coverage for injuries\nor damages arising out of “business pursuits.” 772 P.2d at 779–80. The insured\noperated a day care out of her home when a child under her care sustained severe\ninjuries. Though the Supreme Court of Kansas concluded that the day care was a\n“business pursuit,” it nonetheless held that the insurer was estopped from denying\ncoverage for the child’s injuries. The court cited several facts for this holding,\nincluding that the insurer knew the insured was operating a day-care business out of\nher home; that the insurer’s agent told the insured that the policy would cover the\nbusiness; that the insured’s application for insurance disclosed that she operated the\nbusiness; that the insurer didn’t express any concern over the business to the insured;\nand that the insurance policy didn’t expressly exclude day-care activity. See id. at\n783.\n 34\n\f The district court in this case, relying on Russell, found it dispositive that\n\nLiberty Mutual made no affirmative representations or acts as to black-lung-claim\n\ncoverage and that the resulting policy explicitly excluded coverage for such claims.\n\nWoolman protests that the court erred in giving dispositive weight to these two\n\nfactors, arguing that, under Heinson’s totality-of-the-circumstances test, “no factor,\n\nor two, is dispositive.” Appellant’s Reply Br. at 22. Yet many of the circumstances\n\nthat Woolman faults the district court for ignoring are untethered to the record. These\n\ninclude the chain of inferences about Smith using her “standard” procedure to\n\nduplicate coverages, as well as the assertion that Liberty Mutual knew of Clemens\n\nCoal’s insurance needs because it was “targeting” the coal industry. Appellant’s\n\nOpening Br. at 51. Though Heinson counsels a multi-factor analysis, it doesn’t\n\ncompel any consideration of factors that contradict the evidence.\n\n In any case, it defies logic to use an estoppel theory to expand coverage by\n\nconsidering all circumstances except the touchstone element of an estoppel claim: a\n\nrepresentation inducing reliance. We hesitate to create by judicial fiat an obligation\n\nthat an insurer never induced an insured to believe existed. Similarly, that the policy\n\nexplicitly excluded the disputed coverage, and that the insured acquiesced to the\n\nexclusion by purchasing the policy, strongly counsels against expanding coverage\n\nbeyond the agreed terms. Even if these two factors—representation and exclusion—\n\n\n\n\n 35\n\faren’t dispositive, they warrant substantial weight in the analysis. Certainly, the\n\ndistrict court didn’t abuse its discretion in emphasizing these factors.21\n\n Woolman tries to surmount this assessment by contending that public policy\n\nrequires an expansion of coverage to “preserve[] the rights” to which he is entitled.\n\nAppellant’s Reply Br. at 22. Woolman insists that expansion would simply “hold\n\nLiberty Mutual accountable for that which it said it would do,” i.e., procure black-\n\nlung coverage for his benefit. Id. at 23. Liberty Mutual, however, never undertook to\n\ninsure Woolman directly or to procure insurance for his benefit. Accordingly, rather\n\nthan preserve a preexisting right, Woolman is impermissibly attempting to acquire a\n\nnew one. Public policy doesn’t favor rewarding insureds who neglect to request\n\ncoverage, then years later claim that the insurer wrongfully failed to procure such\n\ncoverage when the risk actually materializes.\n\n Woolman posits a second public-policy rationale for expanding coverage: that\n\nhe “already possessed” a right to black-lung coverage because federal regulations\n\nrequire coal companies to acquire insurance with such coverage. Appellant’s Opening\n\nBr. at 55. But the regulations on which Woolman relies define a coal mine operator’s\n\nduty to obtain coverage. See 20 C.F.R. § 726.1 (“[T]he Federal Coal Mine Health and\n\n\n\n 21\n Neither party suggests a standard for our review of decisions whether to\nexpand insurance coverage. We generally review a court’s assessment of disparate,\ncase-specific factors under the deferential abuse-of-discretion standard. See, e.g.,\nMocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015); Surefoot LC v.\nSure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). We need not decide the\nissue, however, because we would affirm the district court’s assessment of the\ncircumstances relevant to expanding coverage under even a de novo standard.\n 36\n\fSafety Act . . . requires each coal mine operator . . . to secure the payment of [black-\n\nlung] benefits . . . .”); 30 U.S.C. § 933(a) (“[E]ach operator of a coal mine . . . shall\n\nsecure the payment of benefits . . . .”); see also 20 C.F.R. § 726.2(a) (“[Part 726]\n\nprovides rules directing and controlling the circumstances under which a coal mine\n\noperator shall fulfill his insurance obligations under the Act.”). The regulations\n\ncontain no similar provisions imposing an independent duty on an insurer to include\n\nblack-lung coverage in every policy issued to a coal company. There are no\n\ncompelling public-policy reasons to ignore the regulations’ plain language and shift\n\nfrom the operator to the insurance company the burden to conform insurance policies\n\nto the Act.\n\n Having considered the totality of the circumstances, we conclude that the\n\ndistrict court didn’t err in declining Woolman’s extraordinary request to expand the\n\ncoverages in the Liberty Mutual policy. Liberty Mutual never represented it would\n\nprocure the coverage that Woolman now seeks, and the policy itself clearly excludes\n\nsuch coverage. No other compelling consideration justifies rewriting the agreement—\n\ntwenty years later—to Woolman’s liking.\n\n CONCLUSION\n\n For the above reasons, we affirm the district court.\n\n\n\n\n 37", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358500/", "author_raw": "PHILLIPS, Circuit Judge."}]}	TYMKOVICH	HOLMES	PHILLIPS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581247/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 14, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n LIBERTY MUTUAL FIRE INSURANCE\n COMPANY,\n\n Plaintiff Counter Defendant -\n Appellee,\n\n v. No. 17-3249\n\n DENNIS WOOLMAN,\n\n Defendant Counter Plaintiff -\n Appellant,\n\n and\n\n CLAYTON SPENCER,\n\n Defendant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 2:14-CV-02332-CM)\n _________________________________\n\nWesley J. Carrillo (Christopher M. Napolitano with him on the briefs), of Ensz & Jester\nP.C., Kansas City, Missouri, for Defendant-Appellant.\n\nBruce A. Moothart (Charlie J. Harris, Jr., with him on the brief), of Seyferth Blumenthal\n& Harris LLC, Kansas City, Missouri, for Plaintiff-Appellee.\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n\f _________________________________\n\n The Federal Coal Mine Health and Safety Act of 1969, as amended by the\n\nBlack Lung Benefits Act (the Act), 30 U.S.C. §§ 901–945, requires coal-mine\n\noperators to provide benefits to miners whose contraction of pneumoconiosis—i.e.,\n\n“black lung” disease—from prolonged exposure to coal dust renders them totally\n\ndisabled. To comply with the Act, coal-mine operators must purchase a worker’s\n\ncompensation and employer liability insurance policy containing an “endorsement”\n\nensuring coverage for black-lung-benefits claims. In this appeal, Dennis Woolman—\n\nformer president of The Clemens Coal Company—challenges the district court’s\n\ndetermination that Liberty Mutual Fire Insurance Company didn’t breach a duty to\n\nhim by failing to procure for Clemens Coal an insurance policy with a black-lung-\n\ndisease endorsement. Woolman also challenges the district court’s rejection of his\n\nargument that Liberty Mutual should be estopped from denying black-lung-disease\n\ncoverage, insisting that he relied on Liberty Mutual to provide such coverage.\n\nExercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n BACKGROUND\n\n Clemens Coal operated a surface coal mine in Pittsburg, Kansas until it filed\n\nfor bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it\n\nwent bankrupt. Federal law required Clemens Coal to maintain worker’s\n\ncompensation insurance with a special endorsement covering miners’ black-lung-\n\ndisease benefits. See 20 C.F.R. § 726.203(a). Failure to procure such insurance could\n\n\n\n 2\n\fexpose Clemens Coal’s president and its officers to individual liability for black-lung\n\nbenefits and for civil penalties. Id. § 726.302(c)(1)–(2).\n\n Woolman didn’t personally procure insurance for Clemens Coal but instead\n\ndelegated that responsibility to James Worley, an outside consultant. In 1996, Worley\n\nreceived from Deborah Smith, Liberty Mutual’s commercial sales agent, a proposal\n\nto provide worker’s compensation and employer liability insurance to Clemens Coal.\n\nAfter some discussion, Worley agreed to purchase from Liberty Mutual a package\n\npolicy with effective dates of November 1, 1996, to November 1, 1997.1 Not only did\n\nthe policy not contain a black-lung-claim endorsement, it expressly excluded\n\ncoverage for federal occupational disease claims, such as those arising under the Act.\n\n Smith had never sold insurance to a coal company and wasn’t aware of the\n\nindustry’s exposure to black-lung claims. Worley, for his part, had never procured\n\ninsurance directly from an insurance company. Instead, he ordinarily consulted a\n\nbroker—Insurance Management Associates, Inc. (IMA)—and compared premiums\n\nand coverages from several potential carriers. In this case, he selected the Liberty\n\nMutual policy because it was $43,000 cheaper than comparable policies offered\n\nthrough IMA. An IMA account representative cautioned that this significant price\n\ndisparity suggested that the policy provided different coverages. Worley, however,\n\nassumed the Liberty Mutual policy was cheaper because it wasn’t in the assigned risk\n\npool for Kansas, which Worley understood to have considerably higher premiums.\n\n\n 1\n Although the policy was effective until November 1, 1997, it was cancelled\non August 1, 1997, because of non-payment.\n 3\n\f In 2012, Clayton Spencer—a former Clemens Coal employee—filed a claim\n\nwith the United States Department of Labor (DOL) against Clemens Coal for benefits\n\nunder the Act. After some investigation, the DOL advised Woolman that Clemens\n\nCoal was uninsured for black-lung-benefits claims as of July 25, 1997—the last date\n\nof Spencer’s employment—and that, without such coverage, Woolman, as Clemens\n\nCoal’s president, could be held personally liable. Woolman promptly tendered the\n\nclaim to Liberty Mutual for a legal defense. Liberty Mutual responded with a\n\nreservation-of-rights letter, stating that it hadn’t yet determined coverage for\n\nSpencer’s claim but that it would provide a defense during its investigation. In a\n\nfollow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a\n\ncompany—not Woolman personally—and advised Woolman to retain his own\n\ncounsel.\n\n Liberty Mutual eventually concluded that the insurance policy doesn’t cover\n\nSpencer’s black-lung claim, and on July 9, 2014, it sued Clemens Coal2 and\n\nWoolman seeking a judicial declaration to that effect. The parties stipulated that the\n\npolicy, “as written,” doesn’t provide coverage for Spencer’s claim. Appellee’s Suppl.\n\nApp. vol. 1 at 15. Nevertheless, as an affirmative defense, Woolman asserted that\n\nLiberty Mutual is estopped from denying black-lung-claim coverage because he\n\nexpected the coverage would be included in the policy and because the policy should\n\n\n\n 2\n The district court dismissed the claims against Clemens Coal before trial\nbecause Clemens Coal was bankrupt and thus no longer a legal entity capable of\nbeing sued.\n 4\n\fbe construed to contain the coverages that federal law requires. Woolman also\n\nasserted a counterclaim against Liberty Mutual for breach of its duty to act as a\n\nreasonably prudent insurance agent in procuring the proper coverage for Clemens\n\nCoal.\n\n The district court conducted a jury trial on Woolman’s counterclaim and a\n\nbench trial on his estoppel defenses. During the jury trial, the parties offered little\n\ndirect evidence of the circumstances surrounding Worley and Smith’s transaction to\n\nprocure insurance. Indeed, neither Worley nor Smith recalled the transaction, and\n\nWoolman, who admittedly wasn’t involved, had “no idea” what transpired.\n\nAppellant’s App. vol. 5 at 828:3. Smith resorted to testifying that, when selling\n\ninsurance, she ordinarily relied on the client to inform her of its required coverages.\n\nYet neither Smith nor Worley recalled discussing a need for black-lung-claim\n\ncoverage. And, while both Woolman and Worley testified that they intended to\n\nprocure whatever coverages were required by law, they admitted that they didn’t read\n\nthe policy to verify that it included such coverages; instead, they just assumed it did.\n\n Smith also testified that it was her “standard” practice to determine coverage\n\nneeds by reviewing the client’s expiring policy, though she regularly consulted other\n\nresources as many clients declined to share their prior policies. Id. vol. 4 at 585:1.\n\nWorley, in turn, testified that he would have permitted Smith to copy the coverages\n\nin Clemens Coal’s expiring policy from Hartford Underwriters Insurance Company.\n\nYet Smith didn’t recall reviewing the Hartford policy, and Worley didn’t recall\n\nsharing it. Regardless, the parties could only speculate as to the coverages that Smith\n\n 5\n\fmay have copied from the Hartford policy because it couldn’t be located at trial.3\n\nFurther, Liberty Mutual proffered evidence that, in a 1996 reservation-of-rights letter\n\nto Clemens Coal regarding a previous black-lung claim, Hartford questioned whether\n\nthe policy covered such claims.\n\n Lacking direct evidence of Worley and Smith’s transaction, Woolman urged\n\nthe jury to find that Liberty Mutual failed to exercise reasonable care in procuring\n\ninsurance based on the following series of inferences: (i) that Worley intended to\n\nacquire, and therefore requested, black-lung-claim coverage; (ii) that Worley\n\ntendered the expiring Hartford policy for Smith to review; (iii) that the policy\n\ncontained a black-lung-claim endorsement; and (iv) that Smith, following her\n\n“standard” practice, agreed to duplicate that coverage for Clemens Coal. Id. vol. 4 at\n\n585:1. Liberty Mutual countered that there was insufficient evidence for these\n\ninferences, and at the close of Woolman’s case-in-chief, it moved for judgment as a\n\nmatter of law under Rule 50 of the Federal Rules of Civil Procedure. The district\n\ncourt took the motion under advisement and permitted additional briefing.\n\n Woolman requested that the district court instruct the jury that his breach-of-\n\nduty counterclaim required proof (i) that Liberty Mutual undertook to procure\n\nworker’s compensation insurance for Clemens Coal; (ii) that Liberty Mutual failed to\n\nexercise appropriate skill, care, and diligence in that undertaking; and (iii) that\n\n\n\n 3\n Only the policy’s “Change in Information Page” was produced, and it didn’t\nindicate whether the policy had a black-lung-claim endorsement. Appellee’s Suppl.\nApp. vol. 2 at 40.\n 6\n\fWoolman suffered damages as a result. The court rejected Woolman’s request and,\n\ninstead, instructed the jury to determine whether Liberty Mutual breached a duty that\n\nit owed directly to Woolman as its “client.” Id. vol. 2 at 225–26. Woolman objected\n\nand asked for an instruction that Liberty Mutual owed him a duty “as the President of\n\nClemens Coal,” but the court overruled the objection. Id. vol. 5 at 907:23.\n\n The jury returned a verdict for Woolman on his counterclaim, awarding him\n\n$18,000 in damages. The district court, however, set aside the verdict and granted\n\nLiberty Mutual’s motion for judgment as a matter of law, concluding that Liberty\n\nMutual didn’t owe a duty to Woolman. Liberty Mut. Fire Ins. Co. v. Clemens Coal\n\nCo., 2016 WL 5817073, at 2 (D. Kan. Oct. 4, 2016). Months later, the court issued\n\nfindings of fact and conclusions of law regarding Woolman’s estoppel defenses. See\n\nLiberty Mut. Fire Ins. Co. v. Clemens Coal Co., 250 F. Supp. 3d 825, 832–39 (D.\n\nKan. 2017). Finding no evidence that Liberty Mutual had represented it would\n\nprocure black-lung-claim coverage for Woolman or that Woolman justifiably relied\n\non such representations, the court ruled against Woolman on the estoppel defenses\n\nand entered judgment in Liberty Mutual’s favor on its declaratory judgment claim.\n\nId. at 839.\n\n Woolman filed a post-trial motion to alter or amend the court’s judgment or, in\n\nthe alternative, for a new trial on his estoppel defenses. The court denied the motion.\n\nWoolman timely appealed, challenging the counterclaim and estoppel rulings as well\n\nas aspects of the court’s denial of his request for post-trial relief.\n\n\n\n 7\n\f DISCUSSION\n\n We first address Woolman’s argument that the district court improperly\n\ngranted Liberty Mutual’s motion for judgment as a matter of law on his breach-of-\n\nduty counterclaim. We then turn to Woolman’s argument that Liberty Mutual should\n\nbe judicially estopped from contesting that it owed him a duty. Finally, we address\n\nWoolman’s challenges to the district court’s ruling on his equitable and promissory\n\nestoppel defenses.\n\nI. Woolman’s Breach-of-Duty Counterclaim\n\n We review de novo a grant of judgment as a matter of law under Rule 50,\n\napplying the same standards as the district court. Elm Ridge Expl. Co., LLC v. Engle,\n\n721 F.3d 1199, 1216 (10th Cir. 2013). “All reasonable inferences are drawn in favor\n\nof the nonmoving party and this court does ‘not make credibility determinations or\n\nweigh the evidence.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir.\n\n2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\n\n(2000)). Judgment as a matter of law is appropriate only if a “reasonable jury would\n\nnot have a legally sufficient evidentiary basis” to find for the opposing party.\n\nFed. R. Civ. P. 50(a)(1); see also Finley v. United States, 82 F.3d 966, 968 (10th Cir.\n\n1996) (“[T]he evidence [must] point[] but one way and [be] susceptible to no\n\nreasonable inferences which may support the opposing party’s position.”) (quoting\n\nQ.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989) (per curiam)).\n\n\n\n\n 8\n\f A. The “Exercise Care” Duty\n\n This is an action for failure to procure insurance, not an action for breach of\n\nthe insurance contract itself. Kansas courts refer to insurance agents’ “exercise care\n\nduty” in such circumstances. Marshel Invs., Inc. v. Cohen, 634 P.2d 133, 141 (Kan.\n\nCt. App. 1981). Under Kansas law, the general rule is that “an insurance agent or\n\nbroker who undertakes to procure insurance for another owes to the client the duty to\n\nexercise the skill, care and diligence that would be exercised by a reasonably prudent\n\nand competent insurance agent or broker acting under the same circumstances.” Id.\n\nAn action for breach of this duty sounds in both contract and tort because “the duty is\n\nboth an implied contractual term of the undertaking (contract duty) and a part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking (tort duty).” Id. at 142.\n\n On appeal, Woolman argues that, although his breach-of-duty counterclaim\n\nsounds in both tort and contract, the district court “ignored the contractual nature” of\n\nthe claim. Appellant’s Opening Br. at 18. Woolman misreads the court’s analysis.\n\nThe court expressly rejected Woolman’s contract theory, reasoning that Liberty\n\nMutual didn’t undertake to procure insurance for Woolman as its client or to make\n\nthe insurance contract for his benefit. That the court referenced a “negligence\n\ncounterclaim,” see Liberty Mut., 2016 WL 5817073, at 2, doesn’t vitiate its\n\nsubstantive contractual analysis, cf. Appellant’s Opening Br. at 18 (arguing that the\n\nreference “demonstrates the [court’s] misapplication of the claim”).\n\n\n\n 9\n\f Woolman also contends that the district court “invaded the province of the\n\njury” when it determined, as a matter of law, that Liberty Mutual didn’t owe him a\n\nduty sounding in contract. Appellant’s Opening Br. at 18. In his view, the jury was\n\n“capable and required” to make that determination because the existence of a contract\n\nduty entails a factual inquiry into whether the parties formed an agreement to procure\n\ninsurance. Id. Woolman is doubly wrong. In the first instance, “whether a duty exists\n\nis a question of law” for the court to decide. Deal v. Bowman, 188 P.3d 941, 946\n\n(Kan. 2008) (brackets omitted) (quoting Nero v. Kan. State Univ., 861 P.2d 768, 772\n\n(Kan. 1993)). Even if the jury made a predicate factual finding that a contract exists,\n\nwhether Liberty Mutual owed Woolman a duty in connection with that contract is a\n\nquestion of law. And second, regardless, factual findings are not impervious to\n\njudicial scrutiny on a Rule 50 motion simply because the jury is the factfinder. To the\n\ncontrary, Rule 50 requires the court to interrogate the facts to determine whether a\n\n“legally sufficient evidentiary basis” exists to find for a party on a given issue. See\n\nFed. R. Civ. P. 50(a)(1).\n\n In short, the district court didn’t exceed its authority in holding, as a matter of\n\nlaw, that Liberty Mutual didn’t owe a contractual duty to Woolman. We now turn to\n\nthe substantive question whether judgment as a matter of law was appropriate as to\n\nWoolman’s breach-of-duty counterclaim.\n\n B. Contractual Breach\n\n Woolman advances two contract-based theories for why Liberty Mutual owed\n\nhim a duty to exercise care in procuring insurance: (i) that Liberty Mutual agreed to\n\n 10\n\fprocure insurance for him directly as its client; and (ii) that he was an intended third-\n\nparty beneficiary of Liberty Mutual’s agreement to procure insurance for Clemens\n\nCoal. The district court rejected both theories, finding no evidence either that\n\nWoolman and Liberty Mutual had a contractual relationship or that Clemens Coal\n\nand Liberty Mutual intended to procure insurance for Woolman’s benefit. We take\n\nthese issues in turn.\n\n 1. Evidence of a Direct Contractual Relationship between\n Liberty Mutual and Woolman\n\n To resolve Woolman’s first theory, we must determine whether a reasonable\n\njury, viewing the evidence in the light most favorable to Woolman, could conclude\n\nthat Liberty Mutual and Woolman formed a “contract to procure insurance.” See\n\nCasas v. Farmers Ins. Exch., 130 P.3d 1201, 1209 (Kan. Ct. App. 2005). In assessing\n\nwhether such an agreement exists, we apply “the general rules pertaining to the law\n\nof contracts,” Marker v. Preferred Fire Ins. Co., 506 P.2d 1163, 1168 (Kan. 1973),\n\nincluding the requirements of mutual assent to and consideration for the bargain, see\n\nUnified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 549 (Kan. 2012). The record in\n\nthis case is bereft of evidence supporting either requirement.4\n\n\n 4\n Because we conclude that Liberty Mutual didn’t manifest its assent to\nprocure insurance for Woolman, we needn’t reach the question whether Woolman\nprovided consideration for the bargain. In any case, Woolman doesn’t proffer any\nevidence on that score. Ordinarily, the consideration for an agent’s undertaking to\nprocure insurance is the agent’s expectation of pecuniary gain when the proposed\ninsured pays the policy’s premium. See Marker, 506 P.2d at 1168. Here, no evidence\nsuggests that Woolman personally—rather than Clemens Coal—would have paid the\npremium for the coverage that he sought. Accordingly, even if the parties mutually\nassented to procure such coverage, no binding contract exists.\n 11\n\f At the outset, there’s no evidence that Woolman requested insurance from\n\nLiberty Mutual or that Liberty Mutual undertook to insure him. Woolman admittedly\n\nwasn’t involved in negotiating the policy and didn’t instruct Worley to request any\n\ncoverages on his behalf. That Woolman, as Clemens Coal’s president, subjectively\n\ndesired coverage to indemnify himself from liability for black-lung claims doesn’t\n\nevince mutual assent with Liberty Mutual to procure such coverage.5 Indeed, there’s\n\nno evidence that Liberty Mutual was even aware of Woolman’s need for black-lung-\n\nclaim coverage. Regardless, Clemens Coal, not Woolman, was the client for whom\n\nLiberty Mutual undertook to procure insurance.\n\n Lacking evidence of an express agreement, Woolman asserts that Liberty\n\nMutual implicitly agreed to procure insurance for him. In effect, he reasons that, as\n\nthe individual with responsibility for Clemens Coal’s actions, he was Liberty\n\nMutual’s true “client.” See id. (“[R]easonable implication can be used to determine\n\nwho the client is[.]”). It is hornbook law, however, that an implied-in-fact contract\n\ndoesn’t exist absent evidence of the parties’ “mutual intent to contract.” Mai v.\n\nYoutsey, 646 P.2d 475, 479 (Kan. 1982); see also Smith v. Amoco Prod. Co., 31 P.3d\n\n255, 265 (Kan. 2001) (“[An implied contract] is the product of agreement, although it\n\n\n\n\n 5\n Woolman suggests that an agreement to procure insurance for him requires\nonly that he “selected and relied upon Liberty Mutual.” See Appellant’s Reply Br. at\n2. Although probative of his estoppel defenses, Woolman’s reliance is irrelevant to\nthe question whether he and Liberty Mutual had a binding contract to procure\ninsurance. As with any contract, parties to an agreement to procure insurance must\nmutually assent to its terms. Unilateral reliance doesn’t create a contract.\n 12\n\fis not expressed in words.”). Liberty Mutual’s intent to contract with Clemens Coal\n\ndoesn’t equate to an intent to contract with its officers.\n\n Perhaps recognizing this, Woolman suggests that his status as the “client” is\n\nirrelevant to whether Liberty Mutual owed him a duty to exercise care. See\n\nAppellant’s Opening Br. at 23. Woolman essentially argues that the duty attaches\n\nregardless of whether Liberty Mutual contracted to procure insurance for him\n\nbecause Liberty Mutual should have undertaken to insure him.6 Yet Kansas law is\n\nclear: an insurance agent “owes to the client” the duty to exercise care. Marshel, 634\n\nP.2d at 141 (emphasis added); see also Marker, 506 P.2d at 1169 (noting that a\n\nfailure to procure insurance requires that “the relationship of broker and client has\n\nbeen established with mutual obligations arising from that relationship”). Absent\n\nevidence of an agent-client relationship, Liberty Mutual wasn’t contractually bound\n\nto procure insurance for Woolman.\n\n 2. Evidence that Clemens Coal and Liberty Mutual Intended to\n Procure Insurance for Woolman’s Benefit\n\n Woolman’s assertion that he is an intended beneficiary of Liberty Mutual and\n\nClemens Coal’s agreement to procure insurance similarly fails. Under Kansas law,\n\n“parties are presumed to contract for themselves, and their intent that a third person\n\n\n 6\n Woolman further elaborates that, had Liberty Mutual procured the proper\ninsurance, the policy “would have made Woolman a party as an insured under the\nblack lung endorsement.” See Appellant’s Opening Br. at 23. This puts the cart\nbefore the horse. Whether Woolman would have been a party to a hypothetical\ninsurance contract has no bearing on whether he was a party to an agreement to\nprocure such insurance. And regardless, an insured party isn’t necessarily a\ncontracting party.\n 13\n\freceive a direct benefit must be clearly expressed in the contract.” Byers v. Snyder,\n\n237 P.3d 1258, 1265 (Kan. Ct. App. 2010); see also In re Shevling, 97 P.3d 1036,\n\n1040 (Kan. 2004) (same). An individual claiming third-party-beneficiary status has\n\nthe burden of showing the existence of a “provision in the contract that operates to\n\nhis benefit.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1231 (Kan.\n\n2005) (quoting Hartford Fire Ins. Co. v. W. Fire Ins. Co., 597 P.2d 622, 632 (Kan.\n\n1979)). A reviewing court, in turn, applies “general rules for construction of\n\ncontracts” in assessing a third-party-beneficiary claim. Byers, 237 P.3d at 1265.\n\n Woolman doesn’t allege that Liberty Mutual and Clemens Coal had a written\n\ncontract to procure insurance for his benefit. Rather, he asserts that they had an oral\n\nagreement, an implicit condition of which was that Liberty Mutual procure coverage\n\nto indemnify him from liability for black-lung-benefits claims. Woolman thus inverts\n\nthe ordinary standard of proof for third-party-beneficiary claims: rather than identify\n\nan express contractual provision that operates to his direct benefit, he contends that\n\nthe agreement to procure insurance for Clemens Coal implicitly guaranteed that the\n\npolicy would contain such a provision.7 Kansas law, however, doesn’t permit a third\n\nparty to enforce a contract on an unspoken promise of future beneficence. Instead,\n\nthe contract itself must explicitly and directly benefit the third party. See Fasse v.\n\nLower Heating & Air Conditioning, Inc., 736 P.2d 930, 932 (Kan. 1987).\n\n\n 7\n Woolman faults the district court for ignoring the distinction between the\ncontract to procure insurance and the insurance policy itself. Yet the distinction is one\nwithout a material difference. Woolman adduced no evidence at trial that any agreement\n“clearly expressed” an intent to benefit him. Cf. Fasse, 736 P.2d at 932.\n 14\n\f Regardless, even assuming Woolman could enforce an implicit agreement to\n\nprocure insurance for his benefit, there’s no evidence that the parties reached such an\n\nagreement. “[L]ess strict proof is required for an oral agreement to procure insurance\n\nthan for a contract of insurance.” Marshel, 634 P.2d at 142. Indeed, evidence that the\n\nparties expressly assented to all the agreement’s terms is unnecessary, as many terms\n\ncan be established by “[r]easonable implication.” Id. An implied contract to procure\n\ninsurance, however, requires that the client provide “sufficiently definite directions”\n\nfor the agent to “consummate the final insurance contract” and that the agent “know\n\nor have ready access to the information needed to procure the insurance or be able to\n\nimply the terms from prior dealings.” See Casas, 130 P.3d at 1210 (quoting Harris v.\n\nAlbrecht, 86 P.3d 728, 731, 732 (Utah 2004)).\n\n Woolman doesn’t seriously contend that either he or Worley gave Smith\n\n“sufficiently definite directions” with respect to the need to insure him against black-\n\nlung claims. To the contrary, Woolman testified at trial that he wasn’t involved in the\n\ntransaction and that he didn’t instruct Worley to obtain any specific coverages from\n\nSmith. Worley, in turn, testified that he didn’t request black-lung coverage because\n\nhe “assumed” it would be included. It is of no moment that Woolman and Worley’s\n\n“intent” was to procure insurance that would benefit Woolman, see Appellant’s\n\nOpening Br. at 13 (citing Appellant’s App. vol. 5 at 795:18–796:3, 801:5–6; id. vol. 6\n\nat 964:7–12), because they never communicated that intent to Smith.\n\n Similarly, there’s no evidence that Smith knew the “information needed to\n\nprocure” black-lung-claim coverage. See Casas, 130 P.3d at 1210. At trial, Smith\n\n 15\n\ftestified that she’d never sold insurance to a coal company and that she wasn’t aware\n\nof either the Act or black-lung disease when she sold the policy to Clemens Coal.\n\nWoolman replies on appeal that Smith must have been “well-apprised” of Clemens\n\nCoal’s coverage needs because Liberty Mutual specifically targeted the coal industry.\n\nOpening Br. at 51. Woolman’s only evidence for this assertion is a Liberty Mutual\n\nproforma in which Clemens Coal is listed as a “Prospect” and a box is checked for\n\n“Target Market.” Appellant’s App. vol. 7 at 1113. Yet an isolated checkmark, devoid\n\nof substantive elaboration, reveals nothing about Smith’s or Liberty Mutual’s\n\nknowledge of black-lung-claim coverage. And regardless, Smith testified that the\n\ncheckmark was likely inadvertent and may not have reflected an actual campaign to\n\ntarget coal companies.\n\n Woolman nevertheless argues that, by soliciting business from a “known coal\n\ncompany,” Liberty Mutual contemplated that the contract to procure insurance would\n\n“incorporate[] the ‘well-known’ standards” associated with such companies.\n\nAppellant’s Opening Br. at 22 (quoting Marshel, 634 P.2d at 141). Woolman asserts\n\nthat coverage shielding a coal company’s president from liability for black-lung-\n\ndisease benefits is a “well-known” standard because the Act has for decades imposed\n\npersonal liability for such benefits. Appellant’s Opening Br. at 22. Smith, however,\n\nwasn’t aware of this purported standard because she had no experience selling\n\ninsurance to a coal company. An agent contemplates the incorporation of standards\n\n\n\n\n 16\n\fthat are known within the agent’s “field of expertise,” Marshel, 634 P.2d at 142, not\n\nstandards about which the agent has no knowledge.8\n\n Finally, there’s no evidence that Smith had “ready access to the information\n\nneeded to procure” black-lung-claim coverage. See Casas, 130 P.3d at 1210 (quoting\n\nHarris, 86 P.3d at 732). Woolman’s argument to the contrary relies on an implausible\n\nchain of inferences: that Smith would have asked to review, and Worley would have\n\ntendered, Clemens Coal’s expiring Hartford insurance policy; that the Hartford\n\npolicy, according to the IMA broker who procured it, would have contained a black-\n\nlung-claim endorsement; and that Smith, following her “standard” procedure, would\n\nhave duplicated that endorsement. See Appellant’s Opening Br. at 21–22 (quoting\n\nAppellant’s App. vol. 5 at 584:16–585:12, 587:1–5). The evidence adduced at trial\n\ndoesn’t support these inferences. Worley didn’t recall sharing the Hartford policy,\n\nand Smith didn’t recall receiving it; insufficient portions of the policy were produced\n\nto confirm its black-lung-claim coverage, and Hartford previously questioned such\n\ncoverage; and Smith testified that duplicating an expiring policy was just one of\n\nmany ways that she determined coverage. It is unreasonable to infer from this\n\nevidence that Worley shared, and Smith duplicated, an insurance policy with black-\n\n\n\n\n 8\n Woolman insists that the contract to procure insurance must have\nincorporated well-known standards because his and Worley’s “intent was to be in\ncompliance with the law in procuring insurance.” Appellant’s Opening Br. at 22. But\nsuch subjective intent doesn’t somehow impute to Smith any knowledge of a standard\nrequiring insurance for a coal company’s president—much less a reciprocal intent to\nbenefit the president.\n 17\n\flung-claim coverage—regardless of what the parties purportedly would have done\n\nand what the Hartford policy would have contained.\n\n Nonetheless, even assuming Smith followed her standard procedure and\n\nundertook to replicate the Hartford policy’s black-lung endorsement, that undertaking\n\nsuggests only that Smith intended to provide the same coverages that Clemens Coal\n\nenjoyed with its prior carrier, not that Smith intended to benefit Woolman personally.\n\nWoolman counters that, by undertaking to procure a black-lung endorsement, Smith\n\nnecessarily intended to directly benefit him “by eliminating his personal liability” for\n\nblack-lung claims. Appellant’s Reply Br. at 9.9 According to Woolman, it is\n\nsufficient that he would be an “identifiable beneficiary” of the endorsement. Id.10 Yet\n\njust because the endorsement would operate to Woolman’s benefit doesn’t mean that\n\nSmith intended to benefit Woolman. At most, the benefit would be incidental to and\n\n\n\n 9\n Woolman stresses that the generic black-lung endorsement, set forth in 20\nC.F.R. § 726.203(a), references the Act’s personal-liability provisions, including\nthose applicable to a coal company’s president, see, e.g., 30 U.S.C. § 933(d). At\nmost, this reference alerts the contracting parties that the black-lung endorsement\nwould shield the president from personal liability. But “[k]nowledge that a contract\nwill benefit a third party is not intent to benefit the third party.” Noller v. GMC Truck\n& Coach Div., 772 P.2d 271, 275 (Kan. 1989).\n 10\n Woolman goes so far as to suggest that, because the purpose of insurance is\nto “minimize a risk,” anyone “who would realize the mitigation or elimination of the\nrisk” is an insurance policy’s intended beneficiary. Appellant’s Reply Br. at 8. This\nargument ignores the “intent” requirement entirely, enshrining a per se rule that\nwould bestow third-party-beneficiary status on anyone whose risk an insurance\ncontract happens to mitigate. A third-party beneficiary, however, is “one who the\ncontracting parties intended should receive a direct benefit from the contract,” see\nMartin v. Edwards, 548 P.2d 779, 784–85 (Kan. 1976), not one who happens to\nbenefit from the contract, see In re Shevling, 97 P.3d at 1040.\n 18\n\fnot the direct object of the endorsement, the primary purpose of which is to insure\n\nminers who contract black-lung disease.\n\n In short, there’s no evidence that the parties intended—impliedly or\n\notherwise—to procure black-lung-claim insurance for Woolman’s direct benefit.\n\nClemens Coal didn’t give Liberty Mutual any directions regarding a need to procure\n\nsuch coverage, and Liberty Mutual didn’t already know of or have access to the\n\ninformation needed to procure it. Even Woolman’s “standard procedure” chain of\n\ninferences suggests, at most, that Liberty Mutual intended to procure black-lung-\n\nclaim coverage for Clemens Coal as a company. Although Liberty Mutual may have\n\nowed Clemens Coal a duty to “exercise care” in that undertaking, it doesn’t follow\n\nthat it owed a separate duty to Woolman in his personal capacity.\n\n C. Tortious Breach\n\n Woolman devotes much of his time fighting an uphill battle on the breach-of-\n\ncontract front while leaving his tort theory relatively underdeveloped. His argument\n\nthat Liberty Mutual owed him a duty sounding in tort reduces to the proposition that,\n\nas Clemens Coal’s president, he is a foreseeable plaintiff because the Act makes him\n\npersonally liable for uninsured black-lung benefits. He further contends that the\n\nprobability of harm—i.e., that he would be held personally liable—is foreseeable\n\nbecause “the risk is delineated by law[] and claims for black lung disease are\n\ncommon among coal companies.” Appellant’s Reply Br. at 10.\n\n This analysis misses the point. Regardless of whether Woolman is a\n\nforeseeable plaintiff under an ordinary negligence analysis, his foreseeability, alone,\n\n 19\n\fdoesn’t give rise to a duty to exercise care in procuring insurance. The Court of\n\nAppeals of Kansas explained in Marshel that the duty arises in tort as “part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking” to procure insurance. 634 P.2d at 142. The Court of Appeals\n\nhas since read Marshel as holding that “a tort duty only arises when there is a\n\ncontractual undertaking by the agent” for the client. Duncan v. Janosik, Inc., 203\n\nP.3d 88 (Kan. Ct. App. 2009) (unpublished table decision). As a result, “when there\n\nis no contract duty between the agent and client, . . . there is no basis from which a\n\ntort duty may arise.” Id. Our conclusion that Liberty Mutual didn’t owe Woolman a\n\ncontract duty thus forecloses the possibility that it owed him a duty sounding in tort.\n\nII. The Judicial Estoppel Doctrine\n\n In a last-ditch attempt to salvage his breach-of-duty counterclaim, Woolman\n\nasserts that Liberty Mutual should be judicially estopped from disputing that it owed\n\nhim a duty because it took inconsistent positions on the issue in the district court and\n\nobtained an unfair advantage as a result. Woolman initially asserted judicial estoppel\n\nin his post-trial motion to alter or amend the district court’s judgment. Because\n\nWoolman could have, but did not, raise the issue before judgment, the district court\n\ndeclined to alter or amend its judgment on that basis. On appeal, Woolman argues\n\nthat this decision “resulted in manifest injustice and was clear error.” Appellant’s\n\nOpening Br. at 29.\n\n Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.”\n\nNew Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893\n\n 20\n\fF.2d 1033, 1037 (9th Cir. 1990)). We therefore review the district court’s judicial-\n\nestoppel decision for abuse of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193\n\n(10th Cir. 2008). “A court abuses its discretion only ‘when it makes a clear error of\n\njudgment, exceeds the bounds of permissible choice, or when its decision is arbitrary,\n\ncapricious or whimsical, or results in a manifestly unreasonable judgment.’” Eastman\n\nv. Union Pac. R.R., 493 F.3d 1151, 1156 (10th Cir. 2007) (quoting United States v.\n\nNickl, 427 F.3d 1286, 1300 (10th Cir. 2005)).\n\n The judicial-estoppel doctrine’s purpose is to “prevent improper use of judicial\n\nmachinery” by parties attempting to “deliberately chang[e] positions according to the\n\nexigencies of the moment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th\n\nCir. 2013) (quoting New Hampshire, 532 U.S. at 749–50). The doctrine’s\n\napplicability generally turns on whether a party’s later position is “clearly\n\ninconsistent” with its former position; whether the party successfully persuaded the\n\ncourt to accept its previous position, such that the court’s later acceptance of an\n\ninconsistent position would “create ‘the perception that either the first or the second\n\ncourt was misled’”; and whether the party would derive an unfair advantage unless\n\nestopped. New Hampshire, 532 U.S. at 750–51 (internal quotation marks omitted)\n\n(first quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999); then quoting\n\nEdwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). The analysis is\n\nultimately fact-specific, however, and requires no “inflexible prerequisites.” Id. at\n\n751.\n\n\n\n 21\n\f Woolman argues that judicial estoppel is warranted in this case for three\n\nprimary reasons. He asserts, first, that Liberty Mutual waived its right to dispute that\n\nit owed him a duty when it admitted in its answer to his counterclaim that he was the\n\n“real party in interest” to the claim. Appellant’s Opening Br. at 29–30. Second, he\n\ncontends that Liberty Mutual took “contrary position[s]” on whether it owed him a\n\nduty and on whether he must prove a duty independent of Liberty Mutual’s\n\nobligations to Clemens Coal. Id. at 30. And third, he contends that Liberty Mutual\n\ngained an “unfair advantage” by neglecting to contest the existence of a duty until\n\nlate in the litigation. Appellant’s Reply Br. at 14. All three arguments fail.\n\n First, Liberty Mutual’s admission that Woolman is the real party in interest to\n\nassert the breach-of-duty counterclaim has no bearing on the claim’s merits. The real\n\nparty in interest is simply “the person who possesses the right sought to be enforced.”\n\nO’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). An entitlement to\n\nenforce a right, however, “neither enlarges nor restricts a party’s substantive right to\n\nrecover in a particular action.” Id. at 1077. Hence, even if Woolman is the “real party\n\nin interest” to the counterclaim, he still must demonstrate a substantive right to\n\nrecover on the claim, including by proving that Liberty Mutual owed him a duty.\n\nLiberty Mutual didn’t somehow waive that obligation.11\n\n\n\n 11\n Woolman adds that Liberty Mutual failed to timely raise, and thus waived,\nany “objection based on [an] alleged failure to have the action prosecuted in the name\nof the real party in interest.” Appellant’s Opening Br. at 30 (quoting O’Donnell, 681\nP.2d at 1077). This is a strawman, because Liberty Mutual doesn’t purport to raise\nsuch an objection. Liberty Mutual disputes that it owed Woolman a duty, not that\n 22\n\f Second, Liberty Mutual never took a contrary position on the existence of a\n\nduty. Woolman argues that Liberty Mutual initially “assumed” it owed him a duty,\n\nAppellant’s Opening Br. at 31, citing Liberty Mutual’s assertion in the pretrial order\n\nthat it “did not breach any assumed duty to Woolman in the issuance of the Liberty\n\nMutual Policy,” Appellant’s App. vol. 1 at 96. Yet “assumed,” in this context, is an\n\nadjective meaning “not true” or “supposed.” It is not, as Woolman suggests, a\n\ntransitive verb denoting an “acceptance” or “undertaking” of a position. That is,\n\nLiberty Mutual didn’t accept that it owed Woolman a duty but rather asserted that it\n\ndidn’t breach a nonexistent duty to him. Liberty Mutual’s later position that it didn’t\n\nowe Woolman a duty isn’t inconsistent with this earlier position. See New\n\nHampshire, 532 U.S. at 750.12\n\n Liberty Mutual also never took a contrary position on whether Woolman must\n\nprove that it owed him a duty independent of any duty that it owed to Clemens Coal.\n\nWoolman stresses that Liberty Mutual didn’t make the argument that he must prove\n\nan independent duty until after the close of his case-in-chief. That Liberty Mutual\n\nwaited to raise the argument, however, doesn’t mean it ever adopted a contrary\n\n\nWoolman has the capacity to assert the breach-of-duty counterclaim. Woolman\nconflates these distinct concepts.\n 12\n As further evidence that Liberty Mutual initially admitted it owed him duty,\nWoolman notes that Liberty Mutual failed to assert absence of a duty “as a defense”\nin the pretrial order. Appellant’s Opening Br. at 31. He emphasizes that Liberty\nMutual asserted a defense to the breach element of his counterclaim but didn’t\nspecifically contest the duty element. Yet Liberty Mutual’s silence on the duty\nelement isn’t an admission as to that element, much less a “clearly inconsistent”\nposition.\n 23\n\fposition. Indeed, Woolman’s only evidence of inconsistency is that Liberty Mutual\n\ndidn’t raise the independent-duty argument in its summary judgment briefing but\n\ninstead focused solely on whether it breached a duty to Clemens Coal. Yet Liberty\n\nMutual’s omission of the argument doesn’t constitute an affirmative position to the\n\ncontrary. Cf. Appellant’s Reply Br. at 14 (reading the omission as Liberty Mutual\n\ntaking the view that “Woolman need not prove a duty independent of that owed to\n\nClemens Coal”).13\n\n Third, and last, Liberty Mutual didn’t obtain an “unfair advantage” by failing\n\nto contest that it owed Woolman a duty until its motion for judgment as a matter of\n\nlaw. See New Hampshire, 532 U.S. at 751. Woolman reasons that he “had no\n\nexpectation [duty] was an issue to be tried,” because Liberty Mutual didn’t dispute\n\nthat it owed him a duty in its answer, in the pretrial order, or in its summary-\n\njudgment briefing. Appellant’s Opening Br. at 30. This is tantamount to arguing that\n\na party needn’t prove an element of its claim unless the other party disputes it. Yet\n\nWoolman had the burden of proving that a legal duty existed as part of his prima\n\nfacie case, regardless of whether Liberty Mutual raised the issue. Accordingly,\n\nLiberty Mutual’s initial failure to contest the issue didn’t prejudice Woolman.\n\n Woolman’s evidence, in brief, falls short of demonstrating entitlement to\n\njudicial estoppel—much less that the district court abused its discretion in refusing to\n\n\n\n 13\n Because Liberty Mutual didn’t espouse inconsistent positions on the\nindependent-duty question, we needn’t address whether Liberty Mutual persuaded the\ndistrict court to adopt an earlier, contrary position.\n 24\n\festop Liberty Mutual from contesting that it owed Woolman a duty. We therefore\n\ndecline to disturb the district court’s judgment.\n\nIII. Woolman’s Estoppel Defenses\n\n Woolman advances several arguments in support of his entitlement to\n\nequitable and promissory estoppel. As a threshold issue, he contends that the district\n\ncourt erred in declining to submit to the jury a series of interrogatories that related to\n\nhis estoppel defenses. He then argues that the district court, in resolving his estoppel\n\ndefenses, failed to bind itself to factual findings implicit in the jury’s verdict in the\n\ncounterclaim trial. Next, he asserts that the district court misapplied the law to his\n\nestoppel defenses. And finally, he contends that the district court erred in failing to\n\nuse estoppel to expand the Liberty Mutual policy’s coverages beyond its terms.\n\n A. The Special Interrogatories\n\n Before trial, Woolman asked the district court to submit his estoppel defenses\n\nto the jury as well as several special interrogatories regarding the defenses. The court\n\ndenied both requests, and instead limited the trial to the breach-of-duty counterclaim.\n\nOn appeal, Woolman contends that the court erred in thus limiting the trial and that,\n\ninstead, it should have asked the jury to make factual findings that would have\n\ncontrolled the court’s resolution of the estoppel defenses. He avers that the absence\n\nof such explicit guidance from the jury’s interrogatory answers resulted in the court\n\nmaking findings in its estoppel ruling that were contrary to findings implicit in the\n\njury’s verdict.\n\n\n\n 25\n\f We review de novo whether, “as a whole, the district court’s jury instructions\n\ncorrectly stated the governing law and provided the jury with an ample understanding\n\nof the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129,\n\n1132 (10th Cir. 2009) (quoting World Wide Ass’n of Specialty Programs v. Pure,\n\nInc., 450 F.3d 1132, 1139 (10th Cir. 2006)). But we review a decision whether to\n\ngive a particular instruction only for abuse of discretion. Webb v. ABF Freight Sys.,\n\nInc., 155 F.3d 1230, 1248 (10th Cir. 1998). If the instructions “as a whole adequately\n\nstate[] the law, the refusal to give a particular requested instruction is not an abuse of\n\ndiscretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.\n\n1990).\n\n Here, the jury instructions as a whole adequately stated the governing law\n\nregarding Kansas’ exercise-care duty. The district court didn’t abuse its discretion in\n\ndeclining to further instruct the jury about defenses not at issue in the trial. The court\n\nspecifically bifurcated the litigation, submitting Woolman’s legal counterclaim to the\n\njury while reserving for itself resolution of Woolman’s equitable defenses. Given this\n\nbifurcation, an instruction on equitable defenses not at issue in the jury trial risked\n\nmisleading the jury in its “understanding of the issues and law applicable to the case\n\nbefore it.” United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). The court\n\nproperly declined to obfuscate the issues in this manner.14\n\n\n 14\n To the extent Woolman challenges the district court’s refusal to submit the\nestoppel defenses to the jury, that argument also fails. “Entitlement to a jury trial is a\nquestion of law which we review de novo.” Bowdry v. United Airlines, Inc., 58 F.3d\n1483, 1489 (10th Cir. 1995). Unless a statute speaks to a jury-trial right, we look to\n 26\n\f B. The Jury’s “Implicit Findings”\n\n Woolman stakes much of his estoppel argument on the assertion that the\n\ndistrict court, in ruling on his estoppel defenses, erred in failing to bind itself to the\n\n“implicit findings” that the jury made regarding his breach-of-duty counterclaim and\n\nin failing to consider “alternative factual findings” that the jury could have made to\n\nsupport its verdict. See Appellant’s Opening Br. at 34. Woolman insists that when, as\n\nhere, legal and equitable claims are “commingled,” the Seventh Amendment\n\nprohibits a court from “reaching factual conclusions contrary to those explicitly or\n\nimplicitly reached by the jury.” Id. at 33. Liberty Mutual counters that a court must\n\nbind itself only to the jury’s findings on “common questions of fact” and argues that,\n\nin this case, no common factual issues bound the court. Appellee’s Br. at 26–27\n\n(quoting Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 875 (10th Cir.\n\n2005)).\n\n In an appeal from a bench trial, we review the district court’s factual findings\n\nfor clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th\n\nCir. 2001). Where the case also involves a jury trial, we must “take into account the\n\nbinding effect” on the trial court of the jury’s findings as to issues of fact common to\n\nboth the legal and the equitable claims. Smith v. Diffee Ford–Lincoln–Mercury, Inc.,\n\n\n\nthe Seventh Amendment to determine entitlement to a jury trial. See Tull v. United\nStates, 481 U.S. 412, 417 & n.3 (1987). Though the Seventh Amendment guarantees\nthe right to a jury trial in any suit involving “legal rights,” this guarantee doesn’t\nextend to “equitable rights.” Bowdry, 58 F.3d at 1489. Hence, Woolman had no\nentitlement to a jury trial on his equitable defenses.\n 27\n\f298 F.3d 955, 965 (10th Cir. 2002). This ensures that litigants’ Seventh Amendment\n\njury-trial rights aren’t rendered meaningless on such common factual issues. See id.\n\n(quoting Ag Servs. of Am. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)). The jury’s\n\nfindings, however, bind the court only to the extent that “fact issues central to a claim\n\nare decided by a jury upon evidence that would justify its conclusion.” Brinkman v.\n\nDep’t of Corrections, 21 F.3d 370, 372–73 (10th Cir. 1994).\n\n Here, the parties’ protracted focus on the jury’s implicit findings is largely\n\nacademic, because no factual findings bound the district court in its disposition of\n\nWoolman’s estoppel defenses. Our previous discussion makes clear that the jury’s\n\nverdict for Woolman on his counterclaim lacked competent “evidence that would\n\njustify its conclusion.” See id. at 372. And regardless, before issuing its estoppel\n\ndecision, the district court granted Liberty Mutual’s motion for judgment as a matter\n\nof law and set aside the verdict—thus nullifying any factual findings explicit or\n\nimplicit in the verdict. See Appellant’s App. vol. 2 at 340 (“The court sets aside the\n\njury’s verdict and award . . . .”). The jury’s factual findings, of course, couldn’t\n\nconstrain the court if the verdict wasn’t intact. Cf. Nielsen, 231 F.3d at 731\n\n(concluding that, because the trial court “left intact the jury’s verdict and its explicit\n\nfindings and those necessarily implicit from the verdict,” those findings bound the\n\ncourt).\n\n Because the district court properly set aside the verdict as contrary to the\n\nevidence under Federal Rule of Civil Procedure 50, we needn’t inquire further\n\nwhether the court made factual findings inconsistent with the jury’s implicit\n\n 28\n\ffindings.15 We therefore turn to the court’s substantive analysis of Woolman’s\n\nestoppel defenses.\n\n C. The Substantive Law of Estoppel\n\n Woolman protests the district court’s purported misapplication of the law in\n\ndisposing of his equitable- and promissory-estoppel defenses. In an appeal from a\n\nbench trial, we review the district court’s conclusions of law de novo. Sanpete Water\n\nConservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177–78\n\n(10th Cir. 2000). We continue to review the court’s factual findings for clear error.\n\nId. at 1177.\n\n A party asserting equitable estoppel must show that another party, “by its acts,\n\nrepresentations, admissions, or silence when it had a duty to speak, induced [the first\n\nparty] to believe certain facts existed,” and also that the first party “rightfully relied\n\n\n\n 15\n Woolman would have us conclude that the jury made a series of findings in\nreaching its verdict, but as Woolman recites them, these findings are implausible and\nignore mountains of evidence to the contrary. According to Woolman, the findings\ninclude that Worley gave Smith a copy of the Hartford policy; that the policy\ncontained a black-lung endorsement; that Smith followed her “standard” procedure to\ncopy the endorsement; and that Clemens Coal didn’t have actual notice that the\nLiberty Mutual policy differed in its coverages from policies offered through IMA.\nNone of these findings have a reasonable basis in the record—and thus, the jury\ncouldn’t have implied them in its verdict.\n Woolman’s misguided analysis relies on the flawed notion that the jury could\nnot have reached its verdict without implying these findings. But a simpler rationale\nfor the verdict accords with the weight of the evidence and doesn’t rely on a complex\nweb of unlikely implicit findings: in determining that Liberty Mutual breached a duty\nto Woolman, the jury concluded that Liberty Mutual negligently failed to familiarize\nitself with and procure the “proper coverage” that coal companies like Clemens Coal\nrequire. This rationale is entirely consistent with the district court’s resolution of\nWoolman’s estoppel defenses.\n 29\n\fand acted upon such belief.” Mut. Life Ins. Co. of N.Y. v. Bernasek, 682 P.2d 667,\n\n730 (Kan. 1984) (quoting Cosgrove v. Young, 642 P.2d 75, 84 (Kan. 1982)).\n\nEquitable estoppel therefore “has two fundamental elements: misrepresentation and\n\ndetrimental reliance.” United Cities Gas Co. v. Brock Expl. Co., 995 F. Supp. 1284,\n\n1297 (D. Kan. 1998). Promissory estoppel similarly requires a representation\n\ninducing reliance; the difference being that, for promissory estoppel, “the\n\nrepresentation is promissory rather than to an existing fact.” Marker, 506 P.2d at\n\n1170.16\n\n Here, the district court found no evidence that Liberty Mutual represented or\n\npromised to procure black-lung coverage. To prove the representation element,\n\nWoolman falls back on the jury’s “implicit finding[]” that Smith “promise[d] to\n\nduplicate Clemens Coal’s previous coverage in conformity with her standard\n\nprocedure.” Appellant’s Opening Br. at 43. Our rejection of the “implicit findings”\n\nthesis above predetermines our rejection of it here. See discussion, supra Section\n\nIII.B. Furthermore, even drawing all reasonable inferences in Woolman’s favor,\n\nthere’s no evidence that Smith promised to duplicate coverages or that she even\n\ninformed Worley that her “standard” procedure involved duplication. Nevertheless,\n\neven if Smith promised to duplicate the Hartford policy’s coverages, there’s no\n\nevidence that she promised to duplicate black-lung coverage. The suggestion that\n\nSmith made such a promise presupposes that she received a copy of the Hartford\n\n\n 16\n The promissory “representation” also needn’t be a “misrepresentation.” See\nBouton v. Byers, 321 P.3d 780, 792 (Kan. Ct. App. 2014) (clarifying this distinction).\n 30\n\fpolicy and that the policy had black-lung coverage to duplicate—two facts with no\n\nbasis in the record.\n\n Lacking evidence of a promise to duplicate coverage, Woolman argues that\n\nSmith “had a duty to inform Clemens Coal if she could not duplicate coverage” and\n\nthat Smith’s silence in the face of that duty induced Clemens Coal to believe that she\n\nundertook to duplicate coverage. Appellant’s Opening Br. at 43. This inverts the\n\nanalysis. Absent evidence that Clemens Coal asked Smith to duplicate coverage or\n\nthat Smith promised to do so, Smith’s “silence” represented nothing. Clemens Coal\n\ncouldn’t construe such silence as a promise that Smith would duplicate coverage if\n\nthere was no baseline expectation that Smith would duplicate coverage. Accordingly,\n\nSmith had no “duty” to inform Clemens Coal that she couldn’t duplicate coverage.\n\nThe necessary predicate to an obligation to correct an earlier representation is, after\n\nall, the existence of an earlier representation. Woolman’s estoppel defenses fail on\n\nthe first element. See Ram Co. v. Estate of Kobbeman, 696 P.2d 936, 944 (Kan. 1985)\n\n(stating that an estoppel claim fails if any essential element “is lacking or is not\n\nsatisfactorily proved”) (quoting 28 Am. Jur. 2d Estoppel & Waiver §§ 35–36 (1964)).\n\n Assuming Woolman could prove that Smith promised to duplicate coverage,\n\nhe nevertheless fails to show that he reasonably relied on that promise. The district\n\ncourt found that any reliance wasn’t reasonable, in part, because Woolman failed to\n\nread the insurance policy, which unambiguously excluded coverage for black-lung\n\nclaims. On appeal, Woolman doesn’t dispute that he didn’t read the policy but asserts\n\nthat he had a duty to read only the “application for insurance.” Appellant’s Opening\n\n 31\n\fBr. at 44. He contends that “an insured has a right to assume the policy provides the\n\ncoverage requested—here, the same coverages as The Hartford policy . . . .” Id. Yet\n\nWoolman doesn’t even claim that he read the insurance application. Any purported\n\ndistinction between the policy and the application is thus immaterial, because\n\nWoolman cannot credibly claim reliance on either document. See Chism v. Protective\n\nLife Ins. Co., 234 P.3d 780, 792 (Kan. 2010) (duty to read application); Jones v.\n\nReliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) (duty to\n\nread policy).\n\n Regardless, the parties failed to produce the application at trial and could only\n\nspeculate about its contents.17 At most, Worley—the individual who submitted the\n\napplication—testified that he would not have requested black-lung coverage because\n\nhe “assumed” that it would be included.18 Yet, even if Worley did request black-lung\n\ncoverage, it was still unreasonable for Woolman to assume that the resulting policy\n\nconformed to Worley’s request. As the district court noted, at $43,000 cheaper than\n\ncomparable policies offered through IMA, the policy’s bargain-bin price tag was a\n\nred flag that should have prompted further inquiry into the policy’s coverages. IMA’s\n\naccount representative for Clemens Coal even testified that he “absolutely” would\n\nhave advised Clemens Coal to investigate the price discrepancy. Yet no one\n\n\n 17\n Woolman’s reliance on the jury’s “implicit findings” to supply the\napplication’s missing terms is no more enlightening here than with the policy itself.\n 18\n To the extent Woolman argues that Worley requested black-lung coverage\nby tendering, and asking Smith to duplicate, a prior policy with black-lung coverage,\nthere’s no evidence for either proposition.\n 32\n\finvestigated further, and instead Clemens Coal selected the policy because it was\n\ncheaper than the alternatives. This willful blindness to the policy’s coverages vitiates\n\nthe reasonableness of any reliance.\n\n In short, the district court correctly rejected Woolman’s estoppel defenses\n\nbecause there’s no evidence either that Liberty Mutual represented it would procure\n\nblack-lung coverage or that Woolman reasonably relied on such a representation.19\n\nWe see no clear error in the district court’s factual findings, and our de novo review\n\nof the court’s legal analysis compels the same result.\n\n D. Expansion of Coverage\n\n The parties stipulated before trial that the Liberty Mutual policy excludes\n\ncoverage for black-lung-disease claims. Woolman urged the district court to use an\n\nestoppel theory to expand the policy’s terms to cover such claims, but the district\n\ncourt found no compelling reason to expand coverage in this case. Woolman now\n\nembarks on a protracted critique of the district court’s refusal to expand coverage.\n\n\n\n 19\n Having found that Woolman’s estoppel defenses failed on the representation\nand reliance elements, the district court had no occasion to determine whether justice\nrequired it to enforce a promise. On appeal, Woolman nevertheless urges us to estop\nLiberty Mutual from denying black-lung coverage because it would be “substantially\nunjust” to empower an insurance company to “deny coverage that a jury determined\nshould have been provided,” thereby exposing him to personal liability for Spencer’s\nblack-lung claim. Appellant’s Opening Br. at 47. Yet Woolman’s success on his\nbreach-of-duty claim doesn’t automatically entitle him to relief on his estoppel\ndefenses, especially where, as here, the jury’s determination lacked a legally\nsufficient evidentiary basis. Nor does substantial injustice automatically flow from\nthe risk of incurring liability. The absurd implication of Woolman’s entreaty is that\n“injustice” would befall every litigant who happens to be sued. We decline to\nsanction such a theory.\n 33\n\f Kansas recognizes the general rule that estoppel “cannot be used to expand . . .\n\ncoverage” beyond an insurance contract’s terms. W. Food Prods. Co. v. United States\n\nFire Ins. Co., 699 P.2d 579, 584 (Kan. Ct. App. 1985). Courts eschew this practice\n\nbecause it risks “creating coverage where none has been contracted for.” Aselco, Inc.\n\nv. Hartford Ins. Grp., 21 P.3d 1011, 1020 (Kan. Ct. App. 2001) (quoting Johnson v.\n\nStudyvin, 828 F. Supp. 877, 886 (D. Kan. 1993)). Nonetheless, the Supreme Court of\n\nKansas has, on one occasion, affirmed a court’s use of estoppel to expand coverage.\n\nHeinson v. Porter, 772 P.2d 778, 783 (Kan. 1989), overruled on other grounds by\n\nGlenn v. Fleming, 799 P.2d 79, 81 (Kan. 1990). Although the court in Heinson\n\napplied a multi-factor, totality-of-the-circumstances test,20 a panel of the Court of\n\nAppeals of Kansas has since read the decision as sanctioning expansion of coverage\n\nonly when there are affirmative representations and acts of coverage and when the\n\npolicy doesn’t “explicitly exclude the incident at issue.” See Russell v. Farmers Ins.\n\nCo., 163 P.3d 1266, 1269 (Kan. Ct. App. 2007).\n\n\n\n\n 20\n In Heinson, a homeowner’s insurance policy excluded coverage for injuries\nor damages arising out of “business pursuits.” 772 P.2d at 779–80. The insured\noperated a day care out of her home when a child under her care sustained severe\ninjuries. Though the Supreme Court of Kansas concluded that the day care was a\n“business pursuit,” it nonetheless held that the insurer was estopped from denying\ncoverage for the child’s injuries. The court cited several facts for this holding,\nincluding that the insurer knew the insured was operating a day-care business out of\nher home; that the insurer’s agent told the insured that the policy would cover the\nbusiness; that the insured’s application for insurance disclosed that she operated the\nbusiness; that the insurer didn’t express any concern over the business to the insured;\nand that the insurance policy didn’t expressly exclude day-care activity. See id. at\n783.\n 34\n\f The district court in this case, relying on Russell, found it dispositive that\n\nLiberty Mutual made no affirmative representations or acts as to black-lung-claim\n\ncoverage and that the resulting policy explicitly excluded coverage for such claims.\n\nWoolman protests that the court erred in giving dispositive weight to these two\n\nfactors, arguing that, under Heinson’s totality-of-the-circumstances test, “no factor,\n\nor two, is dispositive.” Appellant’s Reply Br. at 22. Yet many of the circumstances\n\nthat Woolman faults the district court for ignoring are untethered to the record. These\n\ninclude the chain of inferences about Smith using her “standard” procedure to\n\nduplicate coverages, as well as the assertion that Liberty Mutual knew of Clemens\n\nCoal’s insurance needs because it was “targeting” the coal industry. Appellant’s\n\nOpening Br. at 51. Though Heinson counsels a multi-factor analysis, it doesn’t\n\ncompel any consideration of factors that contradict the evidence.\n\n In any case, it defies logic to use an estoppel theory to expand coverage by\n\nconsidering all circumstances except the touchstone element of an estoppel claim: a\n\nrepresentation inducing reliance. We hesitate to create by judicial fiat an obligation\n\nthat an insurer never induced an insured to believe existed. Similarly, that the policy\n\nexplicitly excluded the disputed coverage, and that the insured acquiesced to the\n\nexclusion by purchasing the policy, strongly counsels against expanding coverage\n\nbeyond the agreed terms. Even if these two factors—representation and exclusion—\n\n\n\n\n 35\n\faren’t dispositive, they warrant substantial weight in the analysis. Certainly, the\n\ndistrict court didn’t abuse its discretion in emphasizing these factors.21\n\n Woolman tries to surmount this assessment by contending that public policy\n\nrequires an expansion of coverage to “preserve[] the rights” to which he is entitled.\n\nAppellant’s Reply Br. at 22. Woolman insists that expansion would simply “hold\n\nLiberty Mutual accountable for that which it said it would do,” i.e., procure black-\n\nlung coverage for his benefit. Id. at 23. Liberty Mutual, however, never undertook to\n\ninsure Woolman directly or to procure insurance for his benefit. Accordingly, rather\n\nthan preserve a preexisting right, Woolman is impermissibly attempting to acquire a\n\nnew one. Public policy doesn’t favor rewarding insureds who neglect to request\n\ncoverage, then years later claim that the insurer wrongfully failed to procure such\n\ncoverage when the risk actually materializes.\n\n Woolman posits a second public-policy rationale for expanding coverage: that\n\nhe “already possessed” a right to black-lung coverage because federal regulations\n\nrequire coal companies to acquire insurance with such coverage. Appellant’s Opening\n\nBr. at 55. But the regulations on which Woolman relies define a coal mine operator’s\n\nduty to obtain coverage. See 20 C.F.R. § 726.1 (“[T]he Federal Coal Mine Health and\n\n\n\n 21\n Neither party suggests a standard for our review of decisions whether to\nexpand insurance coverage. We generally review a court’s assessment of disparate,\ncase-specific factors under the deferential abuse-of-discretion standard. See, e.g.,\nMocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015); Surefoot LC v.\nSure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). We need not decide the\nissue, however, because we would affirm the district court’s assessment of the\ncircumstances relevant to expanding coverage under even a de novo standard.\n 36\n\fSafety Act . . . requires each coal mine operator . . . to secure the payment of [black-\n\nlung] benefits . . . .”); 30 U.S.C. § 933(a) (“[E]ach operator of a coal mine . . . shall\n\nsecure the payment of benefits . . . .”); see also 20 C.F.R. § 726.2(a) (“[Part 726]\n\nprovides rules directing and controlling the circumstances under which a coal mine\n\noperator shall fulfill his insurance obligations under the Act.”). The regulations\n\ncontain no similar provisions imposing an independent duty on an insurer to include\n\nblack-lung coverage in every policy issued to a coal company. There are no\n\ncompelling public-policy reasons to ignore the regulations’ plain language and shift\n\nfrom the operator to the insurance company the burden to conform insurance policies\n\nto the Act.\n\n Having considered the totality of the circumstances, we conclude that the\n\ndistrict court didn’t err in declining Woolman’s extraordinary request to expand the\n\ncoverages in the Liberty Mutual policy. Liberty Mutual never represented it would\n\nprocure the coverage that Woolman now seeks, and the policy itself clearly excludes\n\nsuch coverage. No other compelling consideration justifies rewriting the agreement—\n\ntwenty years later—to Woolman’s liking.\n\n CONCLUSION\n\n For the above reasons, we affirm the district court.\n\n\n\n\n 37\n[END_CASE]", "role": "user" } ]
4,581,546	UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant.	United States v. Lopez-Aguilar	2019-01-15	17-2121	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Bacharach, Baldock, Ebel", "parties": "", "opinions": [{"author": "BACHARACH, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 15, 2019\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2121\n\n MARVIN LOPEZ-AGUILAR,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)\n _________________________________\n\nSubmitted on the briefs * :\n\nJames D. Tierney, Acting United States Attorney, and C. Paige Messec,\nAssistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-\nAppellee.\n\nBenjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,\nNew Mexico, for Defendant-Appellant.\n _________________________________\n\nBefore BACHARACH, BALDOCK, and EBEL, Circuit Judges.\n __________________________________\n\n\n\n\n\n Oral argument would not materially aid our consideration of the\nappeal, so we have decided the appeal based on the briefs. See Order\n(Nov. 2, 2018).\n\fBACHARACH, Circuit Judge.\n _________________________________\n\n This appeal grew out of a plea agreement in which the defendant\n\nwaived his right to collaterally challenge his conviction. Despite the\n\nwaiver, the defendant collaterally challenged the conviction under 28\n\nU.S.C. § 2255. The district court dismissed the challenge without ruling on\n\nthe waiver, holding instead that the defendant’s underlying claim failed on\n\nthe merits. On appeal, the government defends this ruling, adding that we\n\nshould also affirm based on the defendant’s waiver of a collateral\n\nchallenge.\n\n The defendant doesn’t question the enforceability or applicability of\n\nthe waiver. Instead, he contends that the government forfeited the waiver\n\nby failing to invoke it in district court. We reject this contention because\n\nthe government never had an opportunity to assert the waiver in district\n\ncourt. As a result, we affirm based on the waiver. 1\n\n1. The defendant waived his right to collaterally challenge the\n conviction.\n\n The defendant pleaded guilty based on an agreement with the\n\ngovernment. The agreement included a waiver of the right to collaterally\n\nchallenge the conviction:\n\n\n\n1\n Given the applicability of the waiver, we need not address the merits\nof the defendant’s claim.\n\n 2\n\f The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.\n § 3742 afford a Defendant the right to appeal a conviction and\n the sentence imposed. Acknowledging that, the Defendant\n knowingly waives the right to appeal the Defendant’s\n conviction(s) and any sentence, including any order of\n restitution, within the statutory maximum authorized by law and\n imposed in conformity with this plea agreement. In addition, the\n Defendant agrees to waive any collateral attack to the\n Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except\n on the issue of counsel’s ineffective assistance in negotiating or\n entering this plea or this waiver.\n\nR., vol. II at 33 (emphasis added).\n\n Despite this waiver, the defendant collaterally challenged the\n\nconviction by filing a motion under § 2255. The district court summarily\n\ndismissed the motion on the merits without directing the government to\n\nrespond. The defendant appeals, and the government argues that we should\n\nenforce the waiver of a collateral challenge.\n\n To enforce a waiver of a collateral challenge, we consider three\n\nelements: “(1) whether the issue appealed or challenged falls within the\n\nscope of the text of the waiver; (2) whether the waiver was knowingly and\n\nvoluntarily entered into; and (3) whether enforcing the waiver would result\n\nin a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975\n\n(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th\n\nCir. 2004) (en banc)). The government asserts that each element is met, and\n\nthe defendant does not argue to the contrary. Given the absence of a\n\nchallenge to the presence of the three elements, we conclude that the\n\ndefendant waived his right to collaterally challenge the conviction.\n\n 3\n\f2. The government timely invoked the waiver.\n\n Though the defendant does not challenge the enforceability or\n\napplicability of the waiver, he argues that\n\n  the government forfeits invocation of the waiver by failing to\n assert it in the first instance and\n\n  the government should have invoked the waiver in district\n court.\n\nThe defendant thus contends that the government forfeited its opportunity\n\nto invoke the waiver. We disagree.\n\n We have recognized that\n\n  waivers benefit the government by “saving the costs” of\n prosecuting further litigation and\n\n  such litigation should be efficiently and summarily dismissed\n for “the government [to] receive the benefit of its bargain.”\n\nUnited States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But\n\nwe have also recognized that the government can forfeit waivers by failing\n\nto enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th\n\nCir. 2005) (declining to enforce an appellate waiver after the government\n\ndeclined the court’s invitation to respond); see also United States v.\n\nParker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s\n\nobligation to invoke waivers). We can assume, for the sake of argument,\n\nthat the government forfeits invocation of the waiver by failing to assert it\n\nin district court when given an opportunity to do so. But the government\n\n\n\n 4\n\fnever had an opportunity to assert the waiver when the case was in district\n\ncourt.\n\n In the § 2255 proceedings, the district court had two options: It could\n\nsummarily dismiss the defendant’s motion or order a response. See Rule\n\n4(b), Rules Governing Section 2255 Proceedings in the U.S. District\n\nCourts. Until the court ordered a response, the government didn’t need to\n\nfile one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the\n\nU.S. District Courts (“The respondent is not required to answer the\n\n[§ 2255] motion unless a judge so orders.”). Thus, if the district court did\n\nnot order the government to respond to the § 2255 motion, the government\n\ncould raise the waiver for the first time in the appeal. See Remington v.\n\nUnited States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the\n\ngovernment did not lose its right to object to Remington’s § 2255 motion\n\nfor the simple reason that the District Court never ordered the government\n\nto answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme\n\nCourt Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a\n\ncomplaint is dismissed sua sponte before the government responds, the\n\ngovernment doesn’t waive the right to later assert affirmative defenses).\n\n Here the district court summarily dismissed the motion rather than\n\norder a response. Given the summary dismissal, the government had no\n\nopportunity to invoke the waiver in district court. So the government can\n\ninvoke the waiver here.\n\n 5\n\f * *\n\n The government timely asserted the waiver, and the defendant does\n\nnot question its enforceability or applicability. We therefore affirm the\n\ndistrict court’s summary dismissal of the defendant’s § 2255 motion.\n\n\n\n\n 6", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358799/", "author_raw": "BACHARACH, Circuit Judge."}]}	BACHARACH	BALDOCK	EBEL	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581546/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 15, 2019\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2121\n\n MARVIN LOPEZ-AGUILAR,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)\n _________________________________\n\nSubmitted on the briefs * :\n\nJames D. Tierney, Acting United States Attorney, and C. Paige Messec,\nAssistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-\nAppellee.\n\nBenjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,\nNew Mexico, for Defendant-Appellant.\n _________________________________\n\nBefore BACHARACH, BALDOCK, and EBEL, Circuit Judges.\n __________________________________\n\n\n\n\n\n Oral argument would not materially aid our consideration of the\nappeal, so we have decided the appeal based on the briefs. See Order\n(Nov. 2, 2018).\n\fBACHARACH, Circuit Judge.\n _________________________________\n\n This appeal grew out of a plea agreement in which the defendant\n\nwaived his right to collaterally challenge his conviction. Despite the\n\nwaiver, the defendant collaterally challenged the conviction under 28\n\nU.S.C. § 2255. The district court dismissed the challenge without ruling on\n\nthe waiver, holding instead that the defendant’s underlying claim failed on\n\nthe merits. On appeal, the government defends this ruling, adding that we\n\nshould also affirm based on the defendant’s waiver of a collateral\n\nchallenge.\n\n The defendant doesn’t question the enforceability or applicability of\n\nthe waiver. Instead, he contends that the government forfeited the waiver\n\nby failing to invoke it in district court. We reject this contention because\n\nthe government never had an opportunity to assert the waiver in district\n\ncourt. As a result, we affirm based on the waiver. 1\n\n1. The defendant waived his right to collaterally challenge the\n conviction.\n\n The defendant pleaded guilty based on an agreement with the\n\ngovernment. The agreement included a waiver of the right to collaterally\n\nchallenge the conviction:\n\n\n\n1\n Given the applicability of the waiver, we need not address the merits\nof the defendant’s claim.\n\n 2\n\f The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.\n § 3742 afford a Defendant the right to appeal a conviction and\n the sentence imposed. Acknowledging that, the Defendant\n knowingly waives the right to appeal the Defendant’s\n conviction(s) and any sentence, including any order of\n restitution, within the statutory maximum authorized by law and\n imposed in conformity with this plea agreement. In addition, the\n Defendant agrees to waive any collateral attack to the\n Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except\n on the issue of counsel’s ineffective assistance in negotiating or\n entering this plea or this waiver.\n\nR., vol. II at 33 (emphasis added).\n\n Despite this waiver, the defendant collaterally challenged the\n\nconviction by filing a motion under § 2255. The district court summarily\n\ndismissed the motion on the merits without directing the government to\n\nrespond. The defendant appeals, and the government argues that we should\n\nenforce the waiver of a collateral challenge.\n\n To enforce a waiver of a collateral challenge, we consider three\n\nelements: “(1) whether the issue appealed or challenged falls within the\n\nscope of the text of the waiver; (2) whether the waiver was knowingly and\n\nvoluntarily entered into; and (3) whether enforcing the waiver would result\n\nin a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975\n\n(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th\n\nCir. 2004) (en banc)). The government asserts that each element is met, and\n\nthe defendant does not argue to the contrary. Given the absence of a\n\nchallenge to the presence of the three elements, we conclude that the\n\ndefendant waived his right to collaterally challenge the conviction.\n\n 3\n\f2. The government timely invoked the waiver.\n\n Though the defendant does not challenge the enforceability or\n\napplicability of the waiver, he argues that\n\n  the government forfeits invocation of the waiver by failing to\n assert it in the first instance and\n\n  the government should have invoked the waiver in district\n court.\n\nThe defendant thus contends that the government forfeited its opportunity\n\nto invoke the waiver. We disagree.\n\n We have recognized that\n\n  waivers benefit the government by “saving the costs” of\n prosecuting further litigation and\n\n  such litigation should be efficiently and summarily dismissed\n for “the government [to] receive the benefit of its bargain.”\n\nUnited States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But\n\nwe have also recognized that the government can forfeit waivers by failing\n\nto enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th\n\nCir. 2005) (declining to enforce an appellate waiver after the government\n\ndeclined the court’s invitation to respond); see also United States v.\n\nParker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s\n\nobligation to invoke waivers). We can assume, for the sake of argument,\n\nthat the government forfeits invocation of the waiver by failing to assert it\n\nin district court when given an opportunity to do so. But the government\n\n\n\n 4\n\fnever had an opportunity to assert the waiver when the case was in district\n\ncourt.\n\n In the § 2255 proceedings, the district court had two options: It could\n\nsummarily dismiss the defendant’s motion or order a response. See Rule\n\n4(b), Rules Governing Section 2255 Proceedings in the U.S. District\n\nCourts. Until the court ordered a response, the government didn’t need to\n\nfile one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the\n\nU.S. District Courts (“The respondent is not required to answer the\n\n[§ 2255] motion unless a judge so orders.”). Thus, if the district court did\n\nnot order the government to respond to the § 2255 motion, the government\n\ncould raise the waiver for the first time in the appeal. See Remington v.\n\nUnited States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the\n\ngovernment did not lose its right to object to Remington’s § 2255 motion\n\nfor the simple reason that the District Court never ordered the government\n\nto answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme\n\nCourt Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a\n\ncomplaint is dismissed sua sponte before the government responds, the\n\ngovernment doesn’t waive the right to later assert affirmative defenses).\n\n Here the district court summarily dismissed the motion rather than\n\norder a response. Given the summary dismissal, the government had no\n\nopportunity to invoke the waiver in district court. So the government can\n\ninvoke the waiver here.\n\n 5\n\f * *\n\n The government timely asserted the waiver, and the defendant does\n\nnot question its enforceability or applicability. We therefore affirm the\n\ndistrict court’s summary dismissal of the defendant’s § 2255 motion.\n\n\n\n\n 6\n[END_CASE]", "role": "user" } ]
4,582,702		Hamilton v. Northfield Insurance Company	2019-01-17	17-7049	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FILED\n PUBLISH United States Court of Appeals\n Tenth Circuit\n UNITED STATES COURT OF APPEALS\n January 17, 2019\n FOR THE TENTH CIRCUIT\n Elisabeth A. Shumaker\n _________________________________ Clerk of Court\n BILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-\n Appellee,\n No. 17-7049\n v. (D.C. No. 6:16-CV-00519-RAW)\n (E.D. Okla.)\n NORTHFIELD INSURANCE\n COMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n ______________________\n\n OKLAHOMA ASSOCIATION FOR\n JUSTICE,\n\n Amicus Curiae.\n\n _________________________________\n\n ORDER\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n This matter is before us on Appellant’s Petition for Rehearing En Banc\n\n(“Petition”). Upon careful consideration of the Petition and the amicus brief filed by the\n\nOklahoma Association for Justice, we sua sponte grant panel rehearing and vacate the\n\nopinion issued December 18, 2018. Accordingly, the Petition is denied as moot, and this\n\fmatter is REOPENED and ABATED pending further order of the court.\n\n\n Entered for the Court,\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359955/", "author_raw": ""}]}	TYMKOVICH	MCKAY	CARSON	1		{"TYMKOVICH": ", Chief", "McKAY": ", Circuit", "CARSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582702/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n PUBLISH United States Court of Appeals\n Tenth Circuit\n UNITED STATES COURT OF APPEALS\n January 17, 2019\n FOR THE TENTH CIRCUIT\n Elisabeth A. Shumaker\n _________________________________ Clerk of Court\n BILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-\n Appellee,\n No. 17-7049\n v. (D.C. No. 6:16-CV-00519-RAW)\n (E.D. Okla.)\n NORTHFIELD INSURANCE\n COMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n ______________________\n\n OKLAHOMA ASSOCIATION FOR\n JUSTICE,\n\n Amicus Curiae.\n\n _________________________________\n\n ORDER\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n This matter is before us on Appellant’s Petition for Rehearing En Banc\n\n(“Petition”). Upon careful consideration of the Petition and the amicus brief filed by the\n\nOklahoma Association for Justice, we sua sponte grant panel rehearing and vacate the\n\nopinion issued December 18, 2018. Accordingly, the Petition is denied as moot, and this\n\fmatter is REOPENED and ABATED pending further order of the court.\n\n\n Entered for the Court,\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2\n[END_CASE]", "role": "user" } ]
4,582,750		Hamilton v. Northfield Insurance Company	2019-01-17	17-7049	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 17, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nBILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-Appellee,\n\nv. No. 17-7049\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n\n------------------------------\n\nOKLAHOMA ASSOCIATION FOR\nJUSTICE,\n\n Amicus Curiae.\n\n–––––––––––––––––––––––––––––––––––\n\nBILLY HAMILTON,\n\n Plaintiff - Appellee,\n\nv. No. 17-7055\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellant.\n _________________________________\n\n ORDER\n _________________________________\n\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n Notwithstanding our January 17, 2019 order sua sponte granting panel rehearing\n\nand vacating our December 18, 2018 opinion in 17-7049, we clarify that the opinion\n\nremains in effect as to the issues raised and resolved in 17-7055. The Clerk shall issue the\n\nmandate in 17-7055 forthwith. As stated in in our January 17, 2019 order, 17-7049 is\n\nreopened and remains abated.\n\n\n Entered for the Court,\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360003/", "author_raw": ""}]}	TYMKOVICH	MCKAY	CARSON	1		{"TYMKOVICH": ", Chief", "McKAY": ", Circuit", "CARSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582750/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 17, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nBILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-Appellee,\n\nv. No. 17-7049\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n\n------------------------------\n\nOKLAHOMA ASSOCIATION FOR\nJUSTICE,\n\n Amicus Curiae.\n\n–––––––––––––––––––––––––––––––––––\n\nBILLY HAMILTON,\n\n Plaintiff - Appellee,\n\nv. No. 17-7055\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellant.\n _________________________________\n\n ORDER\n _________________________________\n\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n Notwithstanding our January 17, 2019 order sua sponte granting panel rehearing\n\nand vacating our December 18, 2018 opinion in 17-7049, we clarify that the opinion\n\nremains in effect as to the issues raised and resolved in 17-7055. The Clerk shall issue the\n\nmandate in 17-7055 forthwith. As stated in in our January 17, 2019 order, 17-7049 is\n\nreopened and remains abated.\n\n\n Entered for the Court,\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2\n[END_CASE]", "role": "user" } ]
8,443,850	Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae.	Hamilton v. Northfield Ins. Co.	2019-01-17	No. 17-7049	U.S. Court of Appeals for the Tenth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415277/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443850/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
8,443,851	Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company	Hamilton v. Northfield Ins. Co.	2019-01-17	No. 17-7049; No. 17-7055	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Carson, McKay, Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415278/", "author_raw": ""}]}	CARSON	MCKAY	TYMKOVICH	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443851/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,582,978	MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees.	Maralex Res., Inc. v. Barnhardt	2019-01-18	17-1421	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Lucero, Matheson", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 18, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n MARALEX RESOURCES, INC., a\n Colorado corporation; ALEXIS M.\n O'HARE; MARY C. O'HARE,\n\n Plaintiffs - Appellants,\n\n v. No. 17-1421\n\n DAVID BARNHARDT, in his official\n capacity as Acting Secretary of the United\n States Department of the Interior; THE\n UNITED STATES DEPARTMENT OF\n INTERIOR; THE UNITED STATES OF\n AMERICA,\n\n Defendants - Appellees.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01893-CMA)\n _________________________________\n\nWilliam E. Zimsky, Abadie & Schill, PC, Durango, Colorado, appearing for the\nAppellants.\n\nTamara N. Rountree, Attorney, Environmental and Natural Resources Division, United\nStates Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant\nAttorney General, and Eric Grant, Deputy Assistant Attorney General, United States\nDepartment of Justice, Washington, DC; William Lazarus and John L. Smeltzer,\nAttorneys, Environmental and Natural Resources Division, United States Department of\nJustice, Washington, DC; and Philip C. Lowe, Rocky Mountain Regional Solicitor’s\n\n \n In accordance with Fed. R. App. P. 43(c)(2), David Barnhardt is substituted\nfor Ryan Zinke, as the respondent in this action.\n\fOffice, Department of the Interior, Lakewood, Colorado, with her on the brief), appearing\nfor the Appellee.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C.\n\nO’Hare (the O’Hares) filed this action against the Secretary of the Department of the\n\nInterior (Secretary), the Department of the Interior, and the United States seeking\n\nreview of a decision of the Interior Board of Land Appeals (IBLA) upholding four\n\nNotices of Incidents of Noncompliance that were issued by the Bureau of Land\n\nManagement’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a\n\nBLM representative to access certain oil and gas lease sites operated by Maralex on\n\nland owned by the O’Hares. The district court affirmed the IBLA’s decision.\n\nPlaintiffs now appeal.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the\n\nBLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to\n\nrequire plaintiffs to provide BLM with a key to a lease site on privately-owned land\n\nor to allow the BLM to install its own locks on the gates to such lease site.\n\nConsequently, we reverse and remand to the district court with instructions to enter\n\njudgment in favor of plaintiffs on this “key or lock” issue.\n\n\n\n\n 2\n\f I\n\n The Parcel and its component Tracts\n\n At issue in this case is a 320-acre parcel of land (the Parcel) that is located in\n\nthe S1/2 of Section 35, Township 34 South, Range 7 West in La Plata County in\n\nsouthwestern Colorado. The Parcel, which is comprised of 240 acres of private\n\nsurface/mineral estate and 80 acres of Indian surface/mineral estate, lies over the\n\nIgnacio Blanco gas field and the Fruitland coal formation.\n\n The O’Hares own the surface and mineral estate in a 120-acre tract of land in\n\nthe SW1/4SE1/4 and E1/2SW1/4 of the Parcel (the O’Hare Tract). The Southern Ute\n\nIndian Tribe (Tribe) holds the surface and mineral estate in the W1/2SW1/4 of the\n\nParcel (the Tribe Tract). The remainder of the Parcel (the Remainder Tract)—the\n\nN1/2SE1/4 and SE1/4SE1/4—is privately-owned by the O’Hare family, J. Elmer and\n\nWanda Lee Kenner, and Irma Rowse.\n\n The leases of the Tracts\n\n On June 6, 1974, the Tribe, acting pursuant to the Indian Mineral Leasing Act\n\nof 1938, 25 U.S.C. §§ 396a-396g (2012), issued to Sun Oil Company an Indian oil\n\nand gas lease, Mining Lease Contract No. MOO-C-1420-1531, for its mineral estate\n\nin the Tribe Tract. Amoco Production Company (Amoco) later took over as the\n\nlessee.\n\n\n\n\n 3\n\f On April 28, 1995, the O’Hares issued to Maralex1 a private oil and gas lease\n\nfor the O’Hare Tract. SG Interests III, Ltd. (SG III) later joined Maralex as co-\n\nlessee.\n\n The O’Hares, Kenners, and Rowse issued three private oil and gas leases\n\ncovering the Remainder Tract. SG III and Maralex became the lessees of those\n\nleases.\n\n The Communitization Agreement\n\n In 1996, all of the parties (SG III, Maralex, the Tribe, the O’Hares, Kenners,\n\nand Rowe) “communitized” their coal and gas interests in the Parcel under the terms\n\nof a written agreement. More specifically, in a written Communitization Agreement\n\n(CA) dated May 1, 1996, the parties agreed to develop and operate the Parcel “as an\n\nentirety, with the understanding and agreement . . . that all Communitized Substances\n\nproduced therefrom [would] be allocated among the leaseholds comprising said area\n\nin the proportion that the acreage interest of each leasehold bears to the entire\n\nacreage interest committed to [the CA].” Aplt. App. at 3. The CA further stated, in\n\npertinent part, that “[t]he royalties payable on Communitized Substances allocated to\n\nthe individual leases comprising the [Tract] . . . shall be determined and paid on the\n\nbasis prescribed in each of the individual leases.” Id.\n\n Two other provisions of the CA are relevant to this case. First, the CA stated:\n\n“This agreement shall be subject to all applicable Federal and State laws or executive\n\n\n 1\n According to the record on appeal, Mary O’Hare is the president of Maralex.\nAplt. App. at 8.\n 4\n\forders, rules and regulations . . . .” Id. at 4. In addition, the CA stated: “It is agreed\n\nbetween the Parties Hereto that the Secretary of the Interior, or his duly Authorized\n\nOfficer, shall have the right of supervision over all operations within the\n\nCommunitized Area to the extent same includes the oil and gas lease(s) under which\n\nthe . . . Tribe is lessor and insofar as governed by applicable oil and gas regulations\n\nof the Department of Interior.” Id. at 5.\n\n The CA was approved by the Tribe and the Bureau of Indian Affairs (BIA)\n\neffective May 1, 1996.\n\n The wells operating under the CA\n\n There are four wells associated with the CA and arising from the underlying\n\nleases, all of which are operated by Maralex. The four wells are physically situated\n\nin two areas on the O’Hares’ private surface estate in the O’Hare Tract. Each such\n\narea is enclosed by a fence and a locked gate. All four of the wells are producing\n\n“both fee and Tribal minerals” from the Fruitland coal formation. Id. at 32.\n\nAlthough the oil and gas at issue is produced from private mineral interests and from\n\nwells situated on private surface estates, such production is, under the terms of the\n\nCA, allocated to all of the oil and gas interests, including that of the Tribe, as the\n\nowner of record title to the mineral estate in the Tribe’s Section of the Parcel.\n\n BLM’s attempt to inspect the wells\n\n On February 11, 2013, Gabriel Trujillo, a Petroleum Engineering Technician\n\nemployed by the BLM, sent an email to Maralex stating that he planned to inspect the\n\nfour wells. On February 12, 2013, Christi Reid, a Maralex employee, responded by\n\n 5\n\femail, noted that the wells were situated “on Mickey O’Hare’s property,” and stated\n\nthat she envisioned “problems with him granting access” to Trujillo. Id. at 18. One\n\nday later, on February 13, 2013, Reid emailed Trujillo again, stating: “I talked to\n\nMickey O’Hare and let him know that you want to inspect the . . . wells. He wants to\n\ntalk to you directly . . . .” Id.\n\n On February 22, 2013, Trujillo drove to the Parcel in an attempt to examine\n\nthe wells. Upon arrival, Trujillo found that there was a locked gate that prevented\n\nhim from examining the wells. That same day, Trujillo spoke by phone with Mickey\n\nO’Hare. O’Hare informed Trujillo that he had no right to inspect the wells because\n\nO’Hare owned both the surface and mineral rights.\n\n BLM’s issuance of INCs to Maralex\n\n On February 26, 2013, Trujillo completed four official BLM forms entitled\n\n“Notice of Incidents of Noncompliance” (INC). Id. at 23. The INCs noted that\n\nTrujillo had attempted unsuccessfully to access the wells on February 22, 2013. The\n\nINCs, which were sent to Maralex, alleged that Maralex was in violation of 43 C.F.R.\n\n§ 3162.1(b), and they gave Maralex until March 25, 2013, to provide Trujillo and the\n\nBLM with access to the wells. In the “Remarks” section of the INCs, Trujillo stated:\n\n“For corrective action, I will need a key to access the location or be able to put a\n\nBLM lock in with it.” Id. at 24.\n\n Maralex’s administrative appeal of the INCs\n\n On March 27, 2013, a law firm representing Maralex and the O’Hares sent a\n\nletter to BLM appealing the four INCs. The letter asserted that the BLM had\n\n 6\n\fmisinterpreted its authority to inspect oil and gas wells located on private land. More\n\nspecifically, the letter asserted that the BLM “ha[d] limited authority to inspect\n\nfacilities on Fee Tracts” and that the applicable regulations “only allow[ed] annual\n\ninspections” of such wells. Id. at 33. The letter also asserted that “there [wa]s no\n\nstatutory authority nor . . . any legitimate justification for giving the BLM unbridled\n\ndiscretion to search the facilities at issue in order to ensure that there [wa]s adequate\n\nsite security measurement and that Maralex [wa]s properly measuring the production\n\nand operation of the wells.” Id. “Thus,” the letter asserted, “BLM’s request for a\n\nkey to any gates to conduct inspections [wa]s violative of Maralex’s constitutionally\n\nguaranteed protection against unreasonable searches under the Fourth Amendment.”\n\nId. Lastly, the letter asserted that “there [wa]s no legal authority for the BLM’s\n\ndemand for unfettered access to the O’Hare’s surface.” Id. And the letter argued that\n\n“[i]f the BLM was entitled to unfettered right to access O’Hare’s property under\n\nSection 3162.1(b), it would constitute a regulatory taking of O’Hare’s property in\n\nviolation of O’Hare’s property rights as guarantee [sic] by the takings clause of the\n\nFifth Amendment.” Id. at 34.\n\n On April 10, 2013, the BLM notified Maralex’s counsel that it was treating the\n\nMarch 27, 2013 letter “as a request for State Director’s review (SDR) . . . under 43\n\nCFR 3165.3.” Id. at 88.\n\n On July 9, 2013, the BLM’s Deputy State Director, Energy, Lands, and\n\nMinerals, Colorado State Office, sent a letter to Maralex’s counsel responding to\n\neach point raised by Maralex’s counsel. The letter disagreed that the applicable\n\n 7\n\fregulations allowed only for “annual inspections for fee tracts in a CA.” Id. at 90.\n\nRather, the letter asserted, the “inspected annually” language in the regulation merely\n\nestablished a minimum standard as to what was to be accomplished. Id. As for its\n\nauthority to conduct inspections of the wells, the BLM noted that\n\n Section 101(b) of the Federal Oil and Gas Royalty Management Act of\n 1982 (FOGRMA) provides that, “Authorized and properly identified\n representatives of the Secretary may without advance notice, enter\n upon, travel across and inspect lease sites on Federal or Indian lands\n and may obtain from the operator immediate access to secured facilities\n on such lease sites, for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n requirements of the minearal [sic] leasing laws and this Act.”\n\nId. at 90-91 (italics in original). The BLM in turn stated that “[s]ince the subject\n\nwells’ production is subject to a federal CA and the government receives a portion of\n\nthe production’s royalty, the BLM is responsible for assuring production\n\naccountability” and that “[t]his includes inspections for site security, proper handling,\n\nmeasurement and reporting of production and protection against product theft.” Id. at\n\n91. “Therefore,” the letter stated, “BLM must be allowed to perform the production\n\nrelated inspection which necessitates physical access to the subject wells and their\n\nassociated facilities without advance notice.” Id. In a section entitled “Decision,”\n\nthe letter stated:\n\n Upon review, the four INCs covering denied access to the subject\n wells were properly issued and are upheld. The stay of enforcement\n action granted in our April 10, 2013, letter to Maralex is hereby lifted.\n\n Maralex must provide the BLM Tres Rios Field Office access\n without advance notice as required by the INCs and the regulations. If\n Maralex chooses not to provide access as required, Maralex will be\n subject to assessments pursuant to 43 CFR 3163.1. In addition further\n\n 8\n\f non-compliance shall result in proposed civil penalties pursuant to 43\n CFR 3163.2(e)(1).\n\nId. at 93.\n\n On August 20, 2013, Maralex’s counsel sent the BLM a notice of appeal of the\n\nJuly 9, 2013 decision. Id. at 97. Maralex’s counsel followed that up by filing with\n\nthe IBLA a Statement of Reasons for Appeal. Id. at 98. The Statement of Reasons\n\nargued that the regulation relied on by the BLM, 43 C.F.R. § 3162.1(b), applies only\n\n“to Federal and Indian lease sites,” and that “there is no statutory authority to support\n\nthe BLM’s suggestion that it has the right to conduct warrantless searches of\n\nMaralex’s facilities.” Id. at 113. “Thus,” the Statement of Reasons asserted, “BLM’s\n\nrequest violates Maralex’s right not to be subject to unreasonable searches as\n\nguaranteed by the Fourth Amendment.” Id. Lastly, the Statement of Reasons\n\nasserted that “if the BLM does have the statutory and regulatory authority to access\n\nthe O’Hare’s Fee Tract at any time, such authority would constitute a regulatory\n\ntaking of the O’Hare’s property in violation of their due process rights under the\n\nFifth Amendment.” Id.\n\n On July 10, 2015, the IBLA issued a written decision affirming the BLM’s\n\nJuly 9, 2013 decision. In doing so, the IBLA did not address whether plaintiffs were\n\nrequired to provide the BLM with a key or allow the BLM to install its own locks on\n\nMaralex’s gates, nor did the IBLA address plaintiffs’ constitutional arguments.\n\n The district court proceedings\n\n\n\n\n 9\n\f On September 1, 2015, Maralex and the O’Hares initiated these proceedings\n\nby filing a complaint in federal district court against the Secretary, the Department of\n\nthe Interior, and the United States. The complaint sought reversal of the IBLA’s\n\ndecision, as well as declaratory relief.\n\n On October 19, 2017, the district court issued an order affirming the IBLA’s\n\ndetermination. Plaintiffs now appeal.\n\n II\n\n Plaintiffs raise two issues on appeal: (1) whether they waived their argument\n\nthat the BLM lacked authority to require them to provide the BLM with keys to the\n\nlocked gates on the O’Hares’ private property or, alternatively, to allow the BLM to\n\nplace its own locks on those gates; and (2) whether the BLM has statutory or\n\nregulatory authority to require plaintiffs to provide the BLM with keys to locked\n\ngates on privately-owned lands or, alternatively, to allow the BLM to place its own\n\nlocks on such gates.2 As discussed in more detail below, whether plaintiffs waived\n\ntheir argument is a close question, but assuming they did, we nevertheless exercise\n\ndiscretion to address the underlying issue. We in turn conclude that BLM lacked\n\nauthority to impose the “key or lock” requirement.\n\n Did plaintiffs waive their argument that the BLM lacked authority\n to require them to provide keys to their locked gates or to allow the\n BLM to place its own locks on those gates?\n\n\n 2\n Until recently, plaintiffs asserted three additional issues on appeal, including\nFourth and Fifth Amendment challenges to the inspection protocol advocated by the\nBLM. At oral argument, however, plaintiffs abandoned those issues. Consequently,\nwe do not address them.\n 10\n\f As noted, plaintiffs first argue that the district court erred in concluding that\n\nthey waived their argument that the BLM lacked authority to require them to provide\n\nthe BLM with keys to locked gates or to allow the BLM to place its own locks on\n\nthose gates. The district court concluded that plaintiffs “did not present to the IBLA\n\nthis particular argument that the BLM’s corrective action exceeded its authority.”\n\nAplt. App. at 207-08. The district court in turn concluded “that Plaintiffs waived this\n\nargument for purposes of this appeal and [it] decline[d] to consider it.” Id. at 208.\n\n To resolve this issue, we begin by turning to the record. Plaintiffs, in their\n\ninitial appeal of the INCs, “claim[ed] that BLM ha[d] no statutory authority or\n\nlegitimate justification giving the BLM unbridled discretion to search the subject\n\nwell facilities in order to ensure site security and proper measurement” and that,\n\nconsequently, “the BLM’s request for a key to any gates to conduct inspections [wa]s\n\nin violation of Maralex’s constitutionally guaranteed protection against unreasonable\n\nsearches under the Fourth Amendment.” Aplt. App. at 90.\n\n In their appeal to the IBLA from the State Director’s decision denying their\n\ninitial appeal, plaintiffs argued, in pertinent part, that “there [wa]s no statutory\n\nauthority nor . . . any legitimate justification for giving the BLM unbridled discretion\n\nto search the facilities at issue at any time and without notice,” and that,\n\nconsequently, “BLM’s request for a key to any gates to conduct unannounced\n\ninspections [wa]s violative of Maralex’s constitutionally guaranteed protection\n\nagainst unreasonable searches under the Fourth Amendment.” Id. at 102. Plaintiffs\n\nfurther argued that “there [wa]s no statutory support for warrantless, unannounced\n\n 11\n\finspections of [the] Fee Tracts,” and thus the BLM could not “rely on” its own\n\nregulations “for conducting unannounced, warrantless searches of the sites at issue.”\n\nId. at 107–08. Plaintiffs also argued that “Paragraph 13” of the CA “does not provide\n\nthe BLM with the unlimited right to conduct inspections without advance notice nor\n\ndoes it form the basis for giving the BLM a key to have unlimited physical access to\n\nthe wells and related facilities on Fee Tracts, which is applicable only to Federal and\n\nIndian lease sites.” Id. at 112. Lastly, the plaintiffs challenged the State Director’s\n\nrejection of “the O’Hare’s [sic] assertion that forcing them to supply the BLM with a\n\nkey to a lock to allow the BLM to have physical access to their surface property for\n\nunannounced inspections of Maralex’s wells and related facilities located on the\n\nO’Hare’s [sic] surface constitute[d] an unauthorized takings under the Fifth\n\nAmendment.” Id. at 112-13.\n\n In our view, it is a close question whether plaintiffs presented their argument\n\nto the IBLA that BLM exceeded its statutory and regulatory authority by requiring a\n\nkey or lock in the INCs. On the one hand, plaintiffs clearly argued, as part of their\n\nFourth Amendment challenge, that the BLM lacked both statutory and regulatory\n\nauthority to impose the key/lock requirement. On the other hand, plaintiffs expressly\n\nasserted before the IBLA that it lacked authority to address their Fourth Amendment\n\nchallenge and they asked the IBLA not to consider it.\n\n Even assuming, however, that plaintiffs failed to properly present to the IBLA\n\ntheir argument that the key/lock requirement exceeded the BLM’s statutory and\n\nregulatory authority, we nevertheless choose to exercise our discretion to address that\n\n 12\n\fissue.3 See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.\n\n439, 447–48 (1993) (discussing authority of appellate court to address potentially\n\nwaived issue). We have held, albeit in a slightly different context, that we may\n\ndepart from general waiver principles “particularly when we are presented with a\n\nstrictly legal question, the proper resolution of which is beyond doubt or when\n\nmanifest injustice would otherwise result.” Daigle v. Shell Oil Co., 972 F.2d 1527,\n\n1539 (10th Cir. 1992). Further, in considering whether to address an alternative\n\ntheory, we take into account (1) “whether the ground was fully briefed and argued\n\nhere and below,” (2) “whether the parties have had a fair opportunity to develop the\n\nfactual record,” and (3) “whether, in light of factual findings to which we defer or\n\nuncontested facts, our decision would involve only questions of law.” Elkins v.\n\nComfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations omitted).\n\n In this case, the issue of the BLM’s statutory and regulatory authority has been\n\nfully briefed and argued in this court by both sides. Further, the factual record is\n\nessentially undisputed and, thus, we are presented with only a question of law.\n\nLastly, and perhaps most importantly, the BLM has indicated its intention to enforce\n\nthe key/lock requirement at the conclusion of this litigation. On October 22, 2018,\n\n\n 3\n We are not aware of, nor has the BLM cited to, any authority holding that\npreservation of the issue before the IBLA is a jurisdictional prerequisite. See Air\nCourier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517,\n523 n.3 (1991) (“The judicial review provisions of the APA are not jurisdictional . . .\n.”); Chissoe v. Zinke, 725 F. App’x 614, 621 (10th Cir. 2018) (stating that “judicial\nexhaustion requirements under the APA are prudential only.”); Vietnam Veterans of\nAm. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that\nthe review provisions of the APA are not jurisdictional is now firmly established.”).\n 13\n\fwe issued an order to show cause directing the parties to address, in pertinent part,\n\nthe question of whether the BLM was continuing to require Maralex to provide the\n\nBLM with a key to the lock on the O’Hares’ gate or to allow the BLM to place its\n\nown lock on the gate. On December 18, 2018, defendants responded that, indeed,\n\n“BLM continues to require Maralex to either provide the agency with a key to the\n\nlock on the O’Hares’ gate or allow BLM to place its own lock on the gate.” Aple.\n\nResp. to Order to Show Cause at 2. Defendants asserted that, “[i]n the absence of\n\ncompliance with the [key/lock requirement] in the INCs, Mr. O’Hare may refuse\n\nBLM access to the wells at any time, as he did in February 2013 (which led to BLM’s\n\nissuance of the INCs).” Id. at 3. Thus, despite the fact that the INCs were issued\n\nnearly six years ago, it is clear that the BLM intends to enforce the key/lock\n\nrequirement once this litigation ends. For this reason, we conclude that the interests\n\nof justice are best served if we address the merits of plaintiffs’ argument that BLM\n\nlacks statutory and regulatory authority to impose the key/lock requirement.\n\n Does the BLM have authority to require a landowner or operator\n to provide the BLM with keys to the landowner’s locked gates or allow\n the BLM to place its own locks on the landowner’s gates?\n\n We now turn to the merits of plaintiffs’ argument. Plaintiffs assert that, even\n\nassuming some statutory or regulatory authority exists for the BLM to conduct\n\ninspections on fee lands without advanced notice, “there are limits to such\n\ninspections.” Aplt. Br. at 40. Plaintiffs point to the language of 30 U.S.C. § 1718 to\n\nsupport their position. Section 1718, plaintiffs note, “limits the right to enter upon,\n\ntravel across and inspect lease sites to not only ‘authorized’ representatives of the\n\n 14\n\fSecretary, but to representatives that are ‘properly identified.’” Id. And, plaintiffs\n\nargue, “[b]ecause the landowner and the operator have the right to ensure that the\n\nrepresentative is properly identified, the BLM cannot force either the landowner or\n\nthe operator to provide a key to the landowner’s locked gates or be forced to allow\n\nthe BLM to place a lock on the landowner’s locked gates since by doing so neither\n\nthe landowner nor operator will be able to check the identification of the person(s)\n\nentering upon, travelling across, and/or inspecting the facilities.” Id. at 40-41.\n\nLastly, plaintiffs argue that “[a]ll that is required of the operator under Section\n\n1718(b) is to provide ‘immediate access to secured facilities’ to a properly identified\n\nrepresentative of the Secretary.” Id. at 41. This means, plaintiffs argue, that “if the\n\noperator is on site at the time of the inspection, it is required to open any gates or\n\notherwise secured facilities” and “[i]f the operator is not on the lease site when the\n\nauthorized, properly identified representative arrives at the lease site, then the\n\noperator is required to go to the lease site and provide immediate access.” Id.\n\n Defendants argue, in response, that “the INCs’ corrective action requiring\n\nPlaintiffs to provide BLM with key or lock access is permissible under the statute and\n\nthe regulations.” Aple. Br. at 39. In particular, defendants assert that “FOGRMA\n\nand its implementing regulations provide that any person who fails to allow\n\nauthorized inspections is liable for penalties, which may not be applied if the liable\n\nperson takes the prescribed corrective action within the required timeframe.” Id.\n\n a) Standard of review\n\n\n\n 15\n\f Although this is an appeal from the district court’s decision, we accord no\n\nparticular deference to that decision. Instead, we conduct our own independent\n\nreview of the agency’s decision. Exxon Mobil Oil Corp. v. Norton, 346 F.3d 1244,\n\n1248 (10th Cir. 2003). Under the Administrative Procedures Act, we will “set aside\n\nagency’s action if it is arbitrary, capricious, an abuse of discretion, or otherwise not\n\nin accordance with law.” Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th\n\nCir. 2006) (internal quotations omitted); see 5 U.S.C. § 706(2)(A).\n\n When reviewing an agency’s interpretation of a statute it administers, we first\n\ndetermine whether Congress has directly spoken to the precise issue. See Chevron,\n\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Cliffs Synfuel\n\nCorp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002). “If the intent of Congress is\n\nclear, that is the end of the matter; for the court . . . must give effect to the\n\nunambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If,\n\nhowever, the statute is silent or ambiguous on the issue in question, we do not impose\n\nour own construction on the statute, but rather ascertain whether the agency’s\n\ninterpretation is a permissible construction of the statute. Id. at 843. If it is, we defer\n\nto that interpretation. Id. at 844. Our review of federal regulations is similar. “In the\n\nusual course, when an agency is authorized by Congress to issue regulations and\n\npromulgates a regulation interpreting a statute it enforces, the interpretation receives\n\ndeference if the statute is ambiguous and if the agency’s interpretation is reasonable.”\n\nEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016). “This principle is\n\nimplemented by the two-step analysis set forth in Chevron.” Id. “At the first step, a\n\n 16\n\fcourt must determine whether Congress has ‘directly spoken to the precise question\n\nat issue.” Encino, 136 S. Ct. at 2124 (quoting Chevron, 467 U.S. at 842). “If the\n\nintent of Congress is clear, that is the end of the matter; for the court, as well as the\n\nagency, must give effect to the unambiguously expressed intent of Congress.”4\n\nChevron, 467 U.S. at 842-43. “If not, then at the second step the court must defer to\n\nthe agency’s interpretation if it is ‘reasonable.’” Encino, 136 S. Ct. at 2125 (quoting\n\nChevron, 467 U.S. at 844). “It is well established that an agency’s interpretation\n\nneed not be the only possible reading of a regulation—or even the best one—to\n\nprevail.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013). “When an\n\nagency interprets its own regulation, the Court, as a general rule, defers to it unless\n\nthat interpretation is plainly erroneous or inconsistent with the regulation.” Id.\n\n(quotation marks omitted).\n\n b) Analysis\n\n We begin our analysis by briefly examining the overall statutory and\n\nregulatory scheme for inspections of oil and gas lease sites that implicate Indian\n\n\n\n\n 4\n At the first step of the Chevron analysis, “we must giv[e] all undefined terms\ntheir ordinary meaning.’” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity\nLoan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014) (quoting Fed. Hous. Fin. Agency v.\nUBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013)). “We may consult a\ndictionary to determine the plain meaning of a term” and may “also take into account\nthe broader context of the statute as a whole when ascertaining the meaning of a\nparticular provision.” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th\nCir. 2009) (quotation marks and citation omitted).\n 17\n\fmineral interests. In § 1702 of FOGRMA, Congress set forth the following\n\ndefinitions that are relevant to understanding the substantive provisions of the Act:\n\n (1) “Federal land” means all land and interests in land owned by the\n United States which are subject to the mineral leasing laws, including\n mineral resources or mineral estates reserved to the United States in the\n conveyance of a surface or nonmineral estate;\n ···\n (3) “Indian lands” means any lands or interest in lands of an Indian tribe\n or an Indian allottee held in trust by the United States or which is\n subject to Federal restriction against alienation or which is administered\n by the United States pursuant to section 14(g) of Public Law 92-203 [43\n USC § 1613(g)], as amended, including mineral resources and mineral\n estates reserved to an Indian tribe or an Indian allottee in the\n conveyance of a surface or nonmineral estate, except that such term\n does not include any lands subject to the provisions of section 3 of the\n Act of June 28, 1906 (34 Stat. 539) [unclassified];\n ···\n (5) “lease” means any contract, profit-share arrangement, joint venture,\n or other agreement issued or approved by the United States under a\n mineral leasing law that authorizes exploration for, extraction of, or\n removal of oil or gas;\n (6) “lease site” means any lands or submerged lands, including the\n surface of a severed mineral estate, on which exploration for, or\n extraction or removal of, oil or gas is authorized pursuant to a lease;\n ···\n\n30 U.S.C. § 1702(1), (3), (5), (6).\n\n In our view, the plain language of the statutory definition of “lease” includes\n\ncommunitization agreements approved by the United States, such as the one at issue\n\nin this case. More specifically, a communitization agreement is a “contract” or\n\n“other agreement” that, depending upon the circumstances, has been “approved by\n\nthe United States under a mineral leasing law,” i.e., federal law governing mineral\n\nrights on Indian and trust land, “that authorizes exploration for, extraction of, or\n\n\n\n 18\n\fremoval of oil or gas.”5 Thus, the statutory definition of “lease site” necessarily\n\nincludes any lands, including privately-owned lands, on which exploration for and\n\nextraction of oil and gas is occurring pursuant to a communitization agreement.\n\n Section 1718 of FOGRMA, entitled “Inspection,” provides in pertinent part as\n\nfollows:\n\n (b) Inspection of lease sites for compliance with mineral leasing laws\n and 30 USCS §§ 1701 et seq. Authorized and properly identified\n representatives of the Secretary may without advance notice, enter upon,\n travel across and inspect lease sites on Federal or Indian lands and may\n obtain from the operator immediate access to secured facilities on such\n lease sites, for the purpose of making any inspection or investigation for\n determining whether there is compliance with the requirements of the\n mineral leasing laws and this Act. The Secretary shall develop\n guidelines setting forth the coverage and the frequency of such\n inspections.\n\n30 U.S.C. §1718(b). Although § 1718(b) incorporates the statutory phrase “lease\n\nsites,” it proceeds to limit the scope of that phrase by authorizing BLM\n\nrepresentatives to, “without advance notice, enter upon, travel across and inspect”\n\nlease sites that exist “on Federal or Indian lands,” i.e., non-fee lands owned by the\n\nUnited States or held in trust by the United States for a tribe, and that arise out of\n\n\n 5\n Neither the IBLA nor the BLM have expressly adopted this broad definition\nof “lease.” Instead, the IBLA interpreted the identically-worded regulatory definition\nof the term “lease site” to include more than “Federal or Indian lease sites,” and also\nconcluded that the identically-worded regulatory definition of the term “lease” was\nnot incorporated into the regulatory phrase “lease site.” Aplt. App. at 170, 174. We\nreject this latter conclusion as inconsistent with the statutory language and normal\nrules of statutory construction. In particular, “it is a normal rule of statutory\nconstruction that identical words used in different parts of the same act are intended\nto have the same meaning,” and we see no evidence that Congress intended for the\nterm “lease,” as used in the term “lease site,” to carry a different meaning. Pereira v.\nSessions, 138 S. Ct. 2105, 2115 (2018).\n 19\n\fcontracts or agreements issued or approved by the United States. Further, the statute\n\nis silent with respect to how, if at all, BLM representatives may access lease sites on\n\nprivately-owned lands.\n\n Defendants concede that “Congress did not expressly address the application\n\nof Section 1718(b) inspection authority to fee lands committed to communitization\n\nagreements.” Aple. Br. at 15. But, defendants argue, “[g]iven that ambiguity, BLM\n\nreasonably exercised its delegated rulemaking authority to include the inspection of\n\nfee lands that, like the O’Hares’, are subject to a communitization agreement that was\n\napproved by the Department and involves Indian lands where the affected tribe shares\n\nin the production and royalties of the oil and gas operation.” Id.\n\n Defendants’ arguments hinge on the threshold question of whether § 1718(b) is\n\nambiguous or not. A statute is “ambiguous if it is reasonably susceptible to more\n\nthan one interpretation or capable of being understood in two or more possible senses\n\nor ways.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764\n\nF.3d 1199, 1226 (10th Cir. 2014) (quotations and citations omitted); see Chickasaw\n\nNation v. United States, 534 U.S. 84, 90 (2001). Although it may be reasonable from\n\na policy standpoint for the BLM to have authority to inspect fee lands that are subject\n\nto a communitization agreement approved by the United States, § 1718(b) simply is\n\nnot ambiguous and thus does not provide the BLM with any authority to exercise its\n\ndelegated rulemaking authority on that issue. As noted, § 1718(b) quite clearly limits\n\nthe BLM’s inspection authority to lease sites on federal and Indian lands.\n\n\n\n 20\n\f To be sure, § 1718(b) is silent with respect to inspections of lease sites on fee\n\nlands, but that silence does not render the statute ambiguous. See Spring Creek Expl.\n\n& Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1018 (10th Cir. 2018)\n\n(“silence is not ambiguity”). When the Supreme Court has discussed the exercise of\n\nagency discretion “‘in the interstices created by statutory silence,’” it has done so\n\nonly when “considering undefined terms in a statute or statutory directive to perform\n\na specific task without giving detailed instructions.” Marlow v. New Food Guy, Inc.,\n\n861 F.3d 1157, 1162 (10th Cir. 2017) (quoting Util. Air Regulatory Grp. v. EPA, 134\n\nS. Ct. 2427, 2445 (2014) (internal quotation marks omitted)). And that is simply not\n\nthe case with § 1718(b). As noted, § 1718(b) plainly focuses on lease sites “on\n\nFederal or Indian lands” and does not otherwise leave any terms or statutory\n\ndirectives undefined.\n\n For these reasons then, we conclude that § 1718(b) does not afford the BLM\n\nwith authority to inspect lease sites on privately-owned lands. Thus, we must look\n\nelsewhere to determine whether any authority exists for the BLM’s proposed\n\ninspections of the wells in this case.\n\n The Secretary has issued regulations implementing the various statutory\n\ndirectives outlined by Congress in FOGRMA. To begin with, 43 C.F.R. § 3161.1(b)\n\nstates:\n\n The regulations in this part and 43 CFR part 3170, including subparts\n 3173, 3174, and 3175, relating to site security, measurement of oil and\n gas, reporting of production and operations, and assessments or\n penalties for non-compliance with such requirements, are applicable to\n all wells and facilities on State or privately owned lands committed to a\n\n 21\n\f unit or communitization agreement, which include Federal or Indian\n lease interests, notwithstanding any provision of a unit or\n communitization agreement to the contrary.\n\n43 C.F.R. § 3161.1(b) (emphasis added).\n\n In turn, 43 C.F.R. § 3161.3, entitled “Inspections,” states:\n\n (a) The authorized officer shall establish procedures to ensure that each\n Federal and Indian lease site which is producing or is expected to\n produce significant quantities of oil or gas in any year or which has a\n history of noncompliance with applicable provisions of law or\n regulations, lease terms, orders or directives shall be inspected at least\n once annually. Similarly, each lease site on non-Federal or non-Indian\n lands subject to a formal agreement such as a unit or communitization\n agreement which has been approved by the Department of the Interior\n and in which the United States or the Indian lessors share in production\n shall be inspected annually whenever any of the foregoing criteria are\n applicable.\n (b) In accomplishing the inspections, the authorized officer may utilize\n Bureau personnel, may enter into cooperative agreements with States or\n Indian Tribes, may delegate the inspection authority to any State, or\n may contract with any non-Federal Government entities. Any\n cooperative agreement, delegation or contractual arrangement shall not\n be effective without concurrence of the Secretary and shall include\n applicable provisions of the Federal Oil and Gas Royalty Management\n Act.\n\n43 C.F.R. § 3163.3(a) and (b).6\n\n Lastly, 43 C.F.R. § 3162.1, which discusses “General requirements” for\n\noperating rights owners and operators, states:\n\n (a) The operating rights owner or operator, as appropriate, shall comply\n with applicable laws and regulations; with the lease terms, Onshore Oil\n\n 6\n The Secretary’s authority to enact the portion of this regulation concerning\ninspections on privately-owned lands arises both from the general purposes\nprovisions of FOGRMA, § 1701(b)(3)-(5), as well as § 1711(a) and (b). Section\n1711(a) directs the Secretary, in part, to “establish a comprehensive inspection . . .\nsystem,” and §1711(b) directs the Secretary to conduct annual inspections of certain\nlease sites, without limitation to sites contained on Federal or Indian lands.\n 22\n\f and Gas Orders, NTL’s; and with other orders and instructions of the\n authorized officer. These include, but are not limited to, conducting all\n operations in a manner which ensures the proper handling,\n measurement, disposition, and site security of leasehold production;\n which protects other natural resources and environmental quality; which\n protects life and property; and which results in maximum ultimate\n economic recovery of oil and gas with minimum waste and with\n minimum adverse effect on ultimate recovery of other mineral\n resources.\n\n (b) The operator shall permit properly identified authorized\n representatives to enter upon, travel across and inspect lease sites and\n records normally kept on the lease pertinent thereto without advance\n notice. Inspections normally will be conducted during those hours when\n responsible persons are expected to be present at the operation being\n inspected. Such permission shall include access to secured facilities on\n such lease sites for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n mineral leasing laws, the regulations in this part, and any applicable\n orders, notices or directives.\n\n (c) For the purpose of making any inspection or investigation, the\n Secretary or his authorized representative shall have the same right to\n enter upon or travel across any lease site as the operator has acquired\n by purchase, condemnation or otherwise.\n\n43 C.F.R. § 3162.1 (emphasis added).7\n\n The regulatory provisions thus provide for an inspection framework that\n\napplies to federal, Indian, and certain privately-owned lands, but that, not\n\nsurprisingly, provides the BLM with greater inspection authority over federal and\n\nIndian lands than privately-owned lands. With respect to lease sites on federal and\n\nIndian land that are “producing or . . . expected to produce significant quantities of\n\noil or gas in a year or which ha[ve] a history of noncompliance with applicable\n\n\n 7\n It was this regulation that Maralex was cited for violating in the four INCs.\nAplt. App. at 168.\n 23\n\fprovisions of law or regulations,” BLM representatives must inspect such lease sites\n\n“at least once annually.” 43 C.F.R. § 3161.3(a). As for lease sites on privately-\n\nowned lands that are committed to a unit or communitization agreement that has been\n\napproved by the Department of the Interior, they are required to “be inspected\n\nannually whenever” they are “producing or . . . expected to produce significant\n\nquantities of oil or gas in any year or” if they “ha[ve] a history of noncompliance\n\nwith applicable provisions of law or regulations.”8 43 C.F.R. § 3161.3(a). They can\n\nalso be inspected by the BLM for purposes of assessing “site security, measurement,\n\nreporting of production and operations, and assessments or penalties for\n\nnoncompliance with such requirements.” 43 C.F.R. § 3161.2. Further, the operating\n\nrights owner or operator of any such lease site on privately-owned land is required to\n\n“permit properly identified authorized representatives” of the BLM “to enter upon,\n\ntravel across and inspect lease sites and records normally kept on the lease pertinent\n\nthereto without advance notice.” 43 C.F.R. § 3162.1(b). Any such inspections,\n\nhowever, must normally “be conducted during those hours when responsible persons\n\nare expected to be present at the operation being inspected.” Id. In addition, “[s]uch\n\npermission” by the operating rights owner or operator “shall include access to\n\nsecured facilities on such lease sites for the purpose of making any inspection or\n\ninvestigation for determining whether there is compliance with the mineral leasing\n\n\n\n 8\n In this case, the IBLA expressly found that the wells at issue “are producing\nor expected to produce significant quantities of oil and gas,” thus rendering the wells\nsubject to annual inspection under § 3163.3(a). Aplt. App. at 172.\n 24\n\flaws, the regulations . . . , and any applicable orders, notices or directives.” Id.\n\nLastly, BLM representatives are, “for the purpose of making any inspection or\n\ninvestigation,” afforded the same right of entry to and travel access across the lease\n\nsite “as the operator has acquired by purchase, condemnation or otherwise.” Id. §\n\n3162.1(c).\n\n Thus, at least for purposes of this case, the key difference between lease sites\n\non federal/Indian lands and lease sites on privately-owned land subject to a\n\ncommunitization agreement is how BLM representatives may access them. For lease\n\nsites on federal/Indian lands, BLM representatives have the right to enter those sites\n\nby themselves without first seeking permission from the operating rights owner or\n\noperator. In contrast, for lease sites on privately-owned lands, BLM representatives\n\nmay not independently enter the sites, but instead must seek entry (but do not have to\n\ngive advance notice) from the operating rights owner or operator and the operating\n\nrights owner or operator, as noted, is obligated to allow such entry.\n\n As for how often BLM representatives may inspect the wells, the regulations\n\ncontain no limitation. Indeed, the only reference to frequency of inspections is\n\ncontained in § 3161.3(a), which, as noted, requires lease sites meeting certain\n\nrequirements to be inspected at least once annually. Section 3161.3(a) does not,\n\nhowever, impose any upper limit on the number of inspections. In other words, as\n\nboth the State Director and the IBLA concluded in their respective decisions, “[t]he\n\n[regulatory] wording ‘inspected annually’ is a minimum standard not a maximum\n\nlimitation.” Aplt. App. at 90; see id. at 176 n.10 (IBLA decision).\n\n 25\n\f In sum, the BLM had authority to inspect the wells at issue. The question\n\nremains, however, whether BLM had authority to require Maralex to provide BLM\n\nwith “a key to access the location or” allow BLM to install its own locks. Aplt. App.\n\nat 24).\n\n We agree with plaintiffs that the BLM lacks authority to require an operator or\n\nlandowner to provide the BLM with a key to the landowner’s locked gates or to allow\n\nthe BLM to place its own locks on the landowner’s locked gates. But we arrive at\n\nthis conclusion in a different manner than suggested by plaintiffs. Although\n\nplaintiffs base many of their arguments on the language of § 1718(b), that statutory\n\nsubsection, as discussed above, does not apply at all to lease sites on privately-owned\n\nlands. Instead, the parameters of inspections of lease sites on privately-owned lands\n\nare outlined in two regulations: 30 C.F.R. §§ 3162.1 and 3163.3. Neither of those\n\nregulations provide any authority for the BLM to require an operating rights owner or\n\noperator (or, for that matter, a private landowner) to (a) provide BLM with a key to a\n\nlease site on privately-owned land, or (b) to install a BLM-lock on the gates to such\n\nlease site. Rather, as discussed above, the BLM has the right to conduct\n\nunannounced inspections of such sites, but must rely on the operating rights owner or\n\noperator to afford them entry to the lease site.\n\n Defendants, for their part, cite in their appellate brief to the statutory and\n\nregulatory provisions authorizing the BLM to take “corrective action.” Aple. Br. at\n\n39 (citing 30 U.S.C. §§ 1719(a)(2)(A), (a)(2)(B) and 43 C.F.R. § 3163.1(a)(4)).\n\nThose statutory provisions, however, speak only in terms of monetary “civil\n\n 26\n\fpenalties” (the amount of which depends upon how long the violation has gone on).\n\n30 U.S.C. §§ 1719(a)(2), (b). The regulatory provisions also mention the possibility\n\nof lease cancellations and criminal penalties. 43 C.F.R. §§ 3163.1(a)(5), 3163.3.\n\nNotably, nothing in the statutory and regulatory provisions mentions the remedy\n\nimposed on the plaintiffs in this case, i.e., requiring them to provide BLM with a key\n\nor to allow BLM to install its own locks. Although defendants concede this point,\n\nthey nevertheless argue that “it is reasonable to conclude that when a landowner\n\ndenies BLM entry, the very least that the agency can permissibly do under the statute\n\nis order any reasonable remedy that will yield the access required to carry out\n\nCongress’s charge.” Id. at 39-40. We reject that argument. Requiring the provision\n\nof a key or lock access is, without question, a drastic measure that would, at a\n\nminimum, require express congressional approval. Because no such approval\n\nappears in the relevant statutes or regulations, defendants’ arguments must be\n\nrejected.\n\n III\n\n We REVERSE and REMAND to the district court with directions to enter\n\njudgment in favor of plaintiffs on their claim that the BLM lacks authority to require\n\nplaintiffs to provide the BLM with a key to access the wells at issue or to allow BLM\n\nto install its own locks.\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360231/", "author_raw": "BRISCOE, Circuit Judge."}]}	BRISCOE	LUCERO	MATHESON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582978/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 18, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n MARALEX RESOURCES, INC., a\n Colorado corporation; ALEXIS M.\n O'HARE; MARY C. O'HARE,\n\n Plaintiffs - Appellants,\n\n v. No. 17-1421\n\n DAVID BARNHARDT, in his official\n capacity as Acting Secretary of the United\n States Department of the Interior; THE\n UNITED STATES DEPARTMENT OF\n INTERIOR; THE UNITED STATES OF\n AMERICA,\n\n Defendants - Appellees.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01893-CMA)\n _________________________________\n\nWilliam E. Zimsky, Abadie & Schill, PC, Durango, Colorado, appearing for the\nAppellants.\n\nTamara N. Rountree, Attorney, Environmental and Natural Resources Division, United\nStates Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant\nAttorney General, and Eric Grant, Deputy Assistant Attorney General, United States\nDepartment of Justice, Washington, DC; William Lazarus and John L. Smeltzer,\nAttorneys, Environmental and Natural Resources Division, United States Department of\nJustice, Washington, DC; and Philip C. Lowe, Rocky Mountain Regional Solicitor’s\n\n \n In accordance with Fed. R. App. P. 43(c)(2), David Barnhardt is substituted\nfor Ryan Zinke, as the respondent in this action.\n\fOffice, Department of the Interior, Lakewood, Colorado, with her on the brief), appearing\nfor the Appellee.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C.\n\nO’Hare (the O’Hares) filed this action against the Secretary of the Department of the\n\nInterior (Secretary), the Department of the Interior, and the United States seeking\n\nreview of a decision of the Interior Board of Land Appeals (IBLA) upholding four\n\nNotices of Incidents of Noncompliance that were issued by the Bureau of Land\n\nManagement’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a\n\nBLM representative to access certain oil and gas lease sites operated by Maralex on\n\nland owned by the O’Hares. The district court affirmed the IBLA’s decision.\n\nPlaintiffs now appeal.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the\n\nBLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to\n\nrequire plaintiffs to provide BLM with a key to a lease site on privately-owned land\n\nor to allow the BLM to install its own locks on the gates to such lease site.\n\nConsequently, we reverse and remand to the district court with instructions to enter\n\njudgment in favor of plaintiffs on this “key or lock” issue.\n\n\n\n\n 2\n\f I\n\n The Parcel and its component Tracts\n\n At issue in this case is a 320-acre parcel of land (the Parcel) that is located in\n\nthe S1/2 of Section 35, Township 34 South, Range 7 West in La Plata County in\n\nsouthwestern Colorado. The Parcel, which is comprised of 240 acres of private\n\nsurface/mineral estate and 80 acres of Indian surface/mineral estate, lies over the\n\nIgnacio Blanco gas field and the Fruitland coal formation.\n\n The O’Hares own the surface and mineral estate in a 120-acre tract of land in\n\nthe SW1/4SE1/4 and E1/2SW1/4 of the Parcel (the O’Hare Tract). The Southern Ute\n\nIndian Tribe (Tribe) holds the surface and mineral estate in the W1/2SW1/4 of the\n\nParcel (the Tribe Tract). The remainder of the Parcel (the Remainder Tract)—the\n\nN1/2SE1/4 and SE1/4SE1/4—is privately-owned by the O’Hare family, J. Elmer and\n\nWanda Lee Kenner, and Irma Rowse.\n\n The leases of the Tracts\n\n On June 6, 1974, the Tribe, acting pursuant to the Indian Mineral Leasing Act\n\nof 1938, 25 U.S.C. §§ 396a-396g (2012), issued to Sun Oil Company an Indian oil\n\nand gas lease, Mining Lease Contract No. MOO-C-1420-1531, for its mineral estate\n\nin the Tribe Tract. Amoco Production Company (Amoco) later took over as the\n\nlessee.\n\n\n\n\n 3\n\f On April 28, 1995, the O’Hares issued to Maralex1 a private oil and gas lease\n\nfor the O’Hare Tract. SG Interests III, Ltd. (SG III) later joined Maralex as co-\n\nlessee.\n\n The O’Hares, Kenners, and Rowse issued three private oil and gas leases\n\ncovering the Remainder Tract. SG III and Maralex became the lessees of those\n\nleases.\n\n The Communitization Agreement\n\n In 1996, all of the parties (SG III, Maralex, the Tribe, the O’Hares, Kenners,\n\nand Rowe) “communitized” their coal and gas interests in the Parcel under the terms\n\nof a written agreement. More specifically, in a written Communitization Agreement\n\n(CA) dated May 1, 1996, the parties agreed to develop and operate the Parcel “as an\n\nentirety, with the understanding and agreement . . . that all Communitized Substances\n\nproduced therefrom [would] be allocated among the leaseholds comprising said area\n\nin the proportion that the acreage interest of each leasehold bears to the entire\n\nacreage interest committed to [the CA].” Aplt. App. at 3. The CA further stated, in\n\npertinent part, that “[t]he royalties payable on Communitized Substances allocated to\n\nthe individual leases comprising the [Tract] . . . shall be determined and paid on the\n\nbasis prescribed in each of the individual leases.” Id.\n\n Two other provisions of the CA are relevant to this case. First, the CA stated:\n\n“This agreement shall be subject to all applicable Federal and State laws or executive\n\n\n 1\n According to the record on appeal, Mary O’Hare is the president of Maralex.\nAplt. App. at 8.\n 4\n\forders, rules and regulations . . . .” Id. at 4. In addition, the CA stated: “It is agreed\n\nbetween the Parties Hereto that the Secretary of the Interior, or his duly Authorized\n\nOfficer, shall have the right of supervision over all operations within the\n\nCommunitized Area to the extent same includes the oil and gas lease(s) under which\n\nthe . . . Tribe is lessor and insofar as governed by applicable oil and gas regulations\n\nof the Department of Interior.” Id. at 5.\n\n The CA was approved by the Tribe and the Bureau of Indian Affairs (BIA)\n\neffective May 1, 1996.\n\n The wells operating under the CA\n\n There are four wells associated with the CA and arising from the underlying\n\nleases, all of which are operated by Maralex. The four wells are physically situated\n\nin two areas on the O’Hares’ private surface estate in the O’Hare Tract. Each such\n\narea is enclosed by a fence and a locked gate. All four of the wells are producing\n\n“both fee and Tribal minerals” from the Fruitland coal formation. Id. at 32.\n\nAlthough the oil and gas at issue is produced from private mineral interests and from\n\nwells situated on private surface estates, such production is, under the terms of the\n\nCA, allocated to all of the oil and gas interests, including that of the Tribe, as the\n\nowner of record title to the mineral estate in the Tribe’s Section of the Parcel.\n\n BLM’s attempt to inspect the wells\n\n On February 11, 2013, Gabriel Trujillo, a Petroleum Engineering Technician\n\nemployed by the BLM, sent an email to Maralex stating that he planned to inspect the\n\nfour wells. On February 12, 2013, Christi Reid, a Maralex employee, responded by\n\n 5\n\femail, noted that the wells were situated “on Mickey O’Hare’s property,” and stated\n\nthat she envisioned “problems with him granting access” to Trujillo. Id. at 18. One\n\nday later, on February 13, 2013, Reid emailed Trujillo again, stating: “I talked to\n\nMickey O’Hare and let him know that you want to inspect the . . . wells. He wants to\n\ntalk to you directly . . . .” Id.\n\n On February 22, 2013, Trujillo drove to the Parcel in an attempt to examine\n\nthe wells. Upon arrival, Trujillo found that there was a locked gate that prevented\n\nhim from examining the wells. That same day, Trujillo spoke by phone with Mickey\n\nO’Hare. O’Hare informed Trujillo that he had no right to inspect the wells because\n\nO’Hare owned both the surface and mineral rights.\n\n BLM’s issuance of INCs to Maralex\n\n On February 26, 2013, Trujillo completed four official BLM forms entitled\n\n“Notice of Incidents of Noncompliance” (INC). Id. at 23. The INCs noted that\n\nTrujillo had attempted unsuccessfully to access the wells on February 22, 2013. The\n\nINCs, which were sent to Maralex, alleged that Maralex was in violation of 43 C.F.R.\n\n§ 3162.1(b), and they gave Maralex until March 25, 2013, to provide Trujillo and the\n\nBLM with access to the wells. In the “Remarks” section of the INCs, Trujillo stated:\n\n“For corrective action, I will need a key to access the location or be able to put a\n\nBLM lock in with it.” Id. at 24.\n\n Maralex’s administrative appeal of the INCs\n\n On March 27, 2013, a law firm representing Maralex and the O’Hares sent a\n\nletter to BLM appealing the four INCs. The letter asserted that the BLM had\n\n 6\n\fmisinterpreted its authority to inspect oil and gas wells located on private land. More\n\nspecifically, the letter asserted that the BLM “ha[d] limited authority to inspect\n\nfacilities on Fee Tracts” and that the applicable regulations “only allow[ed] annual\n\ninspections” of such wells. Id. at 33. The letter also asserted that “there [wa]s no\n\nstatutory authority nor . . . any legitimate justification for giving the BLM unbridled\n\ndiscretion to search the facilities at issue in order to ensure that there [wa]s adequate\n\nsite security measurement and that Maralex [wa]s properly measuring the production\n\nand operation of the wells.” Id. “Thus,” the letter asserted, “BLM’s request for a\n\nkey to any gates to conduct inspections [wa]s violative of Maralex’s constitutionally\n\nguaranteed protection against unreasonable searches under the Fourth Amendment.”\n\nId. Lastly, the letter asserted that “there [wa]s no legal authority for the BLM’s\n\ndemand for unfettered access to the O’Hare’s surface.” Id. And the letter argued that\n\n“[i]f the BLM was entitled to unfettered right to access O’Hare’s property under\n\nSection 3162.1(b), it would constitute a regulatory taking of O’Hare’s property in\n\nviolation of O’Hare’s property rights as guarantee [sic] by the takings clause of the\n\nFifth Amendment.” Id. at 34.\n\n On April 10, 2013, the BLM notified Maralex’s counsel that it was treating the\n\nMarch 27, 2013 letter “as a request for State Director’s review (SDR) . . . under 43\n\nCFR 3165.3.” Id. at 88.\n\n On July 9, 2013, the BLM’s Deputy State Director, Energy, Lands, and\n\nMinerals, Colorado State Office, sent a letter to Maralex’s counsel responding to\n\neach point raised by Maralex’s counsel. The letter disagreed that the applicable\n\n 7\n\fregulations allowed only for “annual inspections for fee tracts in a CA.” Id. at 90.\n\nRather, the letter asserted, the “inspected annually” language in the regulation merely\n\nestablished a minimum standard as to what was to be accomplished. Id. As for its\n\nauthority to conduct inspections of the wells, the BLM noted that\n\n Section 101(b) of the Federal Oil and Gas Royalty Management Act of\n 1982 (FOGRMA) provides that, “Authorized and properly identified\n representatives of the Secretary may without advance notice, enter\n upon, travel across and inspect lease sites on Federal or Indian lands\n and may obtain from the operator immediate access to secured facilities\n on such lease sites, for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n requirements of the minearal [sic] leasing laws and this Act.”\n\nId. at 90-91 (italics in original). The BLM in turn stated that “[s]ince the subject\n\nwells’ production is subject to a federal CA and the government receives a portion of\n\nthe production’s royalty, the BLM is responsible for assuring production\n\naccountability” and that “[t]his includes inspections for site security, proper handling,\n\nmeasurement and reporting of production and protection against product theft.” Id. at\n\n91. “Therefore,” the letter stated, “BLM must be allowed to perform the production\n\nrelated inspection which necessitates physical access to the subject wells and their\n\nassociated facilities without advance notice.” Id. In a section entitled “Decision,”\n\nthe letter stated:\n\n Upon review, the four INCs covering denied access to the subject\n wells were properly issued and are upheld. The stay of enforcement\n action granted in our April 10, 2013, letter to Maralex is hereby lifted.\n\n Maralex must provide the BLM Tres Rios Field Office access\n without advance notice as required by the INCs and the regulations. If\n Maralex chooses not to provide access as required, Maralex will be\n subject to assessments pursuant to 43 CFR 3163.1. In addition further\n\n 8\n\f non-compliance shall result in proposed civil penalties pursuant to 43\n CFR 3163.2(e)(1).\n\nId. at 93.\n\n On August 20, 2013, Maralex’s counsel sent the BLM a notice of appeal of the\n\nJuly 9, 2013 decision. Id. at 97. Maralex’s counsel followed that up by filing with\n\nthe IBLA a Statement of Reasons for Appeal. Id. at 98. The Statement of Reasons\n\nargued that the regulation relied on by the BLM, 43 C.F.R. § 3162.1(b), applies only\n\n“to Federal and Indian lease sites,” and that “there is no statutory authority to support\n\nthe BLM’s suggestion that it has the right to conduct warrantless searches of\n\nMaralex’s facilities.” Id. at 113. “Thus,” the Statement of Reasons asserted, “BLM’s\n\nrequest violates Maralex’s right not to be subject to unreasonable searches as\n\nguaranteed by the Fourth Amendment.” Id. Lastly, the Statement of Reasons\n\nasserted that “if the BLM does have the statutory and regulatory authority to access\n\nthe O’Hare’s Fee Tract at any time, such authority would constitute a regulatory\n\ntaking of the O’Hare’s property in violation of their due process rights under the\n\nFifth Amendment.” Id.\n\n On July 10, 2015, the IBLA issued a written decision affirming the BLM’s\n\nJuly 9, 2013 decision. In doing so, the IBLA did not address whether plaintiffs were\n\nrequired to provide the BLM with a key or allow the BLM to install its own locks on\n\nMaralex’s gates, nor did the IBLA address plaintiffs’ constitutional arguments.\n\n The district court proceedings\n\n\n\n\n 9\n\f On September 1, 2015, Maralex and the O’Hares initiated these proceedings\n\nby filing a complaint in federal district court against the Secretary, the Department of\n\nthe Interior, and the United States. The complaint sought reversal of the IBLA’s\n\ndecision, as well as declaratory relief.\n\n On October 19, 2017, the district court issued an order affirming the IBLA’s\n\ndetermination. Plaintiffs now appeal.\n\n II\n\n Plaintiffs raise two issues on appeal: (1) whether they waived their argument\n\nthat the BLM lacked authority to require them to provide the BLM with keys to the\n\nlocked gates on the O’Hares’ private property or, alternatively, to allow the BLM to\n\nplace its own locks on those gates; and (2) whether the BLM has statutory or\n\nregulatory authority to require plaintiffs to provide the BLM with keys to locked\n\ngates on privately-owned lands or, alternatively, to allow the BLM to place its own\n\nlocks on such gates.2 As discussed in more detail below, whether plaintiffs waived\n\ntheir argument is a close question, but assuming they did, we nevertheless exercise\n\ndiscretion to address the underlying issue. We in turn conclude that BLM lacked\n\nauthority to impose the “key or lock” requirement.\n\n Did plaintiffs waive their argument that the BLM lacked authority\n to require them to provide keys to their locked gates or to allow the\n BLM to place its own locks on those gates?\n\n\n 2\n Until recently, plaintiffs asserted three additional issues on appeal, including\nFourth and Fifth Amendment challenges to the inspection protocol advocated by the\nBLM. At oral argument, however, plaintiffs abandoned those issues. Consequently,\nwe do not address them.\n 10\n\f As noted, plaintiffs first argue that the district court erred in concluding that\n\nthey waived their argument that the BLM lacked authority to require them to provide\n\nthe BLM with keys to locked gates or to allow the BLM to place its own locks on\n\nthose gates. The district court concluded that plaintiffs “did not present to the IBLA\n\nthis particular argument that the BLM’s corrective action exceeded its authority.”\n\nAplt. App. at 207-08. The district court in turn concluded “that Plaintiffs waived this\n\nargument for purposes of this appeal and [it] decline[d] to consider it.” Id. at 208.\n\n To resolve this issue, we begin by turning to the record. Plaintiffs, in their\n\ninitial appeal of the INCs, “claim[ed] that BLM ha[d] no statutory authority or\n\nlegitimate justification giving the BLM unbridled discretion to search the subject\n\nwell facilities in order to ensure site security and proper measurement” and that,\n\nconsequently, “the BLM’s request for a key to any gates to conduct inspections [wa]s\n\nin violation of Maralex’s constitutionally guaranteed protection against unreasonable\n\nsearches under the Fourth Amendment.” Aplt. App. at 90.\n\n In their appeal to the IBLA from the State Director’s decision denying their\n\ninitial appeal, plaintiffs argued, in pertinent part, that “there [wa]s no statutory\n\nauthority nor . . . any legitimate justification for giving the BLM unbridled discretion\n\nto search the facilities at issue at any time and without notice,” and that,\n\nconsequently, “BLM’s request for a key to any gates to conduct unannounced\n\ninspections [wa]s violative of Maralex’s constitutionally guaranteed protection\n\nagainst unreasonable searches under the Fourth Amendment.” Id. at 102. Plaintiffs\n\nfurther argued that “there [wa]s no statutory support for warrantless, unannounced\n\n 11\n\finspections of [the] Fee Tracts,” and thus the BLM could not “rely on” its own\n\nregulations “for conducting unannounced, warrantless searches of the sites at issue.”\n\nId. at 107–08. Plaintiffs also argued that “Paragraph 13” of the CA “does not provide\n\nthe BLM with the unlimited right to conduct inspections without advance notice nor\n\ndoes it form the basis for giving the BLM a key to have unlimited physical access to\n\nthe wells and related facilities on Fee Tracts, which is applicable only to Federal and\n\nIndian lease sites.” Id. at 112. Lastly, the plaintiffs challenged the State Director’s\n\nrejection of “the O’Hare’s [sic] assertion that forcing them to supply the BLM with a\n\nkey to a lock to allow the BLM to have physical access to their surface property for\n\nunannounced inspections of Maralex’s wells and related facilities located on the\n\nO’Hare’s [sic] surface constitute[d] an unauthorized takings under the Fifth\n\nAmendment.” Id. at 112-13.\n\n In our view, it is a close question whether plaintiffs presented their argument\n\nto the IBLA that BLM exceeded its statutory and regulatory authority by requiring a\n\nkey or lock in the INCs. On the one hand, plaintiffs clearly argued, as part of their\n\nFourth Amendment challenge, that the BLM lacked both statutory and regulatory\n\nauthority to impose the key/lock requirement. On the other hand, plaintiffs expressly\n\nasserted before the IBLA that it lacked authority to address their Fourth Amendment\n\nchallenge and they asked the IBLA not to consider it.\n\n Even assuming, however, that plaintiffs failed to properly present to the IBLA\n\ntheir argument that the key/lock requirement exceeded the BLM’s statutory and\n\nregulatory authority, we nevertheless choose to exercise our discretion to address that\n\n 12\n\fissue.3 See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.\n\n439, 447–48 (1993) (discussing authority of appellate court to address potentially\n\nwaived issue). We have held, albeit in a slightly different context, that we may\n\ndepart from general waiver principles “particularly when we are presented with a\n\nstrictly legal question, the proper resolution of which is beyond doubt or when\n\nmanifest injustice would otherwise result.” Daigle v. Shell Oil Co., 972 F.2d 1527,\n\n1539 (10th Cir. 1992). Further, in considering whether to address an alternative\n\ntheory, we take into account (1) “whether the ground was fully briefed and argued\n\nhere and below,” (2) “whether the parties have had a fair opportunity to develop the\n\nfactual record,” and (3) “whether, in light of factual findings to which we defer or\n\nuncontested facts, our decision would involve only questions of law.” Elkins v.\n\nComfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations omitted).\n\n In this case, the issue of the BLM’s statutory and regulatory authority has been\n\nfully briefed and argued in this court by both sides. Further, the factual record is\n\nessentially undisputed and, thus, we are presented with only a question of law.\n\nLastly, and perhaps most importantly, the BLM has indicated its intention to enforce\n\nthe key/lock requirement at the conclusion of this litigation. On October 22, 2018,\n\n\n 3\n We are not aware of, nor has the BLM cited to, any authority holding that\npreservation of the issue before the IBLA is a jurisdictional prerequisite. See Air\nCourier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517,\n523 n.3 (1991) (“The judicial review provisions of the APA are not jurisdictional . . .\n.”); Chissoe v. Zinke, 725 F. App’x 614, 621 (10th Cir. 2018) (stating that “judicial\nexhaustion requirements under the APA are prudential only.”); Vietnam Veterans of\nAm. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that\nthe review provisions of the APA are not jurisdictional is now firmly established.”).\n 13\n\fwe issued an order to show cause directing the parties to address, in pertinent part,\n\nthe question of whether the BLM was continuing to require Maralex to provide the\n\nBLM with a key to the lock on the O’Hares’ gate or to allow the BLM to place its\n\nown lock on the gate. On December 18, 2018, defendants responded that, indeed,\n\n“BLM continues to require Maralex to either provide the agency with a key to the\n\nlock on the O’Hares’ gate or allow BLM to place its own lock on the gate.” Aple.\n\nResp. to Order to Show Cause at 2. Defendants asserted that, “[i]n the absence of\n\ncompliance with the [key/lock requirement] in the INCs, Mr. O’Hare may refuse\n\nBLM access to the wells at any time, as he did in February 2013 (which led to BLM’s\n\nissuance of the INCs).” Id. at 3. Thus, despite the fact that the INCs were issued\n\nnearly six years ago, it is clear that the BLM intends to enforce the key/lock\n\nrequirement once this litigation ends. For this reason, we conclude that the interests\n\nof justice are best served if we address the merits of plaintiffs’ argument that BLM\n\nlacks statutory and regulatory authority to impose the key/lock requirement.\n\n Does the BLM have authority to require a landowner or operator\n to provide the BLM with keys to the landowner’s locked gates or allow\n the BLM to place its own locks on the landowner’s gates?\n\n We now turn to the merits of plaintiffs’ argument. Plaintiffs assert that, even\n\nassuming some statutory or regulatory authority exists for the BLM to conduct\n\ninspections on fee lands without advanced notice, “there are limits to such\n\ninspections.” Aplt. Br. at 40. Plaintiffs point to the language of 30 U.S.C. § 1718 to\n\nsupport their position. Section 1718, plaintiffs note, “limits the right to enter upon,\n\ntravel across and inspect lease sites to not only ‘authorized’ representatives of the\n\n 14\n\fSecretary, but to representatives that are ‘properly identified.’” Id. And, plaintiffs\n\nargue, “[b]ecause the landowner and the operator have the right to ensure that the\n\nrepresentative is properly identified, the BLM cannot force either the landowner or\n\nthe operator to provide a key to the landowner’s locked gates or be forced to allow\n\nthe BLM to place a lock on the landowner’s locked gates since by doing so neither\n\nthe landowner nor operator will be able to check the identification of the person(s)\n\nentering upon, travelling across, and/or inspecting the facilities.” Id. at 40-41.\n\nLastly, plaintiffs argue that “[a]ll that is required of the operator under Section\n\n1718(b) is to provide ‘immediate access to secured facilities’ to a properly identified\n\nrepresentative of the Secretary.” Id. at 41. This means, plaintiffs argue, that “if the\n\noperator is on site at the time of the inspection, it is required to open any gates or\n\notherwise secured facilities” and “[i]f the operator is not on the lease site when the\n\nauthorized, properly identified representative arrives at the lease site, then the\n\noperator is required to go to the lease site and provide immediate access.” Id.\n\n Defendants argue, in response, that “the INCs’ corrective action requiring\n\nPlaintiffs to provide BLM with key or lock access is permissible under the statute and\n\nthe regulations.” Aple. Br. at 39. In particular, defendants assert that “FOGRMA\n\nand its implementing regulations provide that any person who fails to allow\n\nauthorized inspections is liable for penalties, which may not be applied if the liable\n\nperson takes the prescribed corrective action within the required timeframe.” Id.\n\n a) Standard of review\n\n\n\n 15\n\f Although this is an appeal from the district court’s decision, we accord no\n\nparticular deference to that decision. Instead, we conduct our own independent\n\nreview of the agency’s decision. Exxon Mobil Oil Corp. v. Norton, 346 F.3d 1244,\n\n1248 (10th Cir. 2003). Under the Administrative Procedures Act, we will “set aside\n\nagency’s action if it is arbitrary, capricious, an abuse of discretion, or otherwise not\n\nin accordance with law.” Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th\n\nCir. 2006) (internal quotations omitted); see 5 U.S.C. § 706(2)(A).\n\n When reviewing an agency’s interpretation of a statute it administers, we first\n\ndetermine whether Congress has directly spoken to the precise issue. See Chevron,\n\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Cliffs Synfuel\n\nCorp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002). “If the intent of Congress is\n\nclear, that is the end of the matter; for the court . . . must give effect to the\n\nunambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If,\n\nhowever, the statute is silent or ambiguous on the issue in question, we do not impose\n\nour own construction on the statute, but rather ascertain whether the agency’s\n\ninterpretation is a permissible construction of the statute. Id. at 843. If it is, we defer\n\nto that interpretation. Id. at 844. Our review of federal regulations is similar. “In the\n\nusual course, when an agency is authorized by Congress to issue regulations and\n\npromulgates a regulation interpreting a statute it enforces, the interpretation receives\n\ndeference if the statute is ambiguous and if the agency’s interpretation is reasonable.”\n\nEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016). “This principle is\n\nimplemented by the two-step analysis set forth in Chevron.” Id. “At the first step, a\n\n 16\n\fcourt must determine whether Congress has ‘directly spoken to the precise question\n\nat issue.” Encino, 136 S. Ct. at 2124 (quoting Chevron, 467 U.S. at 842). “If the\n\nintent of Congress is clear, that is the end of the matter; for the court, as well as the\n\nagency, must give effect to the unambiguously expressed intent of Congress.”4\n\nChevron, 467 U.S. at 842-43. “If not, then at the second step the court must defer to\n\nthe agency’s interpretation if it is ‘reasonable.’” Encino, 136 S. Ct. at 2125 (quoting\n\nChevron, 467 U.S. at 844). “It is well established that an agency’s interpretation\n\nneed not be the only possible reading of a regulation—or even the best one—to\n\nprevail.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013). “When an\n\nagency interprets its own regulation, the Court, as a general rule, defers to it unless\n\nthat interpretation is plainly erroneous or inconsistent with the regulation.” Id.\n\n(quotation marks omitted).\n\n b) Analysis\n\n We begin our analysis by briefly examining the overall statutory and\n\nregulatory scheme for inspections of oil and gas lease sites that implicate Indian\n\n\n\n\n 4\n At the first step of the Chevron analysis, “we must giv[e] all undefined terms\ntheir ordinary meaning.’” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity\nLoan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014) (quoting Fed. Hous. Fin. Agency v.\nUBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013)). “We may consult a\ndictionary to determine the plain meaning of a term” and may “also take into account\nthe broader context of the statute as a whole when ascertaining the meaning of a\nparticular provision.” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th\nCir. 2009) (quotation marks and citation omitted).\n 17\n\fmineral interests. In § 1702 of FOGRMA, Congress set forth the following\n\ndefinitions that are relevant to understanding the substantive provisions of the Act:\n\n (1) “Federal land” means all land and interests in land owned by the\n United States which are subject to the mineral leasing laws, including\n mineral resources or mineral estates reserved to the United States in the\n conveyance of a surface or nonmineral estate;\n ···\n (3) “Indian lands” means any lands or interest in lands of an Indian tribe\n or an Indian allottee held in trust by the United States or which is\n subject to Federal restriction against alienation or which is administered\n by the United States pursuant to section 14(g) of Public Law 92-203 [43\n USC § 1613(g)], as amended, including mineral resources and mineral\n estates reserved to an Indian tribe or an Indian allottee in the\n conveyance of a surface or nonmineral estate, except that such term\n does not include any lands subject to the provisions of section 3 of the\n Act of June 28, 1906 (34 Stat. 539) [unclassified];\n ···\n (5) “lease” means any contract, profit-share arrangement, joint venture,\n or other agreement issued or approved by the United States under a\n mineral leasing law that authorizes exploration for, extraction of, or\n removal of oil or gas;\n (6) “lease site” means any lands or submerged lands, including the\n surface of a severed mineral estate, on which exploration for, or\n extraction or removal of, oil or gas is authorized pursuant to a lease;\n ···\n\n30 U.S.C. § 1702(1), (3), (5), (6).\n\n In our view, the plain language of the statutory definition of “lease” includes\n\ncommunitization agreements approved by the United States, such as the one at issue\n\nin this case. More specifically, a communitization agreement is a “contract” or\n\n“other agreement” that, depending upon the circumstances, has been “approved by\n\nthe United States under a mineral leasing law,” i.e., federal law governing mineral\n\nrights on Indian and trust land, “that authorizes exploration for, extraction of, or\n\n\n\n 18\n\fremoval of oil or gas.”5 Thus, the statutory definition of “lease site” necessarily\n\nincludes any lands, including privately-owned lands, on which exploration for and\n\nextraction of oil and gas is occurring pursuant to a communitization agreement.\n\n Section 1718 of FOGRMA, entitled “Inspection,” provides in pertinent part as\n\nfollows:\n\n (b) Inspection of lease sites for compliance with mineral leasing laws\n and 30 USCS §§ 1701 et seq. Authorized and properly identified\n representatives of the Secretary may without advance notice, enter upon,\n travel across and inspect lease sites on Federal or Indian lands and may\n obtain from the operator immediate access to secured facilities on such\n lease sites, for the purpose of making any inspection or investigation for\n determining whether there is compliance with the requirements of the\n mineral leasing laws and this Act. The Secretary shall develop\n guidelines setting forth the coverage and the frequency of such\n inspections.\n\n30 U.S.C. §1718(b). Although § 1718(b) incorporates the statutory phrase “lease\n\nsites,” it proceeds to limit the scope of that phrase by authorizing BLM\n\nrepresentatives to, “without advance notice, enter upon, travel across and inspect”\n\nlease sites that exist “on Federal or Indian lands,” i.e., non-fee lands owned by the\n\nUnited States or held in trust by the United States for a tribe, and that arise out of\n\n\n 5\n Neither the IBLA nor the BLM have expressly adopted this broad definition\nof “lease.” Instead, the IBLA interpreted the identically-worded regulatory definition\nof the term “lease site” to include more than “Federal or Indian lease sites,” and also\nconcluded that the identically-worded regulatory definition of the term “lease” was\nnot incorporated into the regulatory phrase “lease site.” Aplt. App. at 170, 174. We\nreject this latter conclusion as inconsistent with the statutory language and normal\nrules of statutory construction. In particular, “it is a normal rule of statutory\nconstruction that identical words used in different parts of the same act are intended\nto have the same meaning,” and we see no evidence that Congress intended for the\nterm “lease,” as used in the term “lease site,” to carry a different meaning. Pereira v.\nSessions, 138 S. Ct. 2105, 2115 (2018).\n 19\n\fcontracts or agreements issued or approved by the United States. Further, the statute\n\nis silent with respect to how, if at all, BLM representatives may access lease sites on\n\nprivately-owned lands.\n\n Defendants concede that “Congress did not expressly address the application\n\nof Section 1718(b) inspection authority to fee lands committed to communitization\n\nagreements.” Aple. Br. at 15. But, defendants argue, “[g]iven that ambiguity, BLM\n\nreasonably exercised its delegated rulemaking authority to include the inspection of\n\nfee lands that, like the O’Hares’, are subject to a communitization agreement that was\n\napproved by the Department and involves Indian lands where the affected tribe shares\n\nin the production and royalties of the oil and gas operation.” Id.\n\n Defendants’ arguments hinge on the threshold question of whether § 1718(b) is\n\nambiguous or not. A statute is “ambiguous if it is reasonably susceptible to more\n\nthan one interpretation or capable of being understood in two or more possible senses\n\nor ways.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764\n\nF.3d 1199, 1226 (10th Cir. 2014) (quotations and citations omitted); see Chickasaw\n\nNation v. United States, 534 U.S. 84, 90 (2001). Although it may be reasonable from\n\na policy standpoint for the BLM to have authority to inspect fee lands that are subject\n\nto a communitization agreement approved by the United States, § 1718(b) simply is\n\nnot ambiguous and thus does not provide the BLM with any authority to exercise its\n\ndelegated rulemaking authority on that issue. As noted, § 1718(b) quite clearly limits\n\nthe BLM’s inspection authority to lease sites on federal and Indian lands.\n\n\n\n 20\n\f To be sure, § 1718(b) is silent with respect to inspections of lease sites on fee\n\nlands, but that silence does not render the statute ambiguous. See Spring Creek Expl.\n\n& Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1018 (10th Cir. 2018)\n\n(“silence is not ambiguity”). When the Supreme Court has discussed the exercise of\n\nagency discretion “‘in the interstices created by statutory silence,’” it has done so\n\nonly when “considering undefined terms in a statute or statutory directive to perform\n\na specific task without giving detailed instructions.” Marlow v. New Food Guy, Inc.,\n\n861 F.3d 1157, 1162 (10th Cir. 2017) (quoting Util. Air Regulatory Grp. v. EPA, 134\n\nS. Ct. 2427, 2445 (2014) (internal quotation marks omitted)). And that is simply not\n\nthe case with § 1718(b). As noted, § 1718(b) plainly focuses on lease sites “on\n\nFederal or Indian lands” and does not otherwise leave any terms or statutory\n\ndirectives undefined.\n\n For these reasons then, we conclude that § 1718(b) does not afford the BLM\n\nwith authority to inspect lease sites on privately-owned lands. Thus, we must look\n\nelsewhere to determine whether any authority exists for the BLM’s proposed\n\ninspections of the wells in this case.\n\n The Secretary has issued regulations implementing the various statutory\n\ndirectives outlined by Congress in FOGRMA. To begin with, 43 C.F.R. § 3161.1(b)\n\nstates:\n\n The regulations in this part and 43 CFR part 3170, including subparts\n 3173, 3174, and 3175, relating to site security, measurement of oil and\n gas, reporting of production and operations, and assessments or\n penalties for non-compliance with such requirements, are applicable to\n all wells and facilities on State or privately owned lands committed to a\n\n 21\n\f unit or communitization agreement, which include Federal or Indian\n lease interests, notwithstanding any provision of a unit or\n communitization agreement to the contrary.\n\n43 C.F.R. § 3161.1(b) (emphasis added).\n\n In turn, 43 C.F.R. § 3161.3, entitled “Inspections,” states:\n\n (a) The authorized officer shall establish procedures to ensure that each\n Federal and Indian lease site which is producing or is expected to\n produce significant quantities of oil or gas in any year or which has a\n history of noncompliance with applicable provisions of law or\n regulations, lease terms, orders or directives shall be inspected at least\n once annually. Similarly, each lease site on non-Federal or non-Indian\n lands subject to a formal agreement such as a unit or communitization\n agreement which has been approved by the Department of the Interior\n and in which the United States or the Indian lessors share in production\n shall be inspected annually whenever any of the foregoing criteria are\n applicable.\n (b) In accomplishing the inspections, the authorized officer may utilize\n Bureau personnel, may enter into cooperative agreements with States or\n Indian Tribes, may delegate the inspection authority to any State, or\n may contract with any non-Federal Government entities. Any\n cooperative agreement, delegation or contractual arrangement shall not\n be effective without concurrence of the Secretary and shall include\n applicable provisions of the Federal Oil and Gas Royalty Management\n Act.\n\n43 C.F.R. § 3163.3(a) and (b).6\n\n Lastly, 43 C.F.R. § 3162.1, which discusses “General requirements” for\n\noperating rights owners and operators, states:\n\n (a) The operating rights owner or operator, as appropriate, shall comply\n with applicable laws and regulations; with the lease terms, Onshore Oil\n\n 6\n The Secretary’s authority to enact the portion of this regulation concerning\ninspections on privately-owned lands arises both from the general purposes\nprovisions of FOGRMA, § 1701(b)(3)-(5), as well as § 1711(a) and (b). Section\n1711(a) directs the Secretary, in part, to “establish a comprehensive inspection . . .\nsystem,” and §1711(b) directs the Secretary to conduct annual inspections of certain\nlease sites, without limitation to sites contained on Federal or Indian lands.\n 22\n\f and Gas Orders, NTL’s; and with other orders and instructions of the\n authorized officer. These include, but are not limited to, conducting all\n operations in a manner which ensures the proper handling,\n measurement, disposition, and site security of leasehold production;\n which protects other natural resources and environmental quality; which\n protects life and property; and which results in maximum ultimate\n economic recovery of oil and gas with minimum waste and with\n minimum adverse effect on ultimate recovery of other mineral\n resources.\n\n (b) The operator shall permit properly identified authorized\n representatives to enter upon, travel across and inspect lease sites and\n records normally kept on the lease pertinent thereto without advance\n notice. Inspections normally will be conducted during those hours when\n responsible persons are expected to be present at the operation being\n inspected. Such permission shall include access to secured facilities on\n such lease sites for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n mineral leasing laws, the regulations in this part, and any applicable\n orders, notices or directives.\n\n (c) For the purpose of making any inspection or investigation, the\n Secretary or his authorized representative shall have the same right to\n enter upon or travel across any lease site as the operator has acquired\n by purchase, condemnation or otherwise.\n\n43 C.F.R. § 3162.1 (emphasis added).7\n\n The regulatory provisions thus provide for an inspection framework that\n\napplies to federal, Indian, and certain privately-owned lands, but that, not\n\nsurprisingly, provides the BLM with greater inspection authority over federal and\n\nIndian lands than privately-owned lands. With respect to lease sites on federal and\n\nIndian land that are “producing or . . . expected to produce significant quantities of\n\noil or gas in a year or which ha[ve] a history of noncompliance with applicable\n\n\n 7\n It was this regulation that Maralex was cited for violating in the four INCs.\nAplt. App. at 168.\n 23\n\fprovisions of law or regulations,” BLM representatives must inspect such lease sites\n\n“at least once annually.” 43 C.F.R. § 3161.3(a). As for lease sites on privately-\n\nowned lands that are committed to a unit or communitization agreement that has been\n\napproved by the Department of the Interior, they are required to “be inspected\n\nannually whenever” they are “producing or . . . expected to produce significant\n\nquantities of oil or gas in any year or” if they “ha[ve] a history of noncompliance\n\nwith applicable provisions of law or regulations.”8 43 C.F.R. § 3161.3(a). They can\n\nalso be inspected by the BLM for purposes of assessing “site security, measurement,\n\nreporting of production and operations, and assessments or penalties for\n\nnoncompliance with such requirements.” 43 C.F.R. § 3161.2. Further, the operating\n\nrights owner or operator of any such lease site on privately-owned land is required to\n\n“permit properly identified authorized representatives” of the BLM “to enter upon,\n\ntravel across and inspect lease sites and records normally kept on the lease pertinent\n\nthereto without advance notice.” 43 C.F.R. § 3162.1(b). Any such inspections,\n\nhowever, must normally “be conducted during those hours when responsible persons\n\nare expected to be present at the operation being inspected.” Id. In addition, “[s]uch\n\npermission” by the operating rights owner or operator “shall include access to\n\nsecured facilities on such lease sites for the purpose of making any inspection or\n\ninvestigation for determining whether there is compliance with the mineral leasing\n\n\n\n 8\n In this case, the IBLA expressly found that the wells at issue “are producing\nor expected to produce significant quantities of oil and gas,” thus rendering the wells\nsubject to annual inspection under § 3163.3(a). Aplt. App. at 172.\n 24\n\flaws, the regulations . . . , and any applicable orders, notices or directives.” Id.\n\nLastly, BLM representatives are, “for the purpose of making any inspection or\n\ninvestigation,” afforded the same right of entry to and travel access across the lease\n\nsite “as the operator has acquired by purchase, condemnation or otherwise.” Id. §\n\n3162.1(c).\n\n Thus, at least for purposes of this case, the key difference between lease sites\n\non federal/Indian lands and lease sites on privately-owned land subject to a\n\ncommunitization agreement is how BLM representatives may access them. For lease\n\nsites on federal/Indian lands, BLM representatives have the right to enter those sites\n\nby themselves without first seeking permission from the operating rights owner or\n\noperator. In contrast, for lease sites on privately-owned lands, BLM representatives\n\nmay not independently enter the sites, but instead must seek entry (but do not have to\n\ngive advance notice) from the operating rights owner or operator and the operating\n\nrights owner or operator, as noted, is obligated to allow such entry.\n\n As for how often BLM representatives may inspect the wells, the regulations\n\ncontain no limitation. Indeed, the only reference to frequency of inspections is\n\ncontained in § 3161.3(a), which, as noted, requires lease sites meeting certain\n\nrequirements to be inspected at least once annually. Section 3161.3(a) does not,\n\nhowever, impose any upper limit on the number of inspections. In other words, as\n\nboth the State Director and the IBLA concluded in their respective decisions, “[t]he\n\n[regulatory] wording ‘inspected annually’ is a minimum standard not a maximum\n\nlimitation.” Aplt. App. at 90; see id. at 176 n.10 (IBLA decision).\n\n 25\n\f In sum, the BLM had authority to inspect the wells at issue. The question\n\nremains, however, whether BLM had authority to require Maralex to provide BLM\n\nwith “a key to access the location or” allow BLM to install its own locks. Aplt. App.\n\nat 24).\n\n We agree with plaintiffs that the BLM lacks authority to require an operator or\n\nlandowner to provide the BLM with a key to the landowner’s locked gates or to allow\n\nthe BLM to place its own locks on the landowner’s locked gates. But we arrive at\n\nthis conclusion in a different manner than suggested by plaintiffs. Although\n\nplaintiffs base many of their arguments on the language of § 1718(b), that statutory\n\nsubsection, as discussed above, does not apply at all to lease sites on privately-owned\n\nlands. Instead, the parameters of inspections of lease sites on privately-owned lands\n\nare outlined in two regulations: 30 C.F.R. §§ 3162.1 and 3163.3. Neither of those\n\nregulations provide any authority for the BLM to require an operating rights owner or\n\noperator (or, for that matter, a private landowner) to (a) provide BLM with a key to a\n\nlease site on privately-owned land, or (b) to install a BLM-lock on the gates to such\n\nlease site. Rather, as discussed above, the BLM has the right to conduct\n\nunannounced inspections of such sites, but must rely on the operating rights owner or\n\noperator to afford them entry to the lease site.\n\n Defendants, for their part, cite in their appellate brief to the statutory and\n\nregulatory provisions authorizing the BLM to take “corrective action.” Aple. Br. at\n\n39 (citing 30 U.S.C. §§ 1719(a)(2)(A), (a)(2)(B) and 43 C.F.R. § 3163.1(a)(4)).\n\nThose statutory provisions, however, speak only in terms of monetary “civil\n\n 26\n\fpenalties” (the amount of which depends upon how long the violation has gone on).\n\n30 U.S.C. §§ 1719(a)(2), (b). The regulatory provisions also mention the possibility\n\nof lease cancellations and criminal penalties. 43 C.F.R. §§ 3163.1(a)(5), 3163.3.\n\nNotably, nothing in the statutory and regulatory provisions mentions the remedy\n\nimposed on the plaintiffs in this case, i.e., requiring them to provide BLM with a key\n\nor to allow BLM to install its own locks. Although defendants concede this point,\n\nthey nevertheless argue that “it is reasonable to conclude that when a landowner\n\ndenies BLM entry, the very least that the agency can permissibly do under the statute\n\nis order any reasonable remedy that will yield the access required to carry out\n\nCongress’s charge.” Id. at 39-40. We reject that argument. Requiring the provision\n\nof a key or lock access is, without question, a drastic measure that would, at a\n\nminimum, require express congressional approval. Because no such approval\n\nappears in the relevant statutes or regulations, defendants’ arguments must be\n\nrejected.\n\n III\n\n We REVERSE and REMAND to the district court with directions to enter\n\njudgment in favor of plaintiffs on their claim that the BLM lacks authority to require\n\nplaintiffs to provide the BLM with a key to access the wells at issue or to allow BLM\n\nto install its own locks.\n\n\n\n\n 27\n[END_CASE]", "role": "user" } ]
4,583,373	Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.	Thoung v. United States	2019-01-22	17-3220	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Tymkovich, Holmes, Phillips", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887889/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887890/", "author_raw": ""}, {"type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n January 22, 2019\n PUBLISH Elisabeth A. Shumaker\n Clerk of Court\n UNITED STATES COURT OF APPEALS\n\n TENTH CIRCUIT\n\n\n\n LINA THOUNG,\n\n Petitioner - Appellant,\n v. No. 17-3220\n UNITED STATES OF AMERICA,\n\n Respondent - Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF KANSAS\n (D.C. NO. 5:17-CV-03032-EFM)\n\n\nMatthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for\nPetitioner-Appellant.\n\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United\nStates Attorney, District of Kansas, and James A. Brown, Assistant United States\nAttorney, Chief, Appellant Division, with him on the briefs), Office of the United\nStates Attorney, Topeka, Kansas, for Respondent-Appellee.\n\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Lina Thoung illegally entered the United States in 2002. After the\n\ngovernment learned of her illegal status, she jointly stipulated to a removal order\n\fafter pleading guilty in district court to document fraud. But deportation\n\nproceedings never occurred. Five years later, she filed a writ of habeas corpus\n\nwith the district court alleging the court had lacked subject-matter jurisdiction to\n\nenter its order of removal. The district court reaffirmed its jurisdiction to order\n\nremoval and rejected Thoung’s habeas petition.\n\n We hold that, because of the REAL ID Act’s limitations on judicial review,\n\nthe district court lacked jurisdiction to entertain Thoung’s habeas petition\n\nchallenging the prior removal order.\n\n I. Background\n\n Thoung emigrated from Cambodia to the United States in 2002 using a\n\nfraudulently obtained visa in the name and birthdate of another person. In 2007,\n\nshe obtained U.S. citizenship and affirmed she had never provided false\n\ninformation to any government official while applying for any immigration\n\nbenefit.\n\n Her fraud was discovered in 2012. She subsequently pleaded guilty to\n\nmisusing a visa, permit, and other documents to obtain citizenship, in violation of\n\n18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to\n\ndenaturalization under 8 U.S.C. § 1451(e) and removal from the United States.\n\nRelying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.\n\nImmigration authorities, unable to deport Thoung back to Cambodia, eventually\n\n\n\n -2-\n\freleased her subject to an Order of Supervision. Under this order, Thoung could\n\nbe arrested and deported at any time.\n\n In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.\n\n§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter\n\nthe judicial removal order requested under the plea agreement. Neither the\n\ngovernment nor the district court considered the potential applicability of the\n\nREAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on\n\njudicial review. On the merits, the district court reaffirmed its jurisdiction to\n\nenter Thoung’s removal order. Thoung appealed the district court’s assertion of\n\nsubject-matter jurisdiction to enter the 2013 removal order.\n\n II. Analysis\n\n We first consider whether the district court had subject-matter jurisdiction\n\nto hear Thoung’s habeas petition, a question of statutory interpretation.\n\nGonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude\n\nthe REAL ID Act prevents the district court from exercising habeas jurisdiction to\n\nhear Thoung’s petition.\n\n A. The REAL ID Act’s Limitations on Judicial Review\n\n Generally, “[w]rits of habeas corpus may be granted by . . . the district\n\ncourts and any circuit judge within their respective jurisdictions.” 28 U.S.C.\n\n§ 2241(a). A person must be “in custody” to seek the habeas writ, id.\n\n\n\n -3-\n\f§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.\n\nSee Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).\n\n Nevertheless, the REAL ID Act imposes substantial limitations on judicial\n\nreview, including habeas review, of final orders of removal. Removal orders may\n\nbe challenged only by way of a petition for review filed in the court of appeals.\n\nAccording to § 1252(a)(5), “petitions for review” filed with the courts of appeal\n\nare the “sole and exclusive means for judicial review from an order of removal.”\n\nAnd the statute specifically excludes “habeas corpus review pursuant to sections\n\n1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive\n\nmeans for judicial review from an order of removal” is outlined in § 1252(b),\n\nwhich requires that a petition for review must be filed within thirty days of a final\n\norder of removal. Id. § 1252(b)(1). “That deadline is mandatory and\n\njurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d\n\n\n 1\n In full, section 1252(a)(5) provides:\n\n Notwithstanding any other provision of law (statutory or nonstatutory),\n including section 2241 of Title 28, or any other habeas corpus provision,\n and sections 1361 and 1651 of such title, a petition for review filed with an\n appropriate court of appeals in accordance with this section shall be the\n sole and exclusive means for judicial review from an order of removal\n entered or issued under any provision of this chapter, except as provided in\n subsection (e). For purposes of this chapter, in every provision that limits\n or eliminates judicial review or jurisdiction to review, the terms “judicial\n review” and “jurisdiction to review” include habeas corpus review pursuant\n to section 2241 of Title 28, or any other habeas corpus provision, sections\n 1361 and 1651 of such title, and review pursuant to any other provision of\n law (statutory or nonstatutory).\n\n -4-\n\fat 1271. Thus, although the REAL ID Act permits “review of constitutional\n\nclaims or questions of law raised upon a petition for review,” 8 U.S.C.\n\n§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal\n\norder once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at\n\n1271. By the time Thoung filed her habeas petition with the district court, the\n\ndeadline for properly filing a petition for review in accordance with the REAL ID\n\nAct had long expired.\n\n In Gonzales-Alarcon, we emphasized that “Congress clearly intended to\n\nfunnel all challenges to removal through the petition for review process.” Id. at\n\n1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas\n\nchallenge to an order of removal is barred regardless of whether the petitioner is\n\nan alien or claims citizenship.” Id. at 1274.\n\n Our circuit is consistent with others in recognizing the REAL ID Act’s\n\nlimitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th\n\nCir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the\n\nhabeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for\n\nreview shall be the sole and exclusive means for judicial review of an order of\n\nremoval entered or issued under any provision of [the Immigration and\n\nNationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)\n\n(REAL ID Act “unequivocally eliminates habeas corpus review of orders of\n\nremoval.”).\n\n -5-\n\f Because Thoung’s habeas petition ultimately seeks to invalidate the district\n\ncourt’s removal order, we conclude she is seeking “judicial review of an order of\n\nremoval” in a manner prohibited by § 1252(a)(5).\n\n B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s\nHabeas Petition\n\n Nevertheless, Thoung raises three arguments to support her claim that the\n\ndistrict court had proper jurisdiction to entertain her habeas petition.\n\n All three ultimately fail.\n\n 1. Orders Arising from Criminal Proceedings\n\n First, Thoung contends Congress did not intend to bar habeas review of\n\njudicial removal orders because she claims the Act omits orders arising from\n\ncriminal proceedings that result in removability. The criminal offenses which are\n\ngrounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS\n\nv. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas\n\nreview did “not bar jurisdiction over removal orders not subject to judicial review\n\nunder § 1252(a)(1)—including orders against aliens who are removable by reason\n\nof having committed one or more criminal offenses.” Id. at 313.\n\n But Thoung’s interpretation misreads the REAL ID Act, which was adopted\n\nin 2005 to render the removal-challenge process consistent with St. Cyr. See 2\n\nRandy Hertz & James S. Liebman, Federal Habeas Corpus Practice and\n\nProcedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests\n\n\n -6-\n\fdistrict courts of jurisdiction over habeas challenges to removal orders, including\n\nthose arising from criminal offenses, and funnels all such challenges to the\n\n“appropriate court of appeals” as the “sole and exclusive means for judicial\n\nreview of an order of removal entered or issued under any provision of this\n\nchapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2\n\n If every judicial order of removal were subject to appeal for lack of\n\nsubject-matter jurisdiction, the statutory framework Congress established in\n\n§ 1252(b) could be entirely thwarted and a multiplicity of claims (including\n\nhabeas claims) would thrive outside the petition-for-review process and long after\n\nits timeliness requirements have expired.\n\n Because the district court’s judicial order of removal was entered under\n\n§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s\n\nsole means of challenging her judicial removal order—a means that is now time-\n\nbarred. To comply with § 1252(a)(5), Thoung would have had to petition the\n\ncourt of appeals within thirty days of the district court’s entry of the final removal\n\norder in 2013. Despite having the opportunity to do so, she did not.\n\n 2. Suspension Clause\n\n\n\n\n 2\n Even if, arguendo, a judicial order of removal must, as a procedural\nprerequisite, first be based on a criminal ground of removability described in\n8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such\norders in § 1252(a)(2)(C).\n\n -7-\n\f Second, Thoung argues that even if Congress did intend to bar habeas\n\nreview of judicial orders of removal, it has left no meaningful alternative form of\n\nreview and therefore has unconstitutionally suspended the writ of habeas corpus.\n\nThe Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall\n\nnot be suspended, unless when in Cases of Rebellion or Invasion the public Safety\n\nmay require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning\n\nthat “a serious Suspension Clause issue would be presented if [a statute has]\n\nwithdrawn that power from federal judges and provided no adequate substitute for\n\nits exercise.” 533 U.S. at 304–05.\n\n But St. Cyr goes on to observe “that Congress could, without raising any\n\nconstitutional questions, provide an adequate substitute through the court of\n\nappeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is\n\nneither inadequate nor ineffective to test the legality of a person’s detention’ does\n\nnot violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,\n\n381 (1977) (alteration omitted)). This is, of course, precisely the sort of process\n\nthat the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3\n\n\n 3\n Although the text of the Act is clear, the House-Senate Conference\nReport on the REAL ID Act further explained:\n\n Significantly, this section [§ 1252] does not eliminate judicial review, but\n simply restores such review to its former settled forum prior to 1996.\n Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review\n of criminal aliens’ removal orders, [this section] would give every alien one\n (continued...)\n\n -8-\n\f Thoung bears the burden of demonstrating the inadequacy of the REAL ID\n\nAct’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d\n\n976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in\n\nthe context of judicial orders of removal, that the REAL ID Act’s petition for\n\nreview process is an inadequate or ineffective substitute. It is not clear that, had\n\nThoung followed the § 1252(b) review process, she would have been prevented\n\nfrom doing so for jurisdictional reasons. 4\n\n Thus, in the absence of persuasive argument to the contrary, we assume the\n\nREAL ID Act’s petition for review process does not offend the Suspension Clause\n\nwith respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d\n\n\n 3\n (...continued)\n day in the court of appeals, satisfying constitutional concerns.\n\n151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.\nCyr, 533 U.S. at 314 n.38).\n 4\n Thoung points to our unpublished disposition in Musau v. Carlson, 499\nF. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine\nour conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court\nsimply determined that the district court’s dismissal of Musau’s habeas petition\nwas “premature” and remanded the question for further consideration. Id. at 841.\n The dissent in the instant case suggests this court would have lacked\njurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID\nAct’s petition-for-review process. But it does not necessarily follow that such a\nresult would implicate the Suspension Clause. The authority on which the dissent\nrelies suggests this court still could have vacated an ultra vires removal order and\nremanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,\n898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.\n2007). Thus, a presumably adequate forum would have existed to test the legality\nof Thoung’s detention.\n\n -9-\n\fat 1268 (assuming “the petition for review process is an adequate substitute for\n\nhabeas such that the REAL ID Act’s jurisdiction-stripping provisions do not\n\noffend the Suspension Clause”).\n\n 3. Conflict with Federal Rules\n\n Finally, Thoung asserts that our interpretation of the REAL ID Act results\n\nin unintended consequences. Because the Act’s review process requires a petition\n\nto be filed with the court of appeals within thirty days of an order of removal,\n\nThoung argues that it conflicts with the federal rules of procedure concerning\n\ncriminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s\n\nnotice of appeal from a criminal case to be filed in the district court within\n\nfourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the\n\ncourt of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed\n\nwithin thirty days after a final order of removal). Assuming that Rule 4(b)(1) of\n\nthe Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s\n\nsituation, the incongruity should not be surprising. REAL ID’s petition for\n\nreview process is a substitute for the statutory writ of habeas corpus, which is\n\nalso subject to timeliness limitations that sometimes depart from and supersede\n\nthe otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,\n\nunlike Rule 4(b)(1), which does “not have statutory grounding” and is non-\n\njurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),\n\n\n\n -10-\n\fthe REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”\n\nGonzales-Alarcon, 884 F.3d at 1271.\n\n Thoung also asserts that barring habeas review would strip district courts of\n\nthe power to reconsider their own orders, while immigration judges possess that\n\nauthority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen\n\nand reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen\n\nand reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the\n\nonly case Thoung cites for the proposition that district courts possess inherent\n\nauthority to reconsider their own removal orders refers to the power to reconsider\n\ninterlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d\n\n1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent\n\nauthority to reopen and reconsider its final order of removal under the\n\ncircumstances presented here, it certainly could not do so “by habeas corpus\n\nunder section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.\n\n§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s\n\nsuggestion that we read “judicial review” under § 1252(a) as referring only to\n\nappellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”\n\nmeanings of “judicial review” and “habeas corpus”), is foreclosed by the text of\n\nthe Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every\n\nprovision that limits or eliminates judicial review or jurisdiction to review, the\n\n\n\n -11-\n\fterms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus\n\nreview.”). 5\n\n Because none of Thoung’s arguments ultimately persuade us that our\n\ninterpretation of the REAL ID Act is incorrect, we hold that the statute’s\n\njurisdictional limitation on judicial review of removal orders prevents Thoung\n\nfrom petitioning the district court for the writ of habeas corpus.\n\n III. Conclusion\n\n Because the district court lacked subject-matter jurisdiction and thus lacked\n\npower to enter its October 2017 Memorandum and Order, that judgment must be\n\nvacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\n\n1096, 1128 (10th Cir. 2010).\n\n We therefore REMAND to the district court with directions to VACATE its\n\nOctober 2017 order and to dismiss Thoung’s petition without prejudice for lack of\n\n\n\n\n 5\n Similarly, we do not find persuasive Thoung’s argument that the venue\nsection of § 1252(b)(2) is limited to orders entered by immigration judges. That\nprovision may encompass district court judges, as evidenced by\n§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may\nbe appealed . . . to the court of appeals for the circuit in which the district court is\nlocated” and that “such appeal shall be considered consistent with the\nrequirements described in section 1252 of this title.”\n Furthermore, more specific language in related immigration statutes may\ntrump the general language of § 1252(b)(2) regarding immigration judges when\nsuch language operates notwithstanding any other provision. See Osuna-\nGuiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such\n“notwithstanding any other provision” language is present in § 1228(c)(1).\n\n -12-\n\fjurisdiction. We express no view as to the merits and leave the district court’s\n\n2013 removal order undisturbed.\n\n\n\n\n -13-\n\fThoung v. United States, No. 17-3220", "author": "TYMKOVICH, Chief Judge"}, {"type": "dissent", "author": "PHILLIPS", "text": "PHILLIPS, J., dissenting.\n\n In September 2002, Lina Thoung entered the United States on a visitor visa\n\nbelonging to another Cambodian woman, Sokheang Leng. The next year, Thoung\n\nsucceeded in adjusting her immigration status to lawful permanent resident, which\n\nallowed her to stay in the United States indefinitely. Then, in March 2007, she applied for\n\ncitizenship. In the form she submitted to the Department of Homeland Security, she\n\naffirmed that she had never provided false information to the government in any\n\napplication for a government benefit. And six months later, in September, she became a\n\nnaturalized U.S. citizen. That day, she also submitted a name-change request so that her\n\ncertificate of naturalization would be issued in a new name: Lina Sokheang Lanham.\n\n In 2012, Thoung obtained a passport, but her new identity began to unravel. The\n\nState Department opened a passport investigation, and agents discovered her years-long\n\nimmigration fraud. In July 2012, when the agents detained Thoung, she was carrying a\n\nKansas driver’s license and a Social Security card, both built on her fraudulent visa\n\nidentity. The Kansas U.S. Attorney charged her with eight counts related to her\n\nfraudulently obtaining government documents. By December 2012, the parties had\n\nreached a plea agreement. Thoung pleaded guilty to one count of document fraud, for\n\nviolating 18 U.S.C. § 1546(a), and the government dismissed the remaining counts. In the\n\nplea agreement, Thoung admitted (1) that she had used a fraudulent visa to enter the\n\ncountry; (2) that while here, she had parlayed the fraudulent visa (and the false\n\ninformation it contained) into a naturalization certificate and other government-issued\n\fdocuments; and (3) that she had knowingly committed these frauds. She also stipulated\n\nthat the government could revoke her U.S. citizenship under 8 U.S.C. § 1451(e), and she\n\nagreed “to enter into a Joint Stipulation for Judicial Removal” under 8 U.S.C. §\n\n1228(c)(5).\n\n On January 23, 2017, the district court issued the requested judicial removal order,\n\nunder 8 U.S.C. § 1228(c)(5). Appellant’s App. at 47. The court ordered Thoung removed\n\nto Cambodia. Immigration and Customs Enforcement immediately took Thoung into\n\ncustody. After six months passed without Thoung’s being deported to Cambodia,\n\nimmigration authorities released her subject to an Order of Supervision. Under this order,\n\nThoung has remained in the United States, subject to arrest and deportation.1\n\n In February 2017, now represented by an immigration attorney, Thoung petitioned\n\nfor a writ of habeas corpus before the same district court that had handled her criminal\n\nproceedings. This time, she argued that the sentencing court had lacked jurisdiction to\n\nenter the order of removal under § 1228(c)(5) because she was not removable under\n\n§ 1227(a)(2)(A).2 The district court denied Thoung’s habeas petition, rejecting Thoung’s\n\nargument that it had lacked jurisdiction to enter the 2013 removal order. Thoung v.\n\n\n\n\n 1\n Thoung has since married a U.S. citizen. Absent the removal order, she would be\neligible to adjust her immigration status on that basis.\n 2\n In its Order of Removal filed on May 13, 2013, the district court ordered Thoung\nremoved from this country for her § 1546(a) conviction, which, the district court ruled, fit\nunder § 1227(a)(1)(A) and § 1227(a)(3)(B).\n\n 2\n\fUnited States, Case No. 17-3032-EFM, 2017 WL 4536421 (D. Kan. Oct. 11, 2017).\n\nThoung appealed.\n\n Before oral argument, we asked for supplemental briefing on whether the district\n\ncourt had jurisdiction to consider Thoung’s petition, directing the parties’ attention to 8\n\nU.S.C. § 1252(a)(5).3 Relying on that statute, the majority now concludes that the district\n\ncourt lacked subject-matter jurisdiction to consider Thoung’s habeas petition. Maj. op. at\n\n5–7. In doing so, it relies on these words from § 1252(a)(5): “[A] petition for review filed\n\nwith an appropriate court of appeals in accordance with this section shall be the sole and\n\nexclusive means for judicial review of an order of removal . . . .” Maj. op. at 4 (quoting\n\n8 U.S.C. § 1252(a)(5)). In turn, the majority notes that § 1252(b)(1) requires that such a\n\npetition be filed not later than 30 days after the date of the final order of removal. See id.\n\nat 5. Because Thoung never filed a petition for review, the majority holds that she has\n\nwaived her right to appellate review. Id.\n\n In my view, the majority’s statutory interpretation is incomplete. More fully read,\n\n§ 1252(a)(5) provides that “a petition for review filed with an appropriate court of\n\nappeals in accordance with this section shall be the sole and exclusive means for judicial\n\nreview of an order of removal entered or issued under any provision of this chapter . . . .”\n\n(emphasis added). With the italicized language restored, § 1252(a)(5) takes on a different\n\nmeaning. Now it requires more than a district-court document entitled “Order of\n\n\n\n 3\n Congress restricted the scope of judicial review in immigration proceedings in\nthe REAL ID Act. Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302–23; 8 U.S.C. § 1252.\n\n 3\n\fRemoval.” Instead, it requires a hard look at the statutory legitimacy of an Order of\n\nRemoval. And that takes me to a question the majority’s opinion doesn’t reach: Did\n\n§ 1228(c)(5) authorize the district court to enter Thoung’s Order of Removal?\n\n To answer that question, it helps to step back to Thoung’s document-fraud\n\nprosecution. Though Thoung could stipulate to an order of removal, she could not\n\nstipulate to expand the district court’s subject-matter jurisdiction. Section 1228(c)(5)’s\n\nlimits confined the parties and the district court.\n\n This takes us to the language of § 1228(c)(5)—the statutory section the district\n\ncourt relied on to do just that. This subsection reads as follows:\n\n (5) Stipulated judicial order of removal\n\n The United States Attorney, with the concurrence of the Commissioner [of\n Immigration and Naturalization], may, pursuant to Federal Rule of Criminal\n Procedure 11, enter into a plea agreement which calls for the alien, who is\n deportable under this chapter, to waive the right to notice and a hearing under\n this section, and stipulate to the entry of a judicial order of removal from the\n United States as a condition of the plea agreement or as a condition of\n probation or supervised release, or both. The United States district court, in\n both felony and misdemeanor cases, and a United States magistrate judge in\n misdemeanor cases, may accept such a stipulation and shall have jurisdiction\n to enter a judicial order of removal pursuant to the terms of such stipulation.\n\n§ 1228(c)(5).\n\n To understand this subsection, I think a good starting place is to ask what\n\njurisdictional requirements it puts on judicial removal orders. For me, it helps to isolate\n\nwhat’s required. First, the government and Thoung must enter a plea agreement under\n\nFed. R. Crim. P. 11 (satisfied). Second, Thoung must be deportable under this chapter\n\n[Chapter 12, Immigration and Nationality] (satisfied). Third, the plea agreement must call\n\n\n 4\n\ffor Thoung to “waive the right to notice and a hearing under this section” [§ 1228\n\n“Expedited removal of aliens convicted of committing aggravated felonies”]\n\n(unsatisfied). Thoung’s plea agreement says nothing about her waiving notice and\n\nhearing rights under § 1228. And for good reason. Only noncitizens convicted of crimes\n\nmore serious than Thoung’s (those falling under § 1227(a)(2)(A)) even can stipulate to\n\njudicial removal. This is evident when we apply “under this section,” just as § 1228(c)(5)\n\ntells us to do.\n\n Who can waive rights to notice and hearing “under this section [§ 1228]”? Let’s\n\nrun through the whole section, starting with § 1228(a). That subsection ties “the\n\navailability of special removal proceedings” at certain correctional facilities to “aliens\n\nconvicted of any criminal offense covered in section 1227(a)(2)(A)(iii), (B), (C), or (D)\n\nof this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which\n\nboth predicate offenses are, without regard to the date of their commission, otherwise\n\ncovered by section 1227(a)(2)(A)(i) of this title.” Next, let’s turn to § 1228(b). That\n\nsubsection speaks to “the deportability of such alien under section 1227(a)(2)(A)(iii) of\n\nthis title (relating to conviction of an aggravated felony).” Finally, and most importantly\n\nsince the operative § 1228(c)(5) is nestled within it, let’s turn to § 1228(c). Here, we see\n\nthat 1228(c)(1)–(3) speaks to defendant noncitizens with criminal convictions covered by\n\n§ 1227(a)(2)(A).\n\n Now let’s remember how the district court correctly classified Thoung’s\n\nconviction—under § 1227(a)(1)(A) and § 1227(a)(3)(B). From this, I believe that Thoung\n\nnever had a right to notice or hearing “under this section [§ 1228],” so she obviously\n\n 5\n\fnever could have waived it. Had Thoung tried to waive section 1228 rights to notice and\n\nhearing, the waiver would be meaningless. Simply put, Congress has not authorized\n\nstipulated judicial removal orders for noncitizens convicted of her crime.\n\n The parenthetical “deportable under this chapter” does not change this. That\n\nlanguage merely sets a threshold condition, but it does not authorize stipulated removal\n\norders against all deportable persons. After all, not all deportable persons are even\n\nconvicted criminals,4 yet § 1228(c)(5) authorizes removal orders only when stipulated\n\nbetween the parties in plea agreements of noncitizens convicted of § 1227(a)(2)(A)\n\ncrimes.\n\n The government contends that Thoung is attempting to “graft[] the requirements\n\nof § 1228(c)(2)(B) onto § 1228(c)(5).” Appellee’s Br. at 14. But the government’s\n\nposition has wavered. The Department of Justice’s Criminal Resource Manual5 states that\n\n“stipulated judicial deportation should be sought only if the offense to which the alien\n\ndefendant will plead guilty causes him to be deportable under 8 U.S.C.\n\n§ 1251(a)(2)(A).”6 Thoung’s App. at 63. I agree that resource manuals are not law and\n\n\n\n 4\n Many noncitizens become deportable without a criminal conviction—for\ninstance, the noncitizen who overstays his work visa. See § 1227(a)(1)(C)(i).\n 5\n U.S. Dep’t of Justice, U.S. Attorneys’ Manual, tit. 9, Criminal Resource Manual\n§ 1929, available at https://www.justice.gov/jm/criminal-resource-manual-1929-\nstipulated-judicial-deportation.\n 6\n 8 U.S.C. § 1251(a)(2)(A) has since been moved, with some minor changes, to\n§ 1227(a)(2)(A). Compare 8 U.S.C. § 1252(a)(2)(A) (1994) (listing “general crimes”),\nwith 8 U.S.C. § 1227(a)(2)(A) (listing “general crimes”).\n\n 6\n\fthat § 1228(c)(5) was enacted after this manual was written. But the same basic scheme\n\nwas in place when the government interpreted as it did in its manual. The government has\n\nnot chosen to revise the manual since the enactment of § 1228(c)(5).7\n\n Even an ambiguity in § 1228(c)(5) on these points likely would not change the\n\nresult. After all, we resolve statutory ambiguities in the noncitizen’s favor “because\n\ndeportation is a drastic measure and at times the equivalent of banishment o[r] exile.”\n\nFong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); see also United States v.\n\nPhommachanh, 91 F.3d 1383, 1385 (10th Cir. 1996) (“In construing § 3583(d), a\n\ndeportation statute, we are mindful of ‘the longstanding principle of construing any\n\nlingering ambiguities in deportation statutes in favor of the alien.’”) (quoting INS v.\n\nCardoza-Fonseca, 480 U.S. 421, 449 (1987)).\n\n Even if the government could surmount these problems, another serious problem\n\nwould await it—the canon of constitutional avoidance. See INS v. St. Cyr, 533 U.S. 289,\n\n299–300 (2001) (stating that “if an otherwise acceptable construction of a statute would\n\nraise serious constitutional problems, and where an alternative interpretation of the statute\n\nis ‘fairly possible,’ . . . we are obligated to construe the statute to avoid such problems.”).\n\nBy interpreting § 1252(a)(5) as it does, the majority risks a Suspension Clause violation.\n\n\n 7\n The government notes that this section is currently labeled “Outdated-pending\nrevision.” Government’s Resp. Br. at 17. It appears that the government added this label\nat some point between March and May of 2017, well after Thoung filed her habeas\npetition. Compare\nhttps://web.archive.org/web/20170328183729/https://www.justice.gov/usam/criminal-\nresource-manual-1929-stipulated-judicial-deportation with\nhttps://web.archive.org/web/20170501014453/https://www.justice.gov/usam/criminal-\nresource-manual-1929-stipulated-judicial-deportation.\n 7\n\fBarring Thoung from pursuing habeas relief, the majority leaves her with a bare right to\n\nfile a petition for review within thirty days of the issuance of her removal order. Maj. op.\n\nat 7.\n\n But if the district court did exceed its jurisdiction under § 1228(c)(5) by entering\n\nthe removal order, then that would cast serious doubt on whether the order is a “final\n\norder of removal” under § 1252(a). If the removal order were ultra vires, we would have\n\nlacked jurisdiction to consider a timely petition for review from Thoung.8 Cf. Mejia\n\nGalindo v. Sessions, 897 F.3d 894, 898–99 (7th Cir. 2018) (reasoning that because the\n\nBoard of Immigration Appeals lacked authority to enter a final removal order, the order\n\nwas ultra vires and the court had no jurisdiction to address the petition’s merits); Rhodes-\n\nBradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir. 2007) (same).\n\n If that is so, the right to petition for review could not adequately substitute for a\n\nhabeas application. Hence my Suspension Clause concerns. See U.S. Const. art I, § 9,\n\ncl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in\n\nCases of Rebellion or Invasion the public Safety may require it.”); Anderson v. Holder,\n\n673 F.3d 1089, 1095 (9th Cir. 2012) (“Because the REAL ID Act of 2005 eliminated\n\nhabeas review of removal orders, leaving petitions for review as the exclusive means to\n\n\n\n 8\n Nor could § 1252(a)(2)(D) have acted as a safety valve for Thoung’s claim. That\nprovision states that nothing in § 1252 “which limits or eliminates judicial review, shall\nbe construed as precluding review of constitutional claims or questions of law raised\nupon a petition of review filed with an appropriate court of appeals in accordance with\nthis section.” Id. (emphasis added). But to be “in accordance with this section,” a petition\nfor review must challenge a “final order of removal.” 8 U.S.C. § 1252(a)(1), and an ultra\nvires order is “not a final order of removal.” Mejia Galindo, 897 F.3d at 898.\n 8\n\fchallenge such orders, the absence of any § 1252 jurisdiction over ultra vires removal\n\norders threatens to create a serious constitutional problem.”). At the very least, it is not\n\n“clear that the question of law could [have been] answered in another judicial forum,”\n\nwhich “strongly counsels against adopting a construction that would raise serious\n\nconstitutional questions.” See St. Cyr, 533 U.S. at 314.\n\n Here, a caveat. Thoung challenges the district court’s jurisdiction to issue the\n\nstipulated removal order. What she does not do is admit jurisdiction but then contest how\n\nthe district court exercised its jurisdiction. See Latu v. Ashcroft, 375 F.3d 1012, 1020\n\n(10th Cir. 2004) (“An official act does not become ultra vires if the officer was statutorily\n\nempowered to act but may have acted erroneously.”). She contends that the removal\n\norder was void from its inception. See Kumarasamy v. Attorney Gen. of U.S., 453 F.3d\n\n169, 172 (3d Cir. 2006) (upholding the district court’s jurisdiction to review a habeas\n\npetition, because instead of arguing that the removal order didn’t “lawfully authorize his\n\nremoval,” the petitioner argued that no valid removal order existed at all—that he was not\n\n“seeking review of a removal order”).\n\n In contrast, the petitioner in Gonzalez-Alarcon v. Macias challenged the district\n\ncourt’s underlying decision that he was not a U.S. citizen. There, we held that\n\n§ 1252(a)(5) barred a detainee in ICE custody from seeking to invalidate his pending\n\nremoval order based on his citizenship.9 884 F.3d 1266, 1275 (10th Cir. 2018). Unlike the\n\n\n 9\n Our decision in Gonzalez-Alarcon runs counter to the Ninth Circuit’s decision in\nAnderson, which recognized that “the plain language of § 1252(b)(5) not only permits but\nrequires [circuit courts] to evaluate a claim to United States nationality upon a petition\nfor review, even where our jurisdiction would otherwise be limited.” 673 F.3d at 1096.\n 9\n\fdistrict court in Thoung’s case, the immigration judge in Gonzalez-Alarcon had statutory\n\nauthority to rule on the petitioner’s citizenship claim, and even to rule incorrectly. See\n\nLatu, 375 F.3d at 1020. The same logic applies when a noncitizen challenges an\n\nimmigration judge’s legal conclusion that his criminal conviction qualifies as a statutory\n\nbasis for removability, a conclusion that the immigration judge is authorized to make.\n\nSee, e.g., Hamilton v. Holder, 584 F.3d 1284, 1288 (10th Cir. 2009) (holding that\n\nimmigration judges are authorized to examine PSRs to determine whether a crime\n\nqualifies as an “aggravated felony”) (citing Nijhawan v. Holder, 557 U.S. 29, 32 (2009)).\n\nAlthough district courts can find facts and reach legal conclusions, they cannot assume\n\njurisdiction over removal proceedings absent clear statutory authority.\n\n For these reasons, I would reverse the district court, remand with instructions that\n\nthe district court vacate the removal order, and require that Thoung’s immigration issues\n\nbe decided in the proper forum. I respectfully dissent.\n\n\n\n\nBut Gonzalez-Alarcon acknowledged that the petitioner could file a motion asking the\nimmigration judge to reopen the removal proceedings, alleviating any Suspension Clause\nconcerns, at least “at the present time.” See 884 F.3d at 1275. And as one panelist noted,\nthe petitioner had “an alternative means for relief”—he could have, at any time, “file[d] a\nForm N–600,” which, if granted, would have made him “categorically ineligible for\nremoval.” Id. at 1281–82 (Tymkovich, C.J., concurring).\n\n 10"}]}	TYMKOVICH	HOLMES	PHILLIPS	1		{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4583373/	Published	1	1	0	0	1	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 22, 2019\n PUBLISH Elisabeth A. Shumaker\n Clerk of Court\n UNITED STATES COURT OF APPEALS\n\n TENTH CIRCUIT\n\n\n\n LINA THOUNG,\n\n Petitioner - Appellant,\n v. No. 17-3220\n UNITED STATES OF AMERICA,\n\n Respondent - Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF KANSAS\n (D.C. NO. 5:17-CV-03032-EFM)\n\n\nMatthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for\nPetitioner-Appellant.\n\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United\nStates Attorney, District of Kansas, and James A. Brown, Assistant United States\nAttorney, Chief, Appellant Division, with him on the briefs), Office of the United\nStates Attorney, Topeka, Kansas, for Respondent-Appellee.\n\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Lina Thoung illegally entered the United States in 2002. After the\n\ngovernment learned of her illegal status, she jointly stipulated to a removal order\n\fafter pleading guilty in district court to document fraud. But deportation\n\nproceedings never occurred. Five years later, she filed a writ of habeas corpus\n\nwith the district court alleging the court had lacked subject-matter jurisdiction to\n\nenter its order of removal. The district court reaffirmed its jurisdiction to order\n\nremoval and rejected Thoung’s habeas petition.\n\n We hold that, because of the REAL ID Act’s limitations on judicial review,\n\nthe district court lacked jurisdiction to entertain Thoung’s habeas petition\n\nchallenging the prior removal order.\n\n I. Background\n\n Thoung emigrated from Cambodia to the United States in 2002 using a\n\nfraudulently obtained visa in the name and birthdate of another person. In 2007,\n\nshe obtained U.S. citizenship and affirmed she had never provided false\n\ninformation to any government official while applying for any immigration\n\nbenefit.\n\n Her fraud was discovered in 2012. She subsequently pleaded guilty to\n\nmisusing a visa, permit, and other documents to obtain citizenship, in violation of\n\n18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to\n\ndenaturalization under 8 U.S.C. § 1451(e) and removal from the United States.\n\nRelying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.\n\nImmigration authorities, unable to deport Thoung back to Cambodia, eventually\n\n\n\n -2-\n\freleased her subject to an Order of Supervision. Under this order, Thoung could\n\nbe arrested and deported at any time.\n\n In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.\n\n§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter\n\nthe judicial removal order requested under the plea agreement. Neither the\n\ngovernment nor the district court considered the potential applicability of the\n\nREAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on\n\njudicial review. On the merits, the district court reaffirmed its jurisdiction to\n\nenter Thoung’s removal order. Thoung appealed the district court’s assertion of\n\nsubject-matter jurisdiction to enter the 2013 removal order.\n\n II. Analysis\n\n We first consider whether the district court had subject-matter jurisdiction\n\nto hear Thoung’s habeas petition, a question of statutory interpretation.\n\nGonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude\n\nthe REAL ID Act prevents the district court from exercising habeas jurisdiction to\n\nhear Thoung’s petition.\n\n A. The REAL ID Act’s Limitations on Judicial Review\n\n Generally, “[w]rits of habeas corpus may be granted by . . . the district\n\ncourts and any circuit judge within their respective jurisdictions.” 28 U.S.C.\n\n§ 2241(a). A person must be “in custody” to seek the habeas writ, id.\n\n\n\n -3-\n\f§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.\n\nSee Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).\n\n Nevertheless, the REAL ID Act imposes substantial limitations on judicial\n\nreview, including habeas review, of final orders of removal. Removal orders may\n\nbe challenged only by way of a petition for review filed in the court of appeals.\n\nAccording to § 1252(a)(5), “petitions for review” filed with the courts of appeal\n\nare the “sole and exclusive means for judicial review from an order of removal.”\n\nAnd the statute specifically excludes “habeas corpus review pursuant to sections\n\n1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive\n\nmeans for judicial review from an order of removal” is outlined in § 1252(b),\n\nwhich requires that a petition for review must be filed within thirty days of a final\n\norder of removal. Id. § 1252(b)(1). “That deadline is mandatory and\n\njurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d\n\n\n 1\n In full, section 1252(a)(5) provides:\n\n Notwithstanding any other provision of law (statutory or nonstatutory),\n including section 2241 of Title 28, or any other habeas corpus provision,\n and sections 1361 and 1651 of such title, a petition for review filed with an\n appropriate court of appeals in accordance with this section shall be the\n sole and exclusive means for judicial review from an order of removal\n entered or issued under any provision of this chapter, except as provided in\n subsection (e). For purposes of this chapter, in every provision that limits\n or eliminates judicial review or jurisdiction to review, the terms “judicial\n review” and “jurisdiction to review” include habeas corpus review pursuant\n to section 2241 of Title 28, or any other habeas corpus provision, sections\n 1361 and 1651 of such title, and review pursuant to any other provision of\n law (statutory or nonstatutory).\n\n -4-\n\fat 1271. Thus, although the REAL ID Act permits “review of constitutional\n\nclaims or questions of law raised upon a petition for review,” 8 U.S.C.\n\n§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal\n\norder once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at\n\n1271. By the time Thoung filed her habeas petition with the district court, the\n\ndeadline for properly filing a petition for review in accordance with the REAL ID\n\nAct had long expired.\n\n In Gonzales-Alarcon, we emphasized that “Congress clearly intended to\n\nfunnel all challenges to removal through the petition for review process.” Id. at\n\n1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas\n\nchallenge to an order of removal is barred regardless of whether the petitioner is\n\nan alien or claims citizenship.” Id. at 1274.\n\n Our circuit is consistent with others in recognizing the REAL ID Act’s\n\nlimitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th\n\nCir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the\n\nhabeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for\n\nreview shall be the sole and exclusive means for judicial review of an order of\n\nremoval entered or issued under any provision of [the Immigration and\n\nNationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)\n\n(REAL ID Act “unequivocally eliminates habeas corpus review of orders of\n\nremoval.”).\n\n -5-\n\f Because Thoung’s habeas petition ultimately seeks to invalidate the district\n\ncourt’s removal order, we conclude she is seeking “judicial review of an order of\n\nremoval” in a manner prohibited by § 1252(a)(5).\n\n B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s\nHabeas Petition\n\n Nevertheless, Thoung raises three arguments to support her claim that the\n\ndistrict court had proper jurisdiction to entertain her habeas petition.\n\n All three ultimately fail.\n\n 1. Orders Arising from Criminal Proceedings\n\n First, Thoung contends Congress did not intend to bar habeas review of\n\njudicial removal orders because she claims the Act omits orders arising from\n\ncriminal proceedings that result in removability. The criminal offenses which are\n\ngrounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS\n\nv. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas\n\nreview did “not bar jurisdiction over removal orders not subject to judicial review\n\nunder § 1252(a)(1)—including orders against aliens who are removable by reason\n\nof having committed one or more criminal offenses.” Id. at 313.\n\n But Thoung’s interpretation misreads the REAL ID Act, which was adopted\n\nin 2005 to render the removal-challenge process consistent with St. Cyr. See 2\n\nRandy Hertz & James S. Liebman, Federal Habeas Corpus Practice and\n\nProcedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests\n\n\n -6-\n\fdistrict courts of jurisdiction over habeas challenges to removal orders, including\n\nthose arising from criminal offenses, and funnels all such challenges to the\n\n“appropriate court of appeals” as the “sole and exclusive means for judicial\n\nreview of an order of removal entered or issued under any provision of this\n\nchapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2\n\n If every judicial order of removal were subject to appeal for lack of\n\nsubject-matter jurisdiction, the statutory framework Congress established in\n\n§ 1252(b) could be entirely thwarted and a multiplicity of claims (including\n\nhabeas claims) would thrive outside the petition-for-review process and long after\n\nits timeliness requirements have expired.\n\n Because the district court’s judicial order of removal was entered under\n\n§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s\n\nsole means of challenging her judicial removal order—a means that is now time-\n\nbarred. To comply with § 1252(a)(5), Thoung would have had to petition the\n\ncourt of appeals within thirty days of the district court’s entry of the final removal\n\norder in 2013. Despite having the opportunity to do so, she did not.\n\n 2. Suspension Clause\n\n\n\n\n 2\n Even if, arguendo, a judicial order of removal must, as a procedural\nprerequisite, first be based on a criminal ground of removability described in\n8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such\norders in § 1252(a)(2)(C).\n\n -7-\n\f Second, Thoung argues that even if Congress did intend to bar habeas\n\nreview of judicial orders of removal, it has left no meaningful alternative form of\n\nreview and therefore has unconstitutionally suspended the writ of habeas corpus.\n\nThe Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall\n\nnot be suspended, unless when in Cases of Rebellion or Invasion the public Safety\n\nmay require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning\n\nthat “a serious Suspension Clause issue would be presented if [a statute has]\n\nwithdrawn that power from federal judges and provided no adequate substitute for\n\nits exercise.” 533 U.S. at 304–05.\n\n But St. Cyr goes on to observe “that Congress could, without raising any\n\nconstitutional questions, provide an adequate substitute through the court of\n\nappeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is\n\nneither inadequate nor ineffective to test the legality of a person’s detention’ does\n\nnot violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,\n\n381 (1977) (alteration omitted)). This is, of course, precisely the sort of process\n\nthat the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3\n\n\n 3\n Although the text of the Act is clear, the House-Senate Conference\nReport on the REAL ID Act further explained:\n\n Significantly, this section [§ 1252] does not eliminate judicial review, but\n simply restores such review to its former settled forum prior to 1996.\n Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review\n of criminal aliens’ removal orders, [this section] would give every alien one\n (continued...)\n\n -8-\n\f Thoung bears the burden of demonstrating the inadequacy of the REAL ID\n\nAct’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d\n\n976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in\n\nthe context of judicial orders of removal, that the REAL ID Act’s petition for\n\nreview process is an inadequate or ineffective substitute. It is not clear that, had\n\nThoung followed the § 1252(b) review process, she would have been prevented\n\nfrom doing so for jurisdictional reasons. 4\n\n Thus, in the absence of persuasive argument to the contrary, we assume the\n\nREAL ID Act’s petition for review process does not offend the Suspension Clause\n\nwith respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d\n\n\n 3\n (...continued)\n day in the court of appeals, satisfying constitutional concerns.\n\n151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.\nCyr, 533 U.S. at 314 n.38).\n 4\n Thoung points to our unpublished disposition in Musau v. Carlson, 499\nF. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine\nour conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court\nsimply determined that the district court’s dismissal of Musau’s habeas petition\nwas “premature” and remanded the question for further consideration. Id. at 841.\n The dissent in the instant case suggests this court would have lacked\njurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID\nAct’s petition-for-review process. But it does not necessarily follow that such a\nresult would implicate the Suspension Clause. The authority on which the dissent\nrelies suggests this court still could have vacated an ultra vires removal order and\nremanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,\n898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.\n2007). Thus, a presumably adequate forum would have existed to test the legality\nof Thoung’s detention.\n\n -9-\n\fat 1268 (assuming “the petition for review process is an adequate substitute for\n\nhabeas such that the REAL ID Act’s jurisdiction-stripping provisions do not\n\noffend the Suspension Clause”).\n\n 3. Conflict with Federal Rules\n\n Finally, Thoung asserts that our interpretation of the REAL ID Act results\n\nin unintended consequences. Because the Act’s review process requires a petition\n\nto be filed with the court of appeals within thirty days of an order of removal,\n\nThoung argues that it conflicts with the federal rules of procedure concerning\n\ncriminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s\n\nnotice of appeal from a criminal case to be filed in the district court within\n\nfourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the\n\ncourt of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed\n\nwithin thirty days after a final order of removal). Assuming that Rule 4(b)(1) of\n\nthe Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s\n\nsituation, the incongruity should not be surprising. REAL ID’s petition for\n\nreview process is a substitute for the statutory writ of habeas corpus, which is\n\nalso subject to timeliness limitations that sometimes depart from and supersede\n\nthe otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,\n\nunlike Rule 4(b)(1), which does “not have statutory grounding” and is non-\n\njurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),\n\n\n\n -10-\n\fthe REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”\n\nGonzales-Alarcon, 884 F.3d at 1271.\n\n Thoung also asserts that barring habeas review would strip district courts of\n\nthe power to reconsider their own orders, while immigration judges possess that\n\nauthority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen\n\nand reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen\n\nand reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the\n\nonly case Thoung cites for the proposition that district courts possess inherent\n\nauthority to reconsider their own removal orders refers to the power to reconsider\n\ninterlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d\n\n1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent\n\nauthority to reopen and reconsider its final order of removal under the\n\ncircumstances presented here, it certainly could not do so “by habeas corpus\n\nunder section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.\n\n§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s\n\nsuggestion that we read “judicial review” under § 1252(a) as referring only to\n\nappellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”\n\nmeanings of “judicial review” and “habeas corpus”), is foreclosed by the text of\n\nthe Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every\n\nprovision that limits or eliminates judicial review or jurisdiction to review, the\n\n\n\n -11-\n\fterms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus\n\nreview.”). 5\n\n Because none of Thoung’s arguments ultimately persuade us that our\n\ninterpretation of the REAL ID Act is incorrect, we hold that the statute’s\n\njurisdictional limitation on judicial review of removal orders prevents Thoung\n\nfrom petitioning the district court for the writ of habeas corpus.\n\n III. Conclusion\n\n Because the district court lacked subject-matter jurisdiction and thus lacked\n\npower to enter its October 2017 Memorandum and Order, that judgment must be\n\nvacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\n\n1096, 1128 (10th Cir. 2010).\n\n We therefore REMAND to the district court with directions to VACATE its\n\nOctober 2017 order and to dismiss Thoung’s petition without prejudice for lack of\n\n\n\n\n 5\n Similarly, we do not find persuasive Thoung’s argument that the venue\nsection of § 1252(b)(2) is limited to orders entered by immigration judges. That\nprovision may encompass district court judges, as evidenced by\n§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may\nbe appealed . . . to the court of appeals for the circuit in which the district court is\nlocated” and that “such appeal shall be considered consistent with the\nrequirements described in section 1252 of this title.”\n Furthermore, more specific language in related immigration statutes may\ntrump the general language of § 1252(b)(2) regarding immigration judges when\nsuch language operates notwithstanding any other provision. See Osuna-\nGuiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such\n“notwithstanding any other provision” language is present in § 1228(c)(1).\n\n -12-\n\fjurisdiction. We express no view as to the merits and leave the district court’s\n\n2013 removal order undisturbed.\n\n\n\n\n -13-\n\fThoung v. United States, No. 17-3220\n[END_CASE]", "role": "user" } ]
4,584,359	SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae.	SEC. & Exch. Comm'n v. Scoville	2019-01-24	17-4059	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Ebel, Hartz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887910/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887911/", "author_raw": ""}, {"type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 24, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n SECURITIES AND EXCHANGE\n COMMISSION,\n\n Plaintiff - Appellee,\n\n v. No. 17-4059\n\n CHARLES D. SCOVILLE,\n\n Defendant - Appellant,\n\n and\n\n TRAFFIC MONSOON, LLC,\n\n Defendant.\n ____________________________\n\n PEGGY HUNT,\n\n Receiver - Amicus Curiae.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. No. 2:16-CV-00832-JNP)\n _________________________________\n\nD. Loren Washburn (Micah S. Echols and Tom W. Stewart, Marquis Aurbach Coffing,\nLas Vegas, Nevada, with him on the briefs), Smith Correll, LLP, Salt Lake City, Utah for\nDefendants-Appellants.\n\nWilliam K. Shirey (Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor,\nwith him on the briefs), Counsel to the Solicitor, Securities and Exchange Commission,\nWashington, D.C., for Plaintiff-Appellee.\n\fPeggy Hunt, Michael F. Thomson, and John J. Weist, Dorsey & Whitney LLP, filed a\nbrief for Receiver-Amicus Curiae Peggy Hunt, in support of Plaintiff-Appellee.\n _________________________________\n\nBefore BRISCOE, EBEL, and HARTZ, Circuit Judges.\n _________________________________\n\nEBEL, Circuit Judge.\n _________________________________\n\n This case involves an alleged worldwide Ponzi scheme and the antifraud\n\nprovisions of the federal Securities Act of 1933 and the Securities Exchange Act of\n\n1934. Defendant Charles Scoville operated an internet traffic exchange business\n\nthrough his Utah company, Defendant Traffic Monsoon, LLC. The Securities and\n\nExchange Commission (“SEC”) initiated this civil enforcement action, alleging\n\nDefendants were instead operating an unlawful online Ponzi scheme involving the\n\nfraudulent sale of securities. In this interlocutory appeal, Scoville challenges several\n\npreliminary orders the district court issued at the outset of this still ongoing\n\nenforcement action, including orders freezing Defendants’ assets, appointing a\n\nreceiver, and preliminarily enjoining Defendants from continuing to operate their\n\nbusiness.\n\n In upholding these preliminary rulings, we conclude first that the antifraud\n\nprovisions of the federal securities laws reach Traffic Monsoon’s sales to customers\n\noutside the United States because, applying the conduct-and-effects test added to the\n\nfederal securities laws by the 2010 Dodd-Frank Act, Traffic Monsoon undertook\n\nsignificant conduct in the United States to make those sales to persons abroad. We\n\nfurther conclude that Traffic Monsoon’s Adpacks (bundled internet advertising\n\n 2\n\fservices that allowed a purchaser to share in some of Traffic Monsoon’s revenue)\n\nqualified as investment contracts, which are securities regulated under the 1933 and\n\n1934 securities acts. We further conclude that the SEC has asserted sufficient\n\nevidence to make it likely that the SEC will be able to prove that Defendants were\n\noperating a fraudulent scheme—a Ponzi scheme—selling Adpacks and that scheme\n\nviolated the antifraud statutes invoked in this litigation. Having jurisdiction under 28\n\nU.S.C. § 1292(a)(1) and (2), we, therefore, AFFIRM the district court’s challenged\n\npreliminary orders.\n\n I. BACKGROUND\n\n The parties have very different versions of Traffic Monsoon’s business model.\n\nAccording to the SEC, Traffic Monsoon was operating a Ponzi scheme; that is, a\n\nfraudulent scheme in which the business pays returns to its investors that are\n\nfinanced, not by the success of the business, but instead with money acquired from\n\nlater investors. See S.E.C. v. Thompson, 732 F.3d 1151, 1154 n.3 (10th Cir. 2013);\n\nOkla. Dep’t of Sec. ex rel. Faught v. Wilcox, 691 F.3d 1171, 1173 n.2 (10th Cir.\n\n2012).\n\n Scoville claims, instead, that Traffic Monsoon is a legitimate internet traffic\n\nexchange offering internet advertising services. Such a business is based on the fact\n\nthat internet search engines such as Google use algorithms that rank more frequently\n\nvisited websites higher than less frequently visited websites. In light of this, website\n\ntraffic exchange businesses sell visits to a purchaser’s website in order to make that\n\n\n\n 3\n\fwebsite look more popular than it really is. Scoville operated several other website\n\ntraffic exchanges before starting Traffic Monsoon in September 2014.\n\n Scoville is the sole member, manager and registered agent of Traffic Monsoon,\n\na Utah limited liability company. Scoville is also Traffic Monsoon’s sole employee,\n\nrunning the business from his Utah apartment. The company contracts with a\n\nRussian computer programmer and several call centers hired to respond to telephone\n\ninquiries from Traffic Monsoon’s customers.\n\n Scoville operated Traffic Monsoon through a website,\n\nwww.trafficmonsoon.com, which was housed on servers physically located in the\n\nUnited States. Someone wanting to do business with Traffic Monsoon first had to\n\nbecome a member by going to the website and creating an account. The member\n\ncould then purchase through the website several different advertising services. For\n\nexample, for $5, a member could purchase twenty clicks on the member’s online\n\nadvertisement, and for $5.95 a member could purchase 1,000 visits to his website.\n\n Alternatively, instead of purchasing these services “ala carte,” a member could\n\npurchase an Adpack for $50. A single Adpack entitled a member to receive 1,000\n\nvisits to his website and twenty clicks on his internet ad (a $10.95 value), plus the\n\nopportunity to share in Traffic Monsoon’s revenue up to a maximum amount of $55.\n\nAn Adpack purchaser qualified to share in Traffic Monsoon’s revenue for each day\n\nthat the purchaser clicked on ten (later fifty1) internet ads for other Traffic Monsoon\n\n\n1\n For most of the time Traffic Monsoon was operating, Adpack purchasers only had\nto click on ten ads each day to qualify for revenue sharing. In the last month of its\n 4\n\fmembers’ websites and remained on the ad’s landing page for five seconds. In this\n\nway, Scoville gave Adpack purchasers an incentive to provide some of the\n\nadvertising traffic that Traffic Monsoon was selling to its members.\n\n Traffic Monsoon made it easy for members to complete their daily qualifying\n\nadvertising clicks. When an Adpack purchaser logged onto his account, Traffic\n\nMonsoon would present rotating ads on which the member could click.\n\n The [member] is required to view each banner ad for only 5 seconds,\n and a counter appears that counts down the 5 seconds for [the member].\n At the end of that time the [member] must click on an image that\n appears, to verify that he is human, and then the next banner ad appears\n automatically. The act of completing the 50 clicks takes the [member]\n 4.1 minutes per day.\n\n(Aplt. App. at 18-19 ¶ 31 (bracketed material added).)\n\n Each day that the Adpack purchaser completed the requisite number of clicks,\n\nthe purchaser qualified to share in Traffic Monsoon’s revenue earned during the\n\npreceding twenty-four hours. Ninety-nine percent of Adpack purchasers qualified to\n\nshare in at least some of Traffic Monsoon’s revenue. But “neither the website nor\n\nany other publicly available source of information informed the members how Traffic\n\nMonsoon split the revenue between itself and qualified Adpack holders.” (Id. 2068\n\n¶ 14.) Furthermore, because Traffic Monsoon “kept no accounting records[,] . . .\n\nthere are no readily available documents that describe precisely how the money was\n\ndistributed.” (Id. 2067 ¶ 13.) Typically an Adpack purchaser would earn $1 in\n\n\n\noperation, however, Traffic Monsoon increased this requirement to fifty clicks per\nday.\n 5\n\fshared revenue for each day that he made the requisite number of qualifying clicks.\n\nThat meant that in approximately fifty-five days an Adpack purchaser could reach the\n\nmaximum $55 return, recouping the $50 the member originally paid for the Adpack\n\nplus earning an additional $5 (a 10% return over the fifty-five days). When an\n\nAdpack purchaser reached the maximum $55 limit in revenue sharing, that member\n\ncould either use that money to purchase another $50 Adpack, or he could withdraw\n\nsome or all of his money.\n\n A member could buy as many $50 Adpacks as he wanted; some members\n\nowned hundreds or even thousands of Adpacks. Significantly, no matter how many\n\nAdpacks a member purchased, the member could qualify to share in Traffic\n\nMonsoon’s revenue on all of those Adpacks through a single four-minute session\n\nclicking on other members’ ads. So, for example, if a member bought 100 Adpacks\n\nfor $5,000 and spent just four minutes a day for fifty-five days clicking on other\n\nTraffic Monsoon members’ ads, the Adpack purchaser would earn back the original\n\n$5,000 he paid for all 100 Adpacks plus an additional 10% return of $500. If a\n\nmember consistently rolled over his Adpacks every fifty-five days, instead of cashing\n\nout, he would earn a 66% annual return on his original $50 purchase and in a year he\n\nwould have 166 Adpacks. In three years, he could earn “$25,080—over five times\n\nthe initial [$5,000] investment.” (Id. 2073-74 ¶ 30.)\n\n A second way a Traffic Monsoon member could earn money was to recruit\n\nother members. The recruiting member would earn a 10% commission on every\n\nadvertising service the recruited member purchased. This included Adpacks the\n\n 6\n\frecruit purchased, both with new money and by rolling over earnings from prior\n\nAdpacks. The district court noted that “for all $50 Adpacks that were purchased by a\n\nreferred member, Traffic Monsoon typically deposited $60 worth of credits in\n\nmember accounts: $55 into the purchasing member’s account over a 55-day period\n\n(so long as the member qualified [to share revenue]) and $5 into the referring\n\nmember’s account.” (Id. 2068-69 ¶ 17.)\n\n The district court found that, while “[s]ome individuals initially purchased\n\nAdpacks principally as a way to promote their online businesses[,] . . . for many\n\nmembers, the profits that could be reaped from the Adpacks themselves quickly\n\neclipsed this motive.” (Id. 2071 ¶ 23.) “Indeed, many members have not received or\n\nused the web visits and banner clicks purchased in the Adpack” (id. 2072 ¶ 24),\n\nbecause Traffic Monsoon only delivered about 10% of the clicks and website visits it\n\nsold as part of the Adpacks.\n\n Before buying an Adpack, the member had to agree with Traffic Monson that\n\nthe Adpack was not an “investment” and that Traffic Monsoon’s “past performance\n\ndoes not guarantee [the purchaser] the same result in the future.” (Id. 2069 ¶ 18\n\n(internal quotation marks omitted).) Traffic Monsoon’s website also included a\n\nlengthy explanation to its members as to why it was not operating a Ponzi scheme.\n\nThe website further stated that the revenue Traffic Monsoon shared with its\n\nqualifying members was earned from the sale of all of its services, and not just\n\nAdpacks. But the website did not explain that Adpacks actually made up more than\n\n\n\n 7\n\f98% of Traffic Monsoon’s sales. In fact, Traffic Monsoon misrepresented that its\n\nother advertising services were more popular than Adpacks.\n\n Adpacks became enormously popular. Between October 2014 and July 2016,\n\nwhen the SEC initiated this civil enforcement action, members paid Traffic Monsoon\n\n$173 million in new money to purchase 3.4 million Adpacks and purchased\n\napproximately 14 million additional Adpacks—for $700 million—by rolling over\n\nmoney earned from earlier Adpacks. During this same time period, members paid\n\nonly $2.9 million for all other Traffic Monsoon advertising services. Of the total\n\namount of $175.9 million in cash Traffic Monsoon took in over this period, it\n\ndistributed approximately $88 million to its members, “leaving a difference of $87.4\n\nmillion between what has been paid in by members and what they have taken out.”\n\n(Id. 2074 ¶ 32.)\n\n Ninety percent of Adpacks were purchased by people who live outside the\n\nUnited States. Adpacks were especially popular in poorer countries, including\n\nBangladesh, Venezuela, and Morocco.\n\n “A large majority of the financial transactions the members completed with\n\nTraffic Monsoon—both payments made to Traffic Monsoon and withdrawals from\n\nthe member’s [sic] account—were conducted through PayPal.” (Id. 2066 ¶ 6.) In\n\nJanuary 2016, because “PayPal became concerned about the enormous growth in the\n\nvolume of transactions between Traffic Monsoon and its members,” PayPal “froze\n\nTraffic Monsoon’s account.” (Id. 2074 ¶ 33.) Traffic Monsoon then began using\n\nother electronic payment processors. The PayPal freeze lasted until July 11, 2016.\n\n 8\n\fThe SEC brought this enforcement action two weeks later. During those interim two\n\nweeks, Scoville withdrew $23 million from Traffic Monsoon’s PayPal accounts, in\n\nincrements of $100,000, which is the maximum withdrawal PayPal allows at one\n\ntime. Scoville tried to withdraw another $10 million, but PayPal reversed those\n\ntransactions.\n\n “The receiver currently has between $50-$60 million in frozen Traffic\n\nMonsoon assets” (id. 2075 ¶ 37), and “[t]he current combined account balance of\n\nTraffic Monsoon members is $34.2 million” (id. 2075 ¶ 36). But members “typically\n\nhad relatively little money in their account because the members would continually\n\nreinvest it by purchasing new Adpacks.” (Id. 2072 ¶ 27.) “If the outstanding\n\nAdpacks currently owned by Traffic Monsoon members had matured, the [members’]\n\naccount balance would” have increased from $34 million to $278.1 million.” (Id.\n\n2075 ¶ 36.)\n\n II. THIS SEC ENFORCEMENT ACTION\n\n The SEC initiated this civil enforcement action on July 26, 2016, invoking the\n\ndistrict court’s jurisdiction under 15 U.S.C. §§ 77t, 77v, 78u, and 78aa. Relevant to\n\nthis appeal, the SEC contends that Defendants violated § 17(a)(1) and (a)(3) of the\n\nSecurities Act of 1933, which prohibit fraud or deception in the offer or sale of\n\nsecurities,2 and § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-\n\n\n2\n Section 17(a) provides, in relevant part:\n\n (a) Use of interstate commerce for purpose of fraud or deceit\n\n 9\n\f5(a) and (c), which prohibit fraud or deception “in connection with the purchase or\n\nsale of any security.”3 As relief, the SEC seeks to enjoin Defendants permanently\n\n\n It shall be unlawful for any person in the offer or sale of any securities\n . . . by the use of any means or instruments of transportation or\n communication in interstate commerce or by use of the mails, directly or\n indirectly\n\n (1) to employ any device, scheme, or artifice to defraud, or\n\n ....\n\n (3) to engage in any transaction, practice, or course of\n business which operates or would operate as a fraud or\n deceit upon the purchaser.\n\n15 U.S.C. § 77q(a)(1), (3).\n3\n Section 10 provides, in relevant part:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce or of the mails, or\n of any facility of any national securities exchange—\n\n ....\n\n (b) To use or employ, in connection with the purchase or\n sale of any security registered on a national securities\n exchange or any security not so registered, . . . any\n manipulative or deceptive device or contrivance in\n contravention of such rules and regulations as the\n Commission may prescribe as necessary or appropriate in\n the public interest or for the protection of investors.\n\n15 U.S.C. § 78j(b). The SEC promulgated its Rule 10b-5 under § 10(b)’s authority.\nSee Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 141-42 (2011).\nRelevant here, Rule 10b-5 provides:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce, or of the mails or\n of any facility of any national securities exchange,\n 10\n\ffrom engaging in this scheme, to impose civil penalties, and to disgorge all\n\nDefendants’ “ill-gotten gains” (Aplt. App. 32).\n\n At the time the SEC initiated this enforcement action, it obtained ex parte three\n\npreliminary orders from the district court 1) freezing Defendants’ assets;\n\n2) appointing a receiver over those assets and over Defendants’ business; and\n\n3) entering a temporary restraining order (“TRO”) prohibiting Defendants from\n\ncontinuing to operate their business. After an adversarial evidentiary hearing, the\n\ndistrict court made the TRO a preliminary injunction and denied Defendants’ motion\n\nto set aside the receivership. It is these two rulings that are at issue in this\n\ninterlocutory appeal.\n\n We grant the receiver’s motion to appear on appeal as an amicus. The receiver\n\nasserts that, although the notice of appeal named both Scoville and Traffic Monsoon\n\nas appellants, the receiver has not authorized Traffic Monsoon’s appeal.\n\n\n\n (a) To employ any device, scheme, or artifice to defraud,\n [or]\n\n ....\n\n (c) To engage in any act, practice, or course of business\n which operates or would operate as a fraud or deceit upon\n any person,\n\n in connection with the purchase or sale of any security.\n\n17 C.F.R. § 240.10b-5. Because “Rule 10b-5 . . . is coextensive with the coverage of\n§ 10(b),” we will refer primarily to § 10(b). S.E.C. v. Smart, 678 F.3d 850, 856 n.7\n(10th Cir. 2012) (internal quotation marks omitted).\n\n 11\n\fFurthermore, the attorney who filed the notice of appeal informed the district court\n\nthat, while he represented Scoville, the attorney did not represent Traffic Monsoon\n\nbecause the company was in receivership. For these reasons, Traffic Monsoon is not\n\na proper party to this appeal. Nevertheless, the district court recently authorized\n\nScoville “to appeal and advance arguments on behalf of Traffic Monsoon in th[is]\n\nappeal.” (Doc. 120.)4 Consequently, our rulings on this appeal similarly apply to\n\nTraffic Monsoon.\n\n III. STANDARD OF REVIEW\n\n This court reviews the district court’s order appointing a receiver, and refusing\n\nto set aside that order, for an abuse of discretion. See DeTar Distrib. Co. v. Tri-State\n\nMotor Transit Co., 379 F.2d 244, 252 (10th Cir. 1967). See generally SEC v. Vescor\n\nCapital Corp., 599 F.3d 1189, 1194, 1198 (10th Cir. 2010) (recognizing, in SEC civil\n\naction, district court’s equitable power to appoint a receiver and the court’s “broad\n\npowers and wide discretion to determine relief in an equity receivership” (internal\n\nquotation marks, alteration omitted)).\n\n We also review the district court’s decision to grant a preliminary injunction\n\nfor an abuse of discretion. See McDonnell v. City & Cty. of Denver, 878 F.3d 1247,\n\n1252 (10th Cir. 2018). “A district court abuses its discretion when it commits an\n\nerror of law or relies upon a clearly erroneous factual finding.” Id. (internal\n\nquotation marks omitted).\n\n\n4\n We GRANT Scoville’s motion to supplement the record with the district court’s\namended order.\n 12\n\f A movant is not entitled to a preliminary injunction unless he can\n show: (1) he is likely to succeed on the merits of his claim; (2) he will\n suffer irreparable harm if the injunction is denied; (3) his threatened\n injury outweighs the harm the grant of the injunction will cause the\n opposing party; and (4) if issued, the injunction will not adversely affect\n the public interest. Because the grant of a preliminary injunction is “an\n extraordinary remedy,” the movant must make a “clear showing” that he\n is entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555\n U.S. 7, 22 . . . (2008). Further, the movant must meet a heightened burden\n if he seeks a preliminary injunction, like the one [at issue here], that will\n alter the status quo. When “seeking such an injunction [the movant] must\n make a strong showing both with regard to the likelihood of success on\n the merits and with regard to the balance of the harms.” O Centro Espirita\n Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.\n 2004) (en banc) [(per curiam)].\n\nMcDonnell, 878 F.3d at 1252 (citations omitted) (bracketed material added).5 On\n\nappeal, Scoville focuses only on whether the SEC has made a sufficient showing of\n\nthe likelihood of its success on its antifraud claims.\n\n\n\n\n IV. DISCUSSION\n\n Scoville challenges both the preliminary injunction and the receivership\n\nprimarily on three grounds. First, he contends that the antifraud provisions of the\n\nfederal securities acts do not apply to offers to sell, and sales of, Adpacks to Traffic\n\nMonsoon members located outside the United States. The extraterritorial reach of a\n\n\n\n5\n The district court required the SEC in this case to make this heightened showing\nbecause the preliminary injunction at issue here did more than maintain the status\nquo, it also required Traffic Monsoon affirmatively to provide the receiver with any\ninformation she deemed necessary. We accept that same analysis for purposes of this\nappeal.\n 13\n\ffederal statute is a matter of congressional intent and Congress has clearly indicated,\n\nthrough the 2010 Dodd-Frank Act amendments to the securities laws, that the\n\nantifraud provisions apply when either significant steps are taken in the United States\n\nto further a violation of those antifraud provisions or conduct outside the United\n\nStates has a foreseeable substantial effect within the United States. Because Scoville\n\nengaged in conduct within the United States that has been shown likely to have\n\nviolated the securities laws, we conclude the antifraud provisions reach Traffic\n\nMonsoon’s sale of Adpacks outside the United States.\n\n Second, Scoville argues that Adpacks are not “securities” and so are not\n\nsubject to federal securities laws. We reject that argument because Adpacks meet the\n\nthree-part test for investment contracts, which qualify as securities regulated by\n\nfederal law.\n\n Lastly, Scoville contends that the SEC has failed to show it is likely to succeed\n\nin proving the elements of its antifraud claims and, in particular, cannot show that\n\nDefendants engaged in a fraudulent securities scheme with the requisite scienter. We\n\nreject those arguments because the SEC presented sufficient evidence that\n\nDefendants were likely operating a fraudulent scheme—a Ponzi scheme—and likely\n\ndoing so with the required scienter. For these reasons, explained in greater detail\n\nbelow, and because we conclude the remainder of Scoville’s arguments lack merit,\n\nwe affirm the district court’s rulings entering a preliminary injunction and refusing to\n\nset aside the receivership.\n\n\n\n 14\n\fA. The antifraud provisions reach Traffic Monsoon’s sales of, or offers to sell,\nAdpacks to purchasers located outside the United States\n\n Scoville first asserts that the antifraud provisions of the federal securities acts\n\ndo not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living\n\noutside the United States. That amounts to 90% of Traffic Monsoon’s Adpack sales.\n\n 1. Congress has provided that the antifraud provisions apply\n extraterritorially when significant steps are taken in the United States to\n further a violation or conduct occurring outside the United States has a\n foreseeable substantial effect within the United States\n\n Whether a federal statute applies to conduct outside the United States is a\n\nquestion of congressional intent. See Morrison v. Nat’l Australia Bank Ltd., 561\n\nU.S. 247, 255 (2010). There is a presumption that Congress intends a statute to apply\n\nonly within the United States, see id., unless Congress has “affirmatively and\n\nunmistakably” indicated that the statute should apply extraterritorially, RJR Nabisco,\n\nInc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). “When a statute gives no\n\nclear indication of an extraterritorial application, it has none.” Morrison, 561 U.S. at\n\n255.\n\n “Th[e] [Supreme] Court has established a two-step framework for deciding\n\nquestions of extraterritoriality.” WesternGeco LLC. v. ION Geophysical Corp., 138\n\nS. Ct. 2129, 2136 (2018). “The first step asks ‘whether the presumption against\n\nextraterritoriality has been rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).\n\n“If the presumption against extraterritoriality has not been rebutted, the second step\n\nof our framework asks ‘whether the case involves a domestic application of the\n\n\n\n 15\n\fstatute.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). If either step is satisfied,\n\nthe statute applies to the challenged conduct. See id.\n\n Here, we can resolve at step one the question of the extraterritorial reach of the\n\nantifraud provisions because it is clear that Congress “affirmatively and\n\nunmistakably” directed that those provisions apply extraterritorially in an\n\nenforcement action. Through the 2010 Dodd-Frank Act, Congress amended both the\n\n1933 and 1934 securities acts to state:\n\n The district courts of the United States and the United States courts\n of any Territory shall have jurisdiction of an action or proceeding brought\n or instituted by the Commission or the United States alleging a violation\n of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act]\n involving—\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; or\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n15 U.S.C. § 77v(c) (bracketed material added); see also id. § 78aa(b) (amended 1934\n\nSecurities Exchange Act providing federal district courts with “jurisdiction of an\n\naction or proceeding brought or instituted by the [SEC] or the United States alleging a\n\nviolation of the antifraud provisions of this chapter involving--(1) conduct within the\n\nUnited States that constitutes significant steps in furtherance of the violation, even if the\n\nsecurities transaction occurs outside the United States and involves only foreign\n\ninvestors; or (2) conduct occurring outside the United States that has a foreseeable\n\nsubstantial effect within the United States”).\n\n 16\n\f Scoville argues that, while Dodd-Frank amended these jurisdictional\n\nprovisions of the securities acts, Congress has not expressly stated that the antifraud\n\nprovisions of those securities acts apply extraterritorially. We reject that argument in\n\nlight of the specific context in which Congress enacted the 2010 jurisdictional\n\namendments as part of the Dodd-Frank Act. See Morrison, 561 U.S. at 265 (stating,\n\nin determining whether a statute applies extraterritorially, that “[a]ssuredly context\n\ncan be consulted”); see also RJR Nabisco, 136 S. Ct. at 2102; Kiobel v. Royal Dutch\n\nPetroleum Co., 569 U.S. 108, 119 (2013) (looking to “historical background against\n\nwhich the [statute at issue there] was enacted” to determine whether presumption\n\nagainst extraterritorial application had been rebutted).\n\n Historically, Congress, in originally enacting the federal securities acts in 1933\n\nand 1934, did not address the extraterritorial reach of the antifraud provisions of\n\nthose statutes. See Morrison, 561 U.S. at 255 (addressing specifically § 10(b)).\n\nNotwithstanding that fact, courts of appeals for over forty years applied the antifraud\n\nprovisions of those acts extraterritorially when “wrongful conduct occurred in the\n\nUnited States” or when conduct outside the United States had a “substantial effect in\n\nthe United States or upon United States citizens.” Id. at 257 (internal quotation\n\nmarks omitted); see also id. at 255-60. This became known as the conduct-and-\n\neffects test. Id. at 259; see also id. at 257-59. The courts of appeals treated\n\napplication of the conduct-and-effects test to decide when the federal securities acts\n\napplied extraterritorially as a matter of subject-matter jurisdiction. Id. at 253-54,\n\n257-60.\n\n 17\n\f In 2006, in a completely different context (a Title VII employment case), the\n\nSupreme Court addressed the difference between matters that implicate a federal\n\ncourt’s subject-matter jurisdiction and matters that go, instead, to proving an element\n\nof a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). Distinguishing\n\nbetween the two issues also turns on congressional intent. Id. at 514-15. In Arbaugh,\n\nthe Supreme Court held that the statutory provision restricting application of Title\n\nVII only to employers with fifteen or more employees was not a jurisdictional\n\nprerequisite but instead went to the merits of a Title VII claim. 546 U.S. at 503, 515-\n\n16. The Court reached that conclusion because Congress placed this fifteen-\n\nemployee requirement, not in the statute’s jurisdictional provision, but instead in the\n\ndefinitions section of the statute, id. at 514-15; “when Congress does not rank a\n\nstatutory limitation on coverage as jurisdictional, courts should treat the restriction as\n\nnonjurisdictional in character,” id. at 516.\n\n Returning to the specific question at issue here, the extraterritorial reach of the\n\nantifraud provisions of the federal securities laws, the Second Circuit, in 2008,\n\napplied a conduct-and-effects test to such a securities case in Morrison v. National\n\nAustralian Bank Ltd. to determine the district court’s subject-matter jurisdiction. 547\n\nF.3d 167, 170-71 (2d Cir. 2008). In doing so, however, the Second Circuit noted that\n\nCongress, in enacting the securities laws, had never addressed the extraterritorial\n\nreach of their antifraud provisions and “urge[d] that this significant omission receive\n\nthe appropriate attention of Congress . . . .” Id. at 170 & n.4. The Supreme Court\n\n\n\n 18\n\fgranted certiorari to review the Second Circuit’s Morrison decision. See 558 U.S.\n\n1047 (Nov. 30, 2009).\n\n In the meantime, Congress accepted the Second Circuit’s invitation and, in\n\nOctober 2009, amendments to the federal securities acts were proposed that would\n\neventually become § 929P(b) of the Dodd-Frank Act; those amendments added the\n\nextraterritorial language now found in 15 U.S.C. §§ 77v(c) and 78aa(b), quoted\n\npreviously in this opinion, see supra p. 16.\n\n The Supreme Court, however, decided Morrison before Congress finalized\n\nthose amendments. The specific question presented to the Supreme Court in\n\nMorrison was whether § 10(b), the antifraud provision of the 1934 Act, applied to\n\npurchases by Australians on the Australian stock exchange of shares in the National\n\nBank of Australia. 561 U.S. at 250-52. The Australian purchasers brought suit in the\n\nUnited States under American securities laws, alleging that the Australian Bank’s\n\nstock lost value after the Bank bought an American mortgage servicing company\n\nwhose owners had misrepresented the value of that company to the Australian Bank.\n\nId. at 251-53.\n\n In Morrison, the Supreme Court, relying on the Arbaugh line of cases, first\n\nheld, contrary to decades of circuit-level authority, that the question of whether\n\nfederal securities laws applied extraterritorially was not a matter of subject-matter\n\njurisdiction, but instead went to the merits of the claim. Id. at 253-54 (“[T]o ask\n\nwhat conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a\n\n\n\n 19\n\fmerits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power\n\nto hear a case.” (internal quotation marks omitted)).\n\n Second, Morrison held that, because Congress, in originally enacting § 10(b),\n\ndid not address whether that provision applied extraterritorially, § 10(b) did not apply\n\noutside the United States. Id. at 255. Morrison, therefore, concluded that the courts\n\nof appeals were wrong to apply their conduct-and-effects tests to determine when\n\n§ 10(b) applied outside the United States because § 10(b) simply did not apply\n\nextraterritorially. Id. at 255-65. Instead, focusing on the language of § 10(b), the\n\nCourt held that that antifraud provision only applied domestically; that is, to fraud\n\nonly “in connection with the purchase or sale of a security listed on an American\n\nstock exchange, and the purchase or sale of any other security in the United States.”6\n\nId. at 273.\n\n The Supreme Court issued Morrison on June 24, 2010. At that time, the\n\nproposed Dodd-Frank Act was before a joint congressional committee tasked with\n\nironing out differences in the House and Senate versions of that bill. One such\n\ndifference was that the House had included what eventually became § 929P(b),\n\naddressing as a jurisdictional matter the extraterritorial application of the antifraud\n\n\n6\n Morrison addressed § 10(b) of the 1934 Act, which makes it unlawful to use fraud\n“in connection with the purchase or sale of any security.” Morrison, 561 U.S. at 262\n(quoting 15 U.S.C. § 78j(b)). The 1933 Act, instead, makes it unlawful to use fraud\nin selling, or offering to sell, a security. See 15 U.S.C. § 77q(a)(1), (3). But\nMorrison noted that “[t]he same focus on domestic transactions is evident in the\nSecurities Act of 1933, enacted by the same Congress as the [1934] Exchange Act,\nand forming part of the comprehensive regulation of securities trading.” 561 U.S. at\n268 (citation omitted).\n 20\n\fprovisions, while the Senate had removed that proposed amendment. The day that\n\nthe Supreme Court issued Morrison was the final day that the joint committee\n\nconsidered the proposed Dodd-Frank Act. See SEC v. Gruss, 859 F. Supp. 2d 653,\n\n664 (S.D. N.Y. 2012). The committee published the final version of the bill several\n\ndays later, and it included § 929P(b). The Dodd-Frank Act was enacted into law on\n\nJuly 21, 2010, less than a month after Morrison.\n\n Morrison, then, contrary to forty years of circuit-level law, held that the\n\nquestion of the extraterritorial reach of § 10(b) did not implicate a court’s subject-\n\nmatter jurisdiction; instead, other provisions of the securities acts gave district courts\n\nsubject-matter jurisdiction to hear SEC enforcement actions generally. 561 U.S. at\n\n254-55 (citing 15 U.S.C. § 78aa). But Congress, in the Dodd-Frank Act, amended\n\nonly the jurisdictional sections of the securities laws to indicate that the antifraud\n\nprovisions applied extraterritorially when a version of the conduct-and-effects test is\n\nmet. The Dodd-Frank Act did not make any explicit revisions to the substantive\n\nantifraud provisions themselves. See generally U.S. SEC v. Chicago Convention\n\nCtr., LLC, 961 F. Supp. 2d 905, 910 (N.D. Ill. 2013) (recognizing that “the plain\n\nlanguage of the Section 929P(b) seems purely jurisdictional—particularly in light of\n\nits placement in the jurisdictional section of the Exchange Act—yet the\n\nCongressional intent behind that provision supports the conclusion that the provision\n\nis substantive”).\n\n Notwithstanding the placement of the Dodd-Frank amendments in the\n\njurisdictional provisions of the securities acts, given the context and historical\n\n 21\n\fbackground surrounding Congress’s enactment of those amendments, it is clear to us\n\nthat Congress undoubtedly intended that the substantive antifraud provisions should\n\napply extraterritorially when the statutory conduct-and-effects test is satisfied. We\n\nagree, then, with the district court, which stated:\n\n Although courts generally presume that Congress is familiar with the\n precedents of the Supreme Court when it enacts legislation, the close\n proximity between the date when Morrison was issued and the date when\n the language of Dodd-Frank was finalized, greatly undermines this\n presumption. It strains credulity to assume that legislators read Morrison\n on the last day that they met to negotiate the final version of a massive\n 850-page omnibus bill designed to overhaul large swaths of the United\n States financial regulations and consciously chose to enact Section\n 929P(b) against the background of the fundamental shift in securities law\n brought about by Morrison. Given this timing, the more reasonable\n assumption is that Morrison was issued too late in the legislative process\n to reasonably permit Congress to react to it.\n\n(Aplt. App. 2086-87.)\n\n This conclusion is bolstered by the title Congress gave this section of the\n\nDodd-Frank Act, “STRENGTHENING ENFORCEMENT BY THE COMMISSION.”\n\nDodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (July 21,\n\n2010), 124 Stat 1376. See generally Almendarez-Torres v. United States, 523 U.S.\n\n224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools\n\navailable for the resolution of a doubt about the meaning of a statute.”) (internal\n\nquotation marks omitted)). In another section, § 929Y, the Dodd-Frank Act directed\n\nthe SEC to “solicit public comment and thereafter conduct a study to determine the\n\nextent to which private rights of action under the antifraud provisions” of the 1934\n\nAct “should be extended” extraterritorially. We agree with the district court that this\n\n\n 22\n\fsuggests Congress believed it “had extended the SEC’s authority to bring an\n\n[antifraud] enforcement action in Section 929P(b).” (Aplt. App. 2089 (emphasis\n\nadded).) Furthermore, several members of Congress, including § 929P’s drafter,\n\nRepresentative Paul Kanjorski, stated that the purpose of that provision was to make\n\nclear that the antifraud provisions apply extraterritorially in enforcement actions.\n\n For all of these reasons, then, we conclude that Congress has “affirmatively\n\nand unmistakably” indicated that the antifraud provisions of the federal securities\n\nacts apply extraterritorially when the statutory conduct-and-effects test is met.\n\n 2. Because Dodd-Frank’s conduct-and-effects test is met here, the\n antifraud provisions apply to Defendants’ sales of, and offers to sell,\n Adpacks to customers located outside the United States\n\n Having determined that the antifraud provisions of the federal securities\n\nacts can apply extraterritorially when the statutory conduct-and-effect test is\n\nmet, we now apply that test to Traffic Monsoon’s sales of, and offers to sell,\n\nAdpacks to customers located outside the United States. The scope of that\n\nextraterritorial application turns on congressional intent; that is, “on the limits\n\nCongress has . . . imposed on the statute[s’] foreign application.” RJR\n\nNabisco, 136 S. Ct. at 2101. Here, Congress limited the extraterritorial\n\napplication of the antifraud provisions in enforcement actions to\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; [and]\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n 23\n\f15 U.S.C. § 77v(c); see also id. § 78aa(b).\n\n We agree with the district court that Defendants’ “‘conduct within the United\n\nStates . . . constitute[d] significant steps in furtherance of the violation’ of Rule 10b-5\n\nand Section 17(a). Mr. Scoville conceived and created Traffic Monsoon in the\n\nUnited States. Through Traffic Monsoon, he created and promoted the Adpack\n\ninvestments over the internet while residing in Utah.” (Aplt. App. 2091.) We add\n\nthat the servers housing the Traffic Monsoon website were physically located in the\n\nUnited States. For these reasons, the district court correctly held that the antifraud\n\nprovisions of the federal securities acts encompass Defendants’ sales of, and offers to\n\nsell, Adpacks to Traffic Monsoon members located outside the United States.\n\nB. Adpacks are “securities”\n\n Scoville next contends that Adpacks are not “securities” and therefore\n\nDefendants are not subject to federal securities laws. Like the district court, we\n\ndisagree.\n\n As an initial matter, Scoville argues that the question of whether Adpacks are\n\n“securities” implicates federal courts’ subject-matter jurisdiction. We disagree, for\n\nthe same reasons the Supreme Court in Morrison held that whether the statute applied\n\nextraterritorially was not a jurisdictional issue. See 561 U.S. at 251, 253-54 & n.3\n\n(distinguishing, in § 10(b) enforcement action, between provisions in federal\n\nsecurities statutes giving district courts subject-matter jurisdiction—the power to hear\n\na case—from questions of what conduct § 10(b) reaches, “which is a merits\n\n\n 24\n\fquestion”). Instead, the question of whether Adpacks are “securities” is a merits\n\ninquiry. See, e.g., Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 880-81,\n\n886 (10th Cir. 2016) (affirming dismissal of private claim under the 1934 Act for\n\nfailure to state a claim on which relief can be granted because plaintiffs failed to\n\nshow that the challenged transactions were “securities”).\n\n Answering that merits inquiry, we agree with the district court that Adpacks\n\nqualify as securities regulated under the 1933 and 1934 acts. “Congress enacted the\n\nSecurities Acts in response to ‘serious abuses in a largely unregulated securities\n\nmarket,’ and for the purpose of regulating ‘investments, in whatever form they are\n\nmade and by whatever name they are called.” SEC v. Shields, 744 F.3d 633, 641\n\n(10th Cir. 2014) (quoting Reves v. Ernst & Young, 494 U.S. 56, 60–61 (1990)).\n\n“Congress ‘painted with a broad brush’ in defining a ‘security’ in recognition of the\n\n‘virtually limitless scope of human ingenuity, especially in the creation of “countless\n\nand variable schemes devised by those who seek the use of the money of others on\n\nthe promise of profits. . . .”’” Id. (quoting Reves, 494 U.S at 60-61). Nevertheless,\n\n“‘Congress, in enacting the securities laws, did not intend to provide a broad federal\n\nremedy for all fraud.’” Id. at 642 (quoting Marine Bank v. Weaver, 455 U.S. 551,\n\n556 (1982)).\n\n\n\n\n 25\n\f The 1933 Act defines “security” to include an “investment contract,” 15\n\nU.S.C. § 77b(a)(1), and that is what the district court determined an Adpack is.7\n\nAlthough the Act did not further define “investment contract,” the Supreme Court did\n\nin SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the owner of a large\n\nFlorida citrus grove sold small pieces of the grove to the public to help finance the\n\ngrove’s further development. Id. at 294-95. The purchasers of these small parts of\n\nthe grove were “for the most part . . . non-residents of Florida. They [we]re\n\npredominantly business and professional people who lack the knowledge, skill and\n\nequipment necessary for the care and cultivation of citrus trees. They [we]re\n\nattracted by the expectation of substantial profits.” Id. at 296. Purchasers received\n\nthe deed to the small pieces of land they bought and the option to hire the seller or\n\nsome other company to cultivate and market the fruit grown on that particular piece\n\nof land, with the net proceeds to be paid to the land purchaser. Id. at 295-96.\n\nOwners of 85% of the pieces of land sold hired the grove owner to cultivate and\n\nmarket their sections of the grove. Id. at 295. Howey held that a purchaser’s “land\n\nsales contract, the warranty deed [he received] and the service contract together\n\nconstitute[d] an ‘investment contract,’” id. at 297 (bracketed material added), defined\n\nas “a contract, transaction or scheme whereby a person invests his money in a\n\n\n\n\n7\n Although the 1933 and 1934 Acts use “slightly different formulations” for defining\na “security,” the Supreme Court has, nevertheless treated those formulations “as\nessentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).\n 26\n\fcommon enterprise and is led to expect profits solely from the efforts of the promoter\n\nor a third party.” Id. at 298-99; see also id. at 297-301.\n\n “[T]o distinguish an investment contract from other commercial dealings, the\n\nHowey test has subsequently been broken down into three requirements: (1) an\n\ninvestment, (2) in a common enterprise, (3) with a reasonable expectation of profits\n\nto be derived from the entrepreneurial or managerial efforts of others.” Shields, 744\n\nF.3d at 643 n.7 (internal quotation marks omitted). In addressing the legal question\n\nof whether some transaction qualifies as an “investment contract,” see Thompson,\n\n732 F.3d at 1161, we disregard form over substance and focus on the “‘economic\n\nrealities underlying a transaction, and not on the name appended thereto.’” Shields,\n\n744 F.3d at 643 (quoting United Housing Found’n, Inc. v. Forman, 421 U.S. 837, 849\n\n(1975)). Here, Scoville contends—unsuccessfully—that the SEC failed to make an\n\nadequate showing as to any of the three Howey requirements and, therefore, the\n\ndistrict court erred in treating Adpacks as “investment contracts” subject to federal\n\nsecurities regulation.\n\n 1. An Adpack qualifies as an investment\n\n An Adpack is an “investment.” Just as the citrus grove owner in Howey was\n\n“offering something more than fee simple interests in land, something different from\n\na farm or orchard coupled with management services,” 328 U.S. at 299, so, too,\n\nTraffic Monsoon was offering its Adpack purchasers something more than just\n\nadvertising services. Adpacks also offered the purchaser an opportunity to share in\n\nTraffic Monsoon’s revenue. Just as the land purchasers in Howey “had no desire to\n\n 27\n\foccupy the[ir] land or to develop it themselves” but were instead “attracted solely by\n\nthe prospects of a return on their investment,” id. At 300, so too the vast majority of\n\n$50 Adpack purchasers bought Adpacks, not to receive the same advertising services\n\nthey could have bought ala carte for $10.95, but instead to have the opportunity to\n\nshare in Traffic Monsoon’s revenue and earn significant returns. We agree with the\n\ndistrict court that\n\n [t]he evidence clearly points to the fact that Traffic Monsoon’s explosive\n growth was driven by members purchasing and repurchasing Adpacks in\n order to obtain the incredible returns on their investment, not by intense\n demand for Traffic Monsoon’s [internet advertising] services. Indeed,\n many Adpack purchasers had no interest in the website visits Traffic\n Monsoon offered, and Traffic Monsoon only ever delivered a fraction of\n the clicks it promised to deliver. In short, the economic reality of the\n Adpack purchases is that they were investments.\n\n(Aplt. App. 2103 (bracketed material added).)\n\n Neither the fact that a few Adpack purchasers testified that they bought\n\nAdpacks for the advertising services, nor the fact that not every Adpack purchaser\n\nqualified to share revenue (although almost all of them did), prevents us from\n\ncharacterizing Adpacks as investments. See Howey, 328 U.S. at 300-01 (holding, in\n\nthe context of § 10(b), that Court’s conclusion that land sales and service contracts\n\namounted to an “investment contract” was “unaffected by the fact that some\n\npurchasers choose not to accept the full offer of an investment contract by declining\n\nto enter into a service contract with the” citrus grove owner).\n\n\n\n\n 28\n\f 2. An Adpack involves a common enterprise\n\n An Adpack is an investment in “a common enterprise.” Just as the land\n\npurchasers in Howey bought the opportunity “to share in the profits of a large citrus\n\nfruit enterprise managed and partly owned by” the citrus grove owners, 328 U.S. at\n\n299, so Adpack purchasers bought the opportunity to share in revenue derived from\n\nthe sale of all of Traffic Monsoon’s advertising services. The revenue in which\n\nAdpack purchasers could share, then, was generated from a common enterprise,\n\nTraffic Monsoon’s sale of internet advertising services.\n\n 3. An Adpack provides members with a reasonable expectation of profit\n derived from the entrepreneurial or management efforts of others\n\n Howey’s third requirement for an investment contract is that the investor “is\n\nled to expect profits solely from the efforts of the promoter or a third party.” 328\n\nU.S. at 298-99; see also Shields, 744 F.3d at 643 n.7 (applying this part of Howey’s\n\ninquiry to require that the consumer have “a reasonable expectation of profits to be\n\nderived from the entrepreneurial or managerial efforts of others” (internal quotation\n\nmarks omitted)).\n\n Scoville points out that, although the revenue Adpack purchasers share is\n\nderived from Defendants’ efforts to sell Traffic Monsoon’s advertising services, the\n\nreturns Adpack purchasers earn are also the result of purchasers’ own efforts in\n\nclicking on other members’ websites in order to qualify to share revenue. Although\n\nthe Supreme Court, in Howey, stated that the profits expected from an “investment\n\ncontract” should result “solely” from others’ efforts, 328 U.S. at 301, the Tenth\n\n\n 29\n\fCircuit has held that “[i]nvestments satisfy the third prong of the Howey test when\n\nthe efforts made by those other than the investor are the ones which affect\n\nsignificantly the success or failure of the enterprise.” Shields, 744 F.3d at 645\n\n(internal quotation marks omitted); see also Crowley v. Montgomery Ward & Co.,\n\n570 F.2d 875, 877 (10th Cir. 1975).\n\n That is the case here. Adpack purchasers expected Traffic Monsoon’s success\n\nto turn “significantly” on the company’s efforts to sell its advertising services. See\n\ngenerally Miller v. Cent. Chinchilla Grp., Inc., 494 F.2d 414, 417 (8th Cir. 1974) (“In\n\ndetermining whether the plaintiffs’ contributions were nominal or significant, the\n\nissue is not what efforts, in fact, were required of them. Rather, it is what efforts the\n\nplaintiffs were reasonably led to believe were required of them at the time they\n\nentered into the contracts.”). Assuming Adpack purchasers expected to contribute to\n\nsome degree in the delivery of those services by clicking on other members’\n\nwebsites, Adpack purchasers did not expect their own efforts to be significant. No\n\nmatter how many Adpacks a member owned, the member expected to qualify to share\n\nrevenue on all of his or her Adpacks by spending only four minutes a day clicking on\n\nup to fifty ads. Moreover, there is evidence that receiving clicks on one’s website or\n\ninternet ad was not the motivation for the vast majority of Adpack purchasers;\n\nearning a 10% return on their investment was.\n\n Scoville further argues that Adpacks cannot be “investment contracts” because\n\nthere was never a “guarantee” that qualified Adpack purchasers would receive a share\n\nof Traffic Monsoon’s revenue because Traffic Monsoon’s obligation to share its\n\n 30\n\frevenue was contingent on there being revenue to share. But neither were the citrus\n\ngrove purchasers in Howey guaranteed a return on their investment in the citrus crop.\n\n328 U.S. at 296. So long as a transaction satisfies Howey’s test for an “investment\n\ncontract,” “it is immaterial whether the enterprise is speculative or non-speculative.”\n\nId. at 301. To qualify as an “investment contract,” the purchaser just has to have a\n\n“reasonable expectation of profits.” Shields, 744 F.3d at 642 n.7, 643; see, e.g.,\n\nEdwards, 540 U.S. at 395; see also SEC v. Int’l Loan Network, Inc. 968 F.2d 1304,\n\n1308 (D.C. Cir. 1992) (rejecting argument that investment program could not be an\n\n“investment contract” because no return was guaranteed; stating that “[v]ery few\n\ninvestments ‘guarantee’ a return—all that Howey requires is a ‘reasonable\n\nexpectation of profits’” (quoting Forman, 421 U.S. at 852)). The evidence here\n\nsupported Adpack purchasers’ reasonable expectation—based on the representations\n\nmade to them—of sharing Traffic Monsoon’s revenue. Although Traffic Monsoon’s\n\nwebsite stated there was no guarantee that there would always be revenue for\n\nqualifying members to share, it does not appear that there was ever a time, before the\n\nPayPal freeze, when a qualifying member did not receive purported shared revenue.\n\n 4. Conclusion: Adpacks qualify as investment contracts\n\n For these reasons, then, the district court did not err in concluding that\n\nAdpacks meet Howey’s three-part test and, therefore, qualify as “investment\n\ncontracts” and, thus, as securities subject to regulation under the federal securities\n\nlaws.\n\n\n\n 31\n\fC. It is likely that the SEC can prove that Defendants’ conduct violated the\nantifraud provisions of federal securities laws\n\n Scoville asserts that the district court abused its discretion in determining that\n\nthe SEC can likely establish that Defendants violated the antifraud statutes. Scoville\n\ntakes aim at two requisite elements of Defendants’ liability.\n\n 1. Defendants were operating a Ponzi scheme\n\n The antifraud statutes apply to fraudulent schemes involving securities.8 The\n\ndistrict court held that the SEC will likely succeed in proving that Defendants were\n\ninvolved in such a fraudulent scheme because Defendants were operating a Ponzi\n\nscheme, which is “inherently deceptive because it generates a false appearance of\n\nprofitability by using money from new investors to generate returns for earlier\n\ninvestors.” (Aplt. App. 2099 (citing Mukamal v. Gen. Elec. Capital Corp. (In re\n\nPalm Beach Fin. Partners, L.P.), 517 B.R. 310, 346 (Bankr. S.D. Fla. 2013)).)\n\n Scoville counters that the SEC cannot prove that Defendants were operating a\n\nPonzi scheme. But there is strong evidence that that is exactly what Defendants were\n\ndoing.\n\n\n8\n More precisely, § 17(a)(1) prohibits “any device, scheme, or artifice to defraud” in\n“the offer or sale of any securities.” 15 U.S.C. § 77q(a)(1). Section 17(a)(3) also\napplies to “the offer or sale of any securities,” and prohibits “engag[ing] in any\ntransaction, practice, or course of business which operates or would operate as a\nfraud or deceit upon the purchaser.” Id. § 77q(a)(3). Section 10(b) addresses the use\nof “any manipulative or deceptive device or contrivance” “in connection with the\npurchase or sale of any security.” Id. § 78j(b). SEC Rule 10b-5(a) and (c) apply “in\nconnection with the purchase or sale of any security,” and prohibit using “any device,\nscheme, or artifice to defraud,” and “engag[ing] in any act, practice, or course of\nbusiness which operates or would operate as a fraud or deceit upon any person.” 17\nC.F.R. § 240.10b-5(a), (c).\n 32\n\f The Tenth Circuit has offered several different definitions of a Ponzi scheme,\n\nbut the district court captured the gist of those definitions in noting that “the central\n\ncharacteristic of a Ponzi scheme is that returns are not based upon any underlying\n\nbusiness activity. Instead, money from new investors is used to pay earlier\n\ninvestors.” (Aplt. App. 2097.) See Thompson, 732 F.3d at 1154 n.3; Wilcox, 691\n\nF.3d at 1173 n.2. In addition, in a Ponzi scheme often the “money contributed by\n\nlater investors generates artificially high dividends for the original investors, whose\n\nexample attracts even larger investments.” Wilcox, 691 F.3d at 1173 n.2.\n\n The district court did not abuse its discretion in determining that the SEC is\n\nlikely to prove Defendants were operating a Ponzi scheme. For every $50 Adpack it\n\nsold, Traffic Monsoon often had to pay out $55 to qualifying purchasers, and even\n\n$60 if the purchaser had been recruited by another Traffic Monsoon member. Traffic\n\nMonsoon paid these amounts from sales of new Adpacks; there was essentially no\n\nother business activity generating the revenue Traffic Monsoon was sharing with\n\nqualifying Adpack purchasers. Furthermore, Traffic Monsoon misrepresented to its\n\nAdpack purchasers that the revenue it was sharing came from sales of all of Traffic\n\nMonsoon’s other advertising services, which Traffic Monsoon falsely indicated were\n\nmore popular than its Adpacks. Thus, the record evidence would support finding that\n\nDefendants were offering the possibility of high rates of return on qualifying\n\nAdpacks and paying those returns using money from later Adpack sales. In light of\n\nthis evidence, it was likely the SEC will be able to show that Defendants were\n\n\n\n 33\n\foperating a Ponzi scheme and thus, be able to prove that Defendants used fraud or\n\ndeception to sell, or offer to sell, Adpacks.\n\n Scoville’s arguments to the contrary are unavailing. For example, although he\n\nreasserts his argument that Traffic Monsoon was only selling advertising services, as\n\npreviously discussed, the vast majority of Adpack purchasers were not seeking to buy\n\ninternet advertising services but were, instead, seeking a significant return on their\n\n$50-per-Adpack investment. Moreover, Defendants may still be operating a Ponzi\n\nscheme even if they have “some legitimate business operations.” Gillman v. Geis (In\n\nre Twin Peaks Fin. Servs., Inc.), 516 B.R. 651, 655 (Bankr. D. Utah 2014); see also\n\nMiller v. Wulf, 84 F. Supp. 3d 1266, 1272 & n.45 (D. Utah 2015).\n\n Neither does Scoville’s assertion—that before an Adpack purchaser could\n\nshare in Traffic Monsoon’s revenue, he had to qualify by clicking on other members’\n\nwebsites for four minutes on a given day and then there had to be revenue Traffic\n\nMonsoon generated in the preceding twenty-four hours—prevent the district court’s\n\ndetermination that Defendants were running a Ponzi scheme. Even though\n\nDefendants disclosed these requisite conditions for an Adpack purchaser to share in\n\nTraffic Monsoon’s revenue, there is evidence that Defendants deceived purchasers by\n\ntelling them that the revenue to be shared was generated by Traffic Monsoon’s other\n\n\n\n\n 34\n\fadvertising services that were more popular than Adpacks. Instead, essentially all of\n\nthe revenue to be shared was generated by the sale of additional Adpacks.9\n\n Lastly, Scoville argues that Defendants did not expressly limit returns on\n\nAdpacks only to the original purchasers. And he contends that none of its members\n\nhad ever suffered a loss. But the fact that this Ponzi scheme had not yet imploded\n\ndoes not mean Defendants were not running a Ponzi scheme.\n\n 2. Scienter\n\n In a related argument, Scoville next asserts that the SEC will not be able to\n\nestablish that Defendants acted with the requisite scienter. We disagree.\n\n Sections 10(b) and 17(a)(1) require proof that Defendants acted with the\n\n“intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 & n.5,\n\n695-97 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U.S 185, 194 & n.12\n\n(1976)). (No scienter is required under § 17(a)(3). See Aaron, 446 U.S. at 695-96.)\n\nThe district court correctly held that this scienter is likely established in this case by\n\nthe fact that Defendants were operating a Ponzi scheme, which again is “inherently\n\ndeceptive because it generates a false appearance of profitability by using money\n\nfrom new investors to generate returns for earlier investors.” (Aplt. App. 2099\n\n(citing In re Palm Beach Fin. Partners, 517 B.R. at 346).).10\n\n\n9\n In light of this crucial deception, we reject, at this point in the case, Scoville’s\nassertion that Defendants were not operating a Ponzi scheme because “Traffic\nMonsoon has fully disclosed everything to its members.” (Aplt. Br. 52.)\n10\n Scoville incorrectly asserts that the district court never addressed Defendants’\nscienter.\n 35\n\fD. Traffic Monsoon’s revenue generated from the sale of its other advertising\nservices is properly subject to the district court’s preliminary orders\n\n Lastly, Scoville asserts that, “[a]t a minimum, the Court should order the\n\nDistrict Court to release the [currently frozen] Traffic Monsoon funds that are\n\nadmittedly outside the scope of any of the SEC’s claims.” (Aplt. Br. 53 (bracketed\n\nmaterial added).) Scoville refers to the approximately $3 million that Traffic\n\nMonsoon earned from September 2014 through July 2016 from the sale of its internet\n\nadvertising services other than Adpacks. But it is not clear, as Scoville asserts, that\n\nthese other sales are “outside the scope of any of the SEC’s claims.” Id. The\n\nrevenue to be shared with qualifying Adpack purchasers was generated from the sale\n\nof all of Traffic Monsoon’s advertising services. Further, Traffic Monsoon had no\n\naccounting records; its revenue apparently was pooled together and Adpack\n\npurchasers were paid from that pool. In light of this evidence, Scoville has not\n\nshown that the district court abused its discretion in preliminarily freezing all of\n\nTraffic Monsoon’s funds and placing them in the receivership.11\n\n V. CONCLUSION\n\n For the foregoing reasons, we AFFIRM in all respects the district court’s\n\nchallenged preliminary decisions in this civil enforcement action. Although early in\n\n\n\n\n11\n The issue of whether Scoville should personally be liable under the antifraud\nprovisions has not been adequately raised before us, nor adequately preserved below.\nAccordingly, we decline to address that issue.\n 36\n\fthis civil enforcement action, the SEC has established the likelihood that it will\n\nsucceed on its antifraud claims against Defendants.12\n\n\n\n\n12\n Once our mandate has issued, the Court will direct the parties to address the status\nof the related appeal, No. 18-4038.\n 37\n\f17-4059, SEC v. Traffic Monsoon LLC", "author": "EBEL, Circuit Judge."}, {"type": "concurrence", "author": "BRISCOE", "text": "BRISCOE, J., concurring.\n\n I concur in the judgment. I agree with the majority that AdPacks are “securities”\n\nwithin the meaning of the 1933 and 1934 securities acts, Maj. Op. 24–31, that Scoville\n\ndid not adequately preserve the personal liability issue, id. at 35 n.11, and that the SEC is\n\nlikely to prove that the Defendants’ conduct violated the antifraud provisions of the\n\nsecurities acts and their accompanying regulations, id. at 31–35. I am not persuaded,\n\nhowever, as the majority appears to assume, that the AdPack sales at issue were foreign\n\nsales outside of the United States. Absent that assumption there would be no need to\n\naddress in this case whether the antifraud provisions of the securities acts apply\n\nextraterritorially. I write separately to endorse the ruling of the district court, Aplt. App.\n\nat 2091–94, and as also advanced by the SEC on appeal, Resp. Br. 52–57, that under\n\nMorrison v. Nat’l Australian Bank Ltd., 561 U.S. 247 (2010), Traffic Monsoon sold\n\nAdPacks in the United States. Therefore, the securities acts and their accompanying\n\nregulations cover the Defendants’ domestic activity even if a large percentage of the\n\nAdPack buyers purchased the securities while abroad.\n\n As explained by the majority, the Supreme Court has developed a two-step test to\n\ndetermine questions of extraterritoriality. WesternGeco LLC v. ION Geophysical Corp.,\n\n138 S. Ct. 2129, 2136 (2018). We have discretion to begin the analysis at step one or two,\n\nid. at 2136–37, and if either step is satisfied then the statute applies to the challenged\n\nconduct, see id. at 2136. I would resolve this case at step two.\n\f “Under the second step of [the] framework, we must identify the statute’s focus,”\n\nWesternGeco, 138 S. Ct. at 2137 (citing RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.\n\n2090, 2101 (2016)) (internal quotation marks omitted), and the Supreme Court has\n\nclarified that “the focus of the Exchange Act is . . . upon purchases and sales of securities\n\nin the United States,” Morrison, 561 U.S. at 266. Morrison provides the test for liability\n\nunder § 10(b). As Morrison explains, based on the text of § 10(b),1 we ask “whether the\n\npurchase or sale [of the security] [wa]s made in the United States, or involve[d] a security\n\nlisted on a domestic exchange.” 561 U.S. at 269–70 (emphasis added). Since AdPacks\n\nwere not listed on a domestic exchange, we must decide if either the “purchase[s]” or the\n\n“sale[s]” were “made in the United States.”\n\n The Second, Third, and Ninth Circuits have adopted the “irrevocable liability” test\n\nto determine where a security “sale” or “purchase” occurs under Morrison and § 10(b).\n\nSee Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 67 (2d Cir. 2012)\n\n(“[W]e hold that transactions involving securities that are not traded on a domestic\n\nexchange are domestic if irrevocable liability is incurred or title passes within the United\n\nStates.”); see also Stoyas v. Toshiba Corp., 896 F.3d 933, 949 (9th Cir. 2018), petition for\n\n\n1\n Section 10(b) makes it unlawful\n\n [t]o use or employ, in connection with the purchase or sale of any security\n registered on a national securities exchange or any security not so registered\n . . . any manipulative or deceptive device or contrivance in contravention of\n such rules and regulations as the Commission may prescribe as necessary or\n appropriate in the public interest or for the protection of investors.\n\n15 U.S.C. § 78j(b) (emphasis added).\n\n 2\n\fcert. filed, (U.S. Oct. 17, 2018) (No. 18-486); United States v. Georgiou, 777 F.3d. 125,\n\n137 (3d Cir. 2015). As the Second Circuit has explained, a domestic transaction occurs\n\nwhen “the purchaser incur[s] irrevocable liability within the United States to take and pay\n\nfor a security, or [when] the seller incur[s] irrevocable liability within the United States to\n\ndeliver a security.” Absolute Activist, 677 F.3d at 68. While “irrevocable liability” may\n\nappear to turn on contract principles and “the location of the securities transactions at\n\nissue,” see id. at 70 (emphasis added), the Second Circuit later clarified that “territoriality\n\nunder Morrison concerns where, physically, the purchaser or seller committed him or\n\nherself, not where, as a matter of law, a contract is said to have been executed.” United\n\nStates v. Vilar, 729 F.3d 62, 77 n.11 (2d Cir. 2013) (citing Morrison, 561 U.S. at 268). It\n\nappears, then, that the irrevocable liability test is a fact intensive inquiry to determine\n\nwhether a “sale” or “purchase” of “any security not so registered” occurred in the United\n\nStates.\n\n In this case, Traffic Monsoon was based in the United States and operated out of\n\nthe United States when selling its securities. As found by the district court, Scoville\n\nregistered Traffic Monsoon with the State of Utah as a limited liability company. Scoville\n\nfiled organizational documents with the State of Utah which identified Scoville as Traffic\n\nMonsoon’s sole member, manager, and registered agent. Scoville listed his apartment’s\n\naddress in Murray, Utah, as Traffic Monsoon’s corporate address. Traffic Monsoon sold\n\nAdPacks via the internet, and the record further demonstrates that Traffic Monsoon made\n\nits sales through computer servers based solely in the United States. Under any common\n\nsense reading of Morrison and § 10(b), Traffic Monsoon made several securities sales in\n\n 3\n\fthe United States. That many AdPack buyers were abroad when they purchased the\n\nsecurities over the internet does not alter this conclusion. Neither does Scoville’s\n\nargument that he was in the United Kingdom for a period while Traffic Monsoon sold\n\nAdPacks since Traffic Monsoon executed all the AdPack sales in an automated manner in\n\nthe United States.\n\n The analysis under § 17(a) is similar. Section 17(a) makes it “unlawful for any\n\nperson in the offer or sale of any securities . . . to employ any device, scheme, or artifice\n\nto defraud, or . . . to engage in any transaction, practice, or course of business which\n\noperates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. § 77q(a)(1),\n\n(3) (emphasis added). Under the same reasoning illustrated above, Traffic Monsoon made\n\n“sale[s]” or “offer[s]” of “securities” in the United States within the meaning of § 17(a).\n\n Accordingly, I would affirm because, as explained by the district court, the SEC\n\nsufficiently established that the Defendants sold securities in the United States in\n\nviolation of the securities acts and their accompanying regulations.\n\n\n\n\n 4"}]}	BRISCOE	EBEL	HARTZ	1		{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4584359/	Published	1	1	1	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 24, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n SECURITIES AND EXCHANGE\n COMMISSION,\n\n Plaintiff - Appellee,\n\n v. No. 17-4059\n\n CHARLES D. SCOVILLE,\n\n Defendant - Appellant,\n\n and\n\n TRAFFIC MONSOON, LLC,\n\n Defendant.\n ____________________________\n\n PEGGY HUNT,\n\n Receiver - Amicus Curiae.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. No. 2:16-CV-00832-JNP)\n _________________________________\n\nD. Loren Washburn (Micah S. Echols and Tom W. Stewart, Marquis Aurbach Coffing,\nLas Vegas, Nevada, with him on the briefs), Smith Correll, LLP, Salt Lake City, Utah for\nDefendants-Appellants.\n\nWilliam K. Shirey (Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor,\nwith him on the briefs), Counsel to the Solicitor, Securities and Exchange Commission,\nWashington, D.C., for Plaintiff-Appellee.\n\fPeggy Hunt, Michael F. Thomson, and John J. Weist, Dorsey & Whitney LLP, filed a\nbrief for Receiver-Amicus Curiae Peggy Hunt, in support of Plaintiff-Appellee.\n _________________________________\n\nBefore BRISCOE, EBEL, and HARTZ, Circuit Judges.\n _________________________________\n\nEBEL, Circuit Judge.\n _________________________________\n\n This case involves an alleged worldwide Ponzi scheme and the antifraud\n\nprovisions of the federal Securities Act of 1933 and the Securities Exchange Act of\n\n1934. Defendant Charles Scoville operated an internet traffic exchange business\n\nthrough his Utah company, Defendant Traffic Monsoon, LLC. The Securities and\n\nExchange Commission (“SEC”) initiated this civil enforcement action, alleging\n\nDefendants were instead operating an unlawful online Ponzi scheme involving the\n\nfraudulent sale of securities. In this interlocutory appeal, Scoville challenges several\n\npreliminary orders the district court issued at the outset of this still ongoing\n\nenforcement action, including orders freezing Defendants’ assets, appointing a\n\nreceiver, and preliminarily enjoining Defendants from continuing to operate their\n\nbusiness.\n\n In upholding these preliminary rulings, we conclude first that the antifraud\n\nprovisions of the federal securities laws reach Traffic Monsoon’s sales to customers\n\noutside the United States because, applying the conduct-and-effects test added to the\n\nfederal securities laws by the 2010 Dodd-Frank Act, Traffic Monsoon undertook\n\nsignificant conduct in the United States to make those sales to persons abroad. We\n\nfurther conclude that Traffic Monsoon’s Adpacks (bundled internet advertising\n\n 2\n\fservices that allowed a purchaser to share in some of Traffic Monsoon’s revenue)\n\nqualified as investment contracts, which are securities regulated under the 1933 and\n\n1934 securities acts. We further conclude that the SEC has asserted sufficient\n\nevidence to make it likely that the SEC will be able to prove that Defendants were\n\noperating a fraudulent scheme—a Ponzi scheme—selling Adpacks and that scheme\n\nviolated the antifraud statutes invoked in this litigation. Having jurisdiction under 28\n\nU.S.C. § 1292(a)(1) and (2), we, therefore, AFFIRM the district court’s challenged\n\npreliminary orders.\n\n I. BACKGROUND\n\n The parties have very different versions of Traffic Monsoon’s business model.\n\nAccording to the SEC, Traffic Monsoon was operating a Ponzi scheme; that is, a\n\nfraudulent scheme in which the business pays returns to its investors that are\n\nfinanced, not by the success of the business, but instead with money acquired from\n\nlater investors. See S.E.C. v. Thompson, 732 F.3d 1151, 1154 n.3 (10th Cir. 2013);\n\nOkla. Dep’t of Sec. ex rel. Faught v. Wilcox, 691 F.3d 1171, 1173 n.2 (10th Cir.\n\n2012).\n\n Scoville claims, instead, that Traffic Monsoon is a legitimate internet traffic\n\nexchange offering internet advertising services. Such a business is based on the fact\n\nthat internet search engines such as Google use algorithms that rank more frequently\n\nvisited websites higher than less frequently visited websites. In light of this, website\n\ntraffic exchange businesses sell visits to a purchaser’s website in order to make that\n\n\n\n 3\n\fwebsite look more popular than it really is. Scoville operated several other website\n\ntraffic exchanges before starting Traffic Monsoon in September 2014.\n\n Scoville is the sole member, manager and registered agent of Traffic Monsoon,\n\na Utah limited liability company. Scoville is also Traffic Monsoon’s sole employee,\n\nrunning the business from his Utah apartment. The company contracts with a\n\nRussian computer programmer and several call centers hired to respond to telephone\n\ninquiries from Traffic Monsoon’s customers.\n\n Scoville operated Traffic Monsoon through a website,\n\nwww.trafficmonsoon.com, which was housed on servers physically located in the\n\nUnited States. Someone wanting to do business with Traffic Monsoon first had to\n\nbecome a member by going to the website and creating an account. The member\n\ncould then purchase through the website several different advertising services. For\n\nexample, for $5, a member could purchase twenty clicks on the member’s online\n\nadvertisement, and for $5.95 a member could purchase 1,000 visits to his website.\n\n Alternatively, instead of purchasing these services “ala carte,” a member could\n\npurchase an Adpack for $50. A single Adpack entitled a member to receive 1,000\n\nvisits to his website and twenty clicks on his internet ad (a $10.95 value), plus the\n\nopportunity to share in Traffic Monsoon’s revenue up to a maximum amount of $55.\n\nAn Adpack purchaser qualified to share in Traffic Monsoon’s revenue for each day\n\nthat the purchaser clicked on ten (later fifty1) internet ads for other Traffic Monsoon\n\n\n1\n For most of the time Traffic Monsoon was operating, Adpack purchasers only had\nto click on ten ads each day to qualify for revenue sharing. In the last month of its\n 4\n\fmembers’ websites and remained on the ad’s landing page for five seconds. In this\n\nway, Scoville gave Adpack purchasers an incentive to provide some of the\n\nadvertising traffic that Traffic Monsoon was selling to its members.\n\n Traffic Monsoon made it easy for members to complete their daily qualifying\n\nadvertising clicks. When an Adpack purchaser logged onto his account, Traffic\n\nMonsoon would present rotating ads on which the member could click.\n\n The [member] is required to view each banner ad for only 5 seconds,\n and a counter appears that counts down the 5 seconds for [the member].\n At the end of that time the [member] must click on an image that\n appears, to verify that he is human, and then the next banner ad appears\n automatically. The act of completing the 50 clicks takes the [member]\n 4.1 minutes per day.\n\n(Aplt. App. at 18-19 ¶ 31 (bracketed material added).)\n\n Each day that the Adpack purchaser completed the requisite number of clicks,\n\nthe purchaser qualified to share in Traffic Monsoon’s revenue earned during the\n\npreceding twenty-four hours. Ninety-nine percent of Adpack purchasers qualified to\n\nshare in at least some of Traffic Monsoon’s revenue. But “neither the website nor\n\nany other publicly available source of information informed the members how Traffic\n\nMonsoon split the revenue between itself and qualified Adpack holders.” (Id. 2068\n\n¶ 14.) Furthermore, because Traffic Monsoon “kept no accounting records[,] . . .\n\nthere are no readily available documents that describe precisely how the money was\n\ndistributed.” (Id. 2067 ¶ 13.) Typically an Adpack purchaser would earn $1 in\n\n\n\noperation, however, Traffic Monsoon increased this requirement to fifty clicks per\nday.\n 5\n\fshared revenue for each day that he made the requisite number of qualifying clicks.\n\nThat meant that in approximately fifty-five days an Adpack purchaser could reach the\n\nmaximum $55 return, recouping the $50 the member originally paid for the Adpack\n\nplus earning an additional $5 (a 10% return over the fifty-five days). When an\n\nAdpack purchaser reached the maximum $55 limit in revenue sharing, that member\n\ncould either use that money to purchase another $50 Adpack, or he could withdraw\n\nsome or all of his money.\n\n A member could buy as many $50 Adpacks as he wanted; some members\n\nowned hundreds or even thousands of Adpacks. Significantly, no matter how many\n\nAdpacks a member purchased, the member could qualify to share in Traffic\n\nMonsoon’s revenue on all of those Adpacks through a single four-minute session\n\nclicking on other members’ ads. So, for example, if a member bought 100 Adpacks\n\nfor $5,000 and spent just four minutes a day for fifty-five days clicking on other\n\nTraffic Monsoon members’ ads, the Adpack purchaser would earn back the original\n\n$5,000 he paid for all 100 Adpacks plus an additional 10% return of $500. If a\n\nmember consistently rolled over his Adpacks every fifty-five days, instead of cashing\n\nout, he would earn a 66% annual return on his original $50 purchase and in a year he\n\nwould have 166 Adpacks. In three years, he could earn “$25,080—over five times\n\nthe initial [$5,000] investment.” (Id. 2073-74 ¶ 30.)\n\n A second way a Traffic Monsoon member could earn money was to recruit\n\nother members. The recruiting member would earn a 10% commission on every\n\nadvertising service the recruited member purchased. This included Adpacks the\n\n 6\n\frecruit purchased, both with new money and by rolling over earnings from prior\n\nAdpacks. The district court noted that “for all $50 Adpacks that were purchased by a\n\nreferred member, Traffic Monsoon typically deposited $60 worth of credits in\n\nmember accounts: $55 into the purchasing member’s account over a 55-day period\n\n(so long as the member qualified [to share revenue]) and $5 into the referring\n\nmember’s account.” (Id. 2068-69 ¶ 17.)\n\n The district court found that, while “[s]ome individuals initially purchased\n\nAdpacks principally as a way to promote their online businesses[,] . . . for many\n\nmembers, the profits that could be reaped from the Adpacks themselves quickly\n\neclipsed this motive.” (Id. 2071 ¶ 23.) “Indeed, many members have not received or\n\nused the web visits and banner clicks purchased in the Adpack” (id. 2072 ¶ 24),\n\nbecause Traffic Monsoon only delivered about 10% of the clicks and website visits it\n\nsold as part of the Adpacks.\n\n Before buying an Adpack, the member had to agree with Traffic Monson that\n\nthe Adpack was not an “investment” and that Traffic Monsoon’s “past performance\n\ndoes not guarantee [the purchaser] the same result in the future.” (Id. 2069 ¶ 18\n\n(internal quotation marks omitted).) Traffic Monsoon’s website also included a\n\nlengthy explanation to its members as to why it was not operating a Ponzi scheme.\n\nThe website further stated that the revenue Traffic Monsoon shared with its\n\nqualifying members was earned from the sale of all of its services, and not just\n\nAdpacks. But the website did not explain that Adpacks actually made up more than\n\n\n\n 7\n\f98% of Traffic Monsoon’s sales. In fact, Traffic Monsoon misrepresented that its\n\nother advertising services were more popular than Adpacks.\n\n Adpacks became enormously popular. Between October 2014 and July 2016,\n\nwhen the SEC initiated this civil enforcement action, members paid Traffic Monsoon\n\n$173 million in new money to purchase 3.4 million Adpacks and purchased\n\napproximately 14 million additional Adpacks—for $700 million—by rolling over\n\nmoney earned from earlier Adpacks. During this same time period, members paid\n\nonly $2.9 million for all other Traffic Monsoon advertising services. Of the total\n\namount of $175.9 million in cash Traffic Monsoon took in over this period, it\n\ndistributed approximately $88 million to its members, “leaving a difference of $87.4\n\nmillion between what has been paid in by members and what they have taken out.”\n\n(Id. 2074 ¶ 32.)\n\n Ninety percent of Adpacks were purchased by people who live outside the\n\nUnited States. Adpacks were especially popular in poorer countries, including\n\nBangladesh, Venezuela, and Morocco.\n\n “A large majority of the financial transactions the members completed with\n\nTraffic Monsoon—both payments made to Traffic Monsoon and withdrawals from\n\nthe member’s [sic] account—were conducted through PayPal.” (Id. 2066 ¶ 6.) In\n\nJanuary 2016, because “PayPal became concerned about the enormous growth in the\n\nvolume of transactions between Traffic Monsoon and its members,” PayPal “froze\n\nTraffic Monsoon’s account.” (Id. 2074 ¶ 33.) Traffic Monsoon then began using\n\nother electronic payment processors. The PayPal freeze lasted until July 11, 2016.\n\n 8\n\fThe SEC brought this enforcement action two weeks later. During those interim two\n\nweeks, Scoville withdrew $23 million from Traffic Monsoon’s PayPal accounts, in\n\nincrements of $100,000, which is the maximum withdrawal PayPal allows at one\n\ntime. Scoville tried to withdraw another $10 million, but PayPal reversed those\n\ntransactions.\n\n “The receiver currently has between $50-$60 million in frozen Traffic\n\nMonsoon assets” (id. 2075 ¶ 37), and “[t]he current combined account balance of\n\nTraffic Monsoon members is $34.2 million” (id. 2075 ¶ 36). But members “typically\n\nhad relatively little money in their account because the members would continually\n\nreinvest it by purchasing new Adpacks.” (Id. 2072 ¶ 27.) “If the outstanding\n\nAdpacks currently owned by Traffic Monsoon members had matured, the [members’]\n\naccount balance would” have increased from $34 million to $278.1 million.” (Id.\n\n2075 ¶ 36.)\n\n II. THIS SEC ENFORCEMENT ACTION\n\n The SEC initiated this civil enforcement action on July 26, 2016, invoking the\n\ndistrict court’s jurisdiction under 15 U.S.C. §§ 77t, 77v, 78u, and 78aa. Relevant to\n\nthis appeal, the SEC contends that Defendants violated § 17(a)(1) and (a)(3) of the\n\nSecurities Act of 1933, which prohibit fraud or deception in the offer or sale of\n\nsecurities,2 and § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-\n\n\n2\n Section 17(a) provides, in relevant part:\n\n (a) Use of interstate commerce for purpose of fraud or deceit\n\n 9\n\f5(a) and (c), which prohibit fraud or deception “in connection with the purchase or\n\nsale of any security.”3 As relief, the SEC seeks to enjoin Defendants permanently\n\n\n It shall be unlawful for any person in the offer or sale of any securities\n . . . by the use of any means or instruments of transportation or\n communication in interstate commerce or by use of the mails, directly or\n indirectly\n\n (1) to employ any device, scheme, or artifice to defraud, or\n\n ....\n\n (3) to engage in any transaction, practice, or course of\n business which operates or would operate as a fraud or\n deceit upon the purchaser.\n\n15 U.S.C. § 77q(a)(1), (3).\n3\n Section 10 provides, in relevant part:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce or of the mails, or\n of any facility of any national securities exchange—\n\n ....\n\n (b) To use or employ, in connection with the purchase or\n sale of any security registered on a national securities\n exchange or any security not so registered, . . . any\n manipulative or deceptive device or contrivance in\n contravention of such rules and regulations as the\n Commission may prescribe as necessary or appropriate in\n the public interest or for the protection of investors.\n\n15 U.S.C. § 78j(b). The SEC promulgated its Rule 10b-5 under § 10(b)’s authority.\nSee Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 141-42 (2011).\nRelevant here, Rule 10b-5 provides:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce, or of the mails or\n of any facility of any national securities exchange,\n 10\n\ffrom engaging in this scheme, to impose civil penalties, and to disgorge all\n\nDefendants’ “ill-gotten gains” (Aplt. App. 32).\n\n At the time the SEC initiated this enforcement action, it obtained ex parte three\n\npreliminary orders from the district court 1) freezing Defendants’ assets;\n\n2) appointing a receiver over those assets and over Defendants’ business; and\n\n3) entering a temporary restraining order (“TRO”) prohibiting Defendants from\n\ncontinuing to operate their business. After an adversarial evidentiary hearing, the\n\ndistrict court made the TRO a preliminary injunction and denied Defendants’ motion\n\nto set aside the receivership. It is these two rulings that are at issue in this\n\ninterlocutory appeal.\n\n We grant the receiver’s motion to appear on appeal as an amicus. The receiver\n\nasserts that, although the notice of appeal named both Scoville and Traffic Monsoon\n\nas appellants, the receiver has not authorized Traffic Monsoon’s appeal.\n\n\n\n (a) To employ any device, scheme, or artifice to defraud,\n [or]\n\n ....\n\n (c) To engage in any act, practice, or course of business\n which operates or would operate as a fraud or deceit upon\n any person,\n\n in connection with the purchase or sale of any security.\n\n17 C.F.R. § 240.10b-5. Because “Rule 10b-5 . . . is coextensive with the coverage of\n§ 10(b),” we will refer primarily to § 10(b). S.E.C. v. Smart, 678 F.3d 850, 856 n.7\n(10th Cir. 2012) (internal quotation marks omitted).\n\n 11\n\fFurthermore, the attorney who filed the notice of appeal informed the district court\n\nthat, while he represented Scoville, the attorney did not represent Traffic Monsoon\n\nbecause the company was in receivership. For these reasons, Traffic Monsoon is not\n\na proper party to this appeal. Nevertheless, the district court recently authorized\n\nScoville “to appeal and advance arguments on behalf of Traffic Monsoon in th[is]\n\nappeal.” (Doc. 120.)4 Consequently, our rulings on this appeal similarly apply to\n\nTraffic Monsoon.\n\n III. STANDARD OF REVIEW\n\n This court reviews the district court’s order appointing a receiver, and refusing\n\nto set aside that order, for an abuse of discretion. See DeTar Distrib. Co. v. Tri-State\n\nMotor Transit Co., 379 F.2d 244, 252 (10th Cir. 1967). See generally SEC v. Vescor\n\nCapital Corp., 599 F.3d 1189, 1194, 1198 (10th Cir. 2010) (recognizing, in SEC civil\n\naction, district court’s equitable power to appoint a receiver and the court’s “broad\n\npowers and wide discretion to determine relief in an equity receivership” (internal\n\nquotation marks, alteration omitted)).\n\n We also review the district court’s decision to grant a preliminary injunction\n\nfor an abuse of discretion. See McDonnell v. City & Cty. of Denver, 878 F.3d 1247,\n\n1252 (10th Cir. 2018). “A district court abuses its discretion when it commits an\n\nerror of law or relies upon a clearly erroneous factual finding.” Id. (internal\n\nquotation marks omitted).\n\n\n4\n We GRANT Scoville’s motion to supplement the record with the district court’s\namended order.\n 12\n\f A movant is not entitled to a preliminary injunction unless he can\n show: (1) he is likely to succeed on the merits of his claim; (2) he will\n suffer irreparable harm if the injunction is denied; (3) his threatened\n injury outweighs the harm the grant of the injunction will cause the\n opposing party; and (4) if issued, the injunction will not adversely affect\n the public interest. Because the grant of a preliminary injunction is “an\n extraordinary remedy,” the movant must make a “clear showing” that he\n is entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555\n U.S. 7, 22 . . . (2008). Further, the movant must meet a heightened burden\n if he seeks a preliminary injunction, like the one [at issue here], that will\n alter the status quo. When “seeking such an injunction [the movant] must\n make a strong showing both with regard to the likelihood of success on\n the merits and with regard to the balance of the harms.” O Centro Espirita\n Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.\n 2004) (en banc) [(per curiam)].\n\nMcDonnell, 878 F.3d at 1252 (citations omitted) (bracketed material added).5 On\n\nappeal, Scoville focuses only on whether the SEC has made a sufficient showing of\n\nthe likelihood of its success on its antifraud claims.\n\n\n\n\n IV. DISCUSSION\n\n Scoville challenges both the preliminary injunction and the receivership\n\nprimarily on three grounds. First, he contends that the antifraud provisions of the\n\nfederal securities acts do not apply to offers to sell, and sales of, Adpacks to Traffic\n\nMonsoon members located outside the United States. The extraterritorial reach of a\n\n\n\n5\n The district court required the SEC in this case to make this heightened showing\nbecause the preliminary injunction at issue here did more than maintain the status\nquo, it also required Traffic Monsoon affirmatively to provide the receiver with any\ninformation she deemed necessary. We accept that same analysis for purposes of this\nappeal.\n 13\n\ffederal statute is a matter of congressional intent and Congress has clearly indicated,\n\nthrough the 2010 Dodd-Frank Act amendments to the securities laws, that the\n\nantifraud provisions apply when either significant steps are taken in the United States\n\nto further a violation of those antifraud provisions or conduct outside the United\n\nStates has a foreseeable substantial effect within the United States. Because Scoville\n\nengaged in conduct within the United States that has been shown likely to have\n\nviolated the securities laws, we conclude the antifraud provisions reach Traffic\n\nMonsoon’s sale of Adpacks outside the United States.\n\n Second, Scoville argues that Adpacks are not “securities” and so are not\n\nsubject to federal securities laws. We reject that argument because Adpacks meet the\n\nthree-part test for investment contracts, which qualify as securities regulated by\n\nfederal law.\n\n Lastly, Scoville contends that the SEC has failed to show it is likely to succeed\n\nin proving the elements of its antifraud claims and, in particular, cannot show that\n\nDefendants engaged in a fraudulent securities scheme with the requisite scienter. We\n\nreject those arguments because the SEC presented sufficient evidence that\n\nDefendants were likely operating a fraudulent scheme—a Ponzi scheme—and likely\n\ndoing so with the required scienter. For these reasons, explained in greater detail\n\nbelow, and because we conclude the remainder of Scoville’s arguments lack merit,\n\nwe affirm the district court’s rulings entering a preliminary injunction and refusing to\n\nset aside the receivership.\n\n\n\n 14\n\fA. The antifraud provisions reach Traffic Monsoon’s sales of, or offers to sell,\nAdpacks to purchasers located outside the United States\n\n Scoville first asserts that the antifraud provisions of the federal securities acts\n\ndo not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living\n\noutside the United States. That amounts to 90% of Traffic Monsoon’s Adpack sales.\n\n 1. Congress has provided that the antifraud provisions apply\n extraterritorially when significant steps are taken in the United States to\n further a violation or conduct occurring outside the United States has a\n foreseeable substantial effect within the United States\n\n Whether a federal statute applies to conduct outside the United States is a\n\nquestion of congressional intent. See Morrison v. Nat’l Australia Bank Ltd., 561\n\nU.S. 247, 255 (2010). There is a presumption that Congress intends a statute to apply\n\nonly within the United States, see id., unless Congress has “affirmatively and\n\nunmistakably” indicated that the statute should apply extraterritorially, RJR Nabisco,\n\nInc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). “When a statute gives no\n\nclear indication of an extraterritorial application, it has none.” Morrison, 561 U.S. at\n\n255.\n\n “Th[e] [Supreme] Court has established a two-step framework for deciding\n\nquestions of extraterritoriality.” WesternGeco LLC. v. ION Geophysical Corp., 138\n\nS. Ct. 2129, 2136 (2018). “The first step asks ‘whether the presumption against\n\nextraterritoriality has been rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).\n\n“If the presumption against extraterritoriality has not been rebutted, the second step\n\nof our framework asks ‘whether the case involves a domestic application of the\n\n\n\n 15\n\fstatute.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). If either step is satisfied,\n\nthe statute applies to the challenged conduct. See id.\n\n Here, we can resolve at step one the question of the extraterritorial reach of the\n\nantifraud provisions because it is clear that Congress “affirmatively and\n\nunmistakably” directed that those provisions apply extraterritorially in an\n\nenforcement action. Through the 2010 Dodd-Frank Act, Congress amended both the\n\n1933 and 1934 securities acts to state:\n\n The district courts of the United States and the United States courts\n of any Territory shall have jurisdiction of an action or proceeding brought\n or instituted by the Commission or the United States alleging a violation\n of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act]\n involving—\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; or\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n15 U.S.C. § 77v(c) (bracketed material added); see also id. § 78aa(b) (amended 1934\n\nSecurities Exchange Act providing federal district courts with “jurisdiction of an\n\naction or proceeding brought or instituted by the [SEC] or the United States alleging a\n\nviolation of the antifraud provisions of this chapter involving--(1) conduct within the\n\nUnited States that constitutes significant steps in furtherance of the violation, even if the\n\nsecurities transaction occurs outside the United States and involves only foreign\n\ninvestors; or (2) conduct occurring outside the United States that has a foreseeable\n\nsubstantial effect within the United States”).\n\n 16\n\f Scoville argues that, while Dodd-Frank amended these jurisdictional\n\nprovisions of the securities acts, Congress has not expressly stated that the antifraud\n\nprovisions of those securities acts apply extraterritorially. We reject that argument in\n\nlight of the specific context in which Congress enacted the 2010 jurisdictional\n\namendments as part of the Dodd-Frank Act. See Morrison, 561 U.S. at 265 (stating,\n\nin determining whether a statute applies extraterritorially, that “[a]ssuredly context\n\ncan be consulted”); see also RJR Nabisco, 136 S. Ct. at 2102; Kiobel v. Royal Dutch\n\nPetroleum Co., 569 U.S. 108, 119 (2013) (looking to “historical background against\n\nwhich the [statute at issue there] was enacted” to determine whether presumption\n\nagainst extraterritorial application had been rebutted).\n\n Historically, Congress, in originally enacting the federal securities acts in 1933\n\nand 1934, did not address the extraterritorial reach of the antifraud provisions of\n\nthose statutes. See Morrison, 561 U.S. at 255 (addressing specifically § 10(b)).\n\nNotwithstanding that fact, courts of appeals for over forty years applied the antifraud\n\nprovisions of those acts extraterritorially when “wrongful conduct occurred in the\n\nUnited States” or when conduct outside the United States had a “substantial effect in\n\nthe United States or upon United States citizens.” Id. at 257 (internal quotation\n\nmarks omitted); see also id. at 255-60. This became known as the conduct-and-\n\neffects test. Id. at 259; see also id. at 257-59. The courts of appeals treated\n\napplication of the conduct-and-effects test to decide when the federal securities acts\n\napplied extraterritorially as a matter of subject-matter jurisdiction. Id. at 253-54,\n\n257-60.\n\n 17\n\f In 2006, in a completely different context (a Title VII employment case), the\n\nSupreme Court addressed the difference between matters that implicate a federal\n\ncourt’s subject-matter jurisdiction and matters that go, instead, to proving an element\n\nof a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). Distinguishing\n\nbetween the two issues also turns on congressional intent. Id. at 514-15. In Arbaugh,\n\nthe Supreme Court held that the statutory provision restricting application of Title\n\nVII only to employers with fifteen or more employees was not a jurisdictional\n\nprerequisite but instead went to the merits of a Title VII claim. 546 U.S. at 503, 515-\n\n16. The Court reached that conclusion because Congress placed this fifteen-\n\nemployee requirement, not in the statute’s jurisdictional provision, but instead in the\n\ndefinitions section of the statute, id. at 514-15; “when Congress does not rank a\n\nstatutory limitation on coverage as jurisdictional, courts should treat the restriction as\n\nnonjurisdictional in character,” id. at 516.\n\n Returning to the specific question at issue here, the extraterritorial reach of the\n\nantifraud provisions of the federal securities laws, the Second Circuit, in 2008,\n\napplied a conduct-and-effects test to such a securities case in Morrison v. National\n\nAustralian Bank Ltd. to determine the district court’s subject-matter jurisdiction. 547\n\nF.3d 167, 170-71 (2d Cir. 2008). In doing so, however, the Second Circuit noted that\n\nCongress, in enacting the securities laws, had never addressed the extraterritorial\n\nreach of their antifraud provisions and “urge[d] that this significant omission receive\n\nthe appropriate attention of Congress . . . .” Id. at 170 & n.4. The Supreme Court\n\n\n\n 18\n\fgranted certiorari to review the Second Circuit’s Morrison decision. See 558 U.S.\n\n1047 (Nov. 30, 2009).\n\n In the meantime, Congress accepted the Second Circuit’s invitation and, in\n\nOctober 2009, amendments to the federal securities acts were proposed that would\n\neventually become § 929P(b) of the Dodd-Frank Act; those amendments added the\n\nextraterritorial language now found in 15 U.S.C. §§ 77v(c) and 78aa(b), quoted\n\npreviously in this opinion, see supra p. 16.\n\n The Supreme Court, however, decided Morrison before Congress finalized\n\nthose amendments. The specific question presented to the Supreme Court in\n\nMorrison was whether § 10(b), the antifraud provision of the 1934 Act, applied to\n\npurchases by Australians on the Australian stock exchange of shares in the National\n\nBank of Australia. 561 U.S. at 250-52. The Australian purchasers brought suit in the\n\nUnited States under American securities laws, alleging that the Australian Bank’s\n\nstock lost value after the Bank bought an American mortgage servicing company\n\nwhose owners had misrepresented the value of that company to the Australian Bank.\n\nId. at 251-53.\n\n In Morrison, the Supreme Court, relying on the Arbaugh line of cases, first\n\nheld, contrary to decades of circuit-level authority, that the question of whether\n\nfederal securities laws applied extraterritorially was not a matter of subject-matter\n\njurisdiction, but instead went to the merits of the claim. Id. at 253-54 (“[T]o ask\n\nwhat conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a\n\n\n\n 19\n\fmerits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power\n\nto hear a case.” (internal quotation marks omitted)).\n\n Second, Morrison held that, because Congress, in originally enacting § 10(b),\n\ndid not address whether that provision applied extraterritorially, § 10(b) did not apply\n\noutside the United States. Id. at 255. Morrison, therefore, concluded that the courts\n\nof appeals were wrong to apply their conduct-and-effects tests to determine when\n\n§ 10(b) applied outside the United States because § 10(b) simply did not apply\n\nextraterritorially. Id. at 255-65. Instead, focusing on the language of § 10(b), the\n\nCourt held that that antifraud provision only applied domestically; that is, to fraud\n\nonly “in connection with the purchase or sale of a security listed on an American\n\nstock exchange, and the purchase or sale of any other security in the United States.”6\n\nId. at 273.\n\n The Supreme Court issued Morrison on June 24, 2010. At that time, the\n\nproposed Dodd-Frank Act was before a joint congressional committee tasked with\n\nironing out differences in the House and Senate versions of that bill. One such\n\ndifference was that the House had included what eventually became § 929P(b),\n\naddressing as a jurisdictional matter the extraterritorial application of the antifraud\n\n\n6\n Morrison addressed § 10(b) of the 1934 Act, which makes it unlawful to use fraud\n“in connection with the purchase or sale of any security.” Morrison, 561 U.S. at 262\n(quoting 15 U.S.C. § 78j(b)). The 1933 Act, instead, makes it unlawful to use fraud\nin selling, or offering to sell, a security. See 15 U.S.C. § 77q(a)(1), (3). But\nMorrison noted that “[t]he same focus on domestic transactions is evident in the\nSecurities Act of 1933, enacted by the same Congress as the [1934] Exchange Act,\nand forming part of the comprehensive regulation of securities trading.” 561 U.S. at\n268 (citation omitted).\n 20\n\fprovisions, while the Senate had removed that proposed amendment. The day that\n\nthe Supreme Court issued Morrison was the final day that the joint committee\n\nconsidered the proposed Dodd-Frank Act. See SEC v. Gruss, 859 F. Supp. 2d 653,\n\n664 (S.D. N.Y. 2012). The committee published the final version of the bill several\n\ndays later, and it included § 929P(b). The Dodd-Frank Act was enacted into law on\n\nJuly 21, 2010, less than a month after Morrison.\n\n Morrison, then, contrary to forty years of circuit-level law, held that the\n\nquestion of the extraterritorial reach of § 10(b) did not implicate a court’s subject-\n\nmatter jurisdiction; instead, other provisions of the securities acts gave district courts\n\nsubject-matter jurisdiction to hear SEC enforcement actions generally. 561 U.S. at\n\n254-55 (citing 15 U.S.C. § 78aa). But Congress, in the Dodd-Frank Act, amended\n\nonly the jurisdictional sections of the securities laws to indicate that the antifraud\n\nprovisions applied extraterritorially when a version of the conduct-and-effects test is\n\nmet. The Dodd-Frank Act did not make any explicit revisions to the substantive\n\nantifraud provisions themselves. See generally U.S. SEC v. Chicago Convention\n\nCtr., LLC, 961 F. Supp. 2d 905, 910 (N.D. Ill. 2013) (recognizing that “the plain\n\nlanguage of the Section 929P(b) seems purely jurisdictional—particularly in light of\n\nits placement in the jurisdictional section of the Exchange Act—yet the\n\nCongressional intent behind that provision supports the conclusion that the provision\n\nis substantive”).\n\n Notwithstanding the placement of the Dodd-Frank amendments in the\n\njurisdictional provisions of the securities acts, given the context and historical\n\n 21\n\fbackground surrounding Congress’s enactment of those amendments, it is clear to us\n\nthat Congress undoubtedly intended that the substantive antifraud provisions should\n\napply extraterritorially when the statutory conduct-and-effects test is satisfied. We\n\nagree, then, with the district court, which stated:\n\n Although courts generally presume that Congress is familiar with the\n precedents of the Supreme Court when it enacts legislation, the close\n proximity between the date when Morrison was issued and the date when\n the language of Dodd-Frank was finalized, greatly undermines this\n presumption. It strains credulity to assume that legislators read Morrison\n on the last day that they met to negotiate the final version of a massive\n 850-page omnibus bill designed to overhaul large swaths of the United\n States financial regulations and consciously chose to enact Section\n 929P(b) against the background of the fundamental shift in securities law\n brought about by Morrison. Given this timing, the more reasonable\n assumption is that Morrison was issued too late in the legislative process\n to reasonably permit Congress to react to it.\n\n(Aplt. App. 2086-87.)\n\n This conclusion is bolstered by the title Congress gave this section of the\n\nDodd-Frank Act, “STRENGTHENING ENFORCEMENT BY THE COMMISSION.”\n\nDodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (July 21,\n\n2010), 124 Stat 1376. See generally Almendarez-Torres v. United States, 523 U.S.\n\n224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools\n\navailable for the resolution of a doubt about the meaning of a statute.”) (internal\n\nquotation marks omitted)). In another section, § 929Y, the Dodd-Frank Act directed\n\nthe SEC to “solicit public comment and thereafter conduct a study to determine the\n\nextent to which private rights of action under the antifraud provisions” of the 1934\n\nAct “should be extended” extraterritorially. We agree with the district court that this\n\n\n 22\n\fsuggests Congress believed it “had extended the SEC’s authority to bring an\n\n[antifraud] enforcement action in Section 929P(b).” (Aplt. App. 2089 (emphasis\n\nadded).) Furthermore, several members of Congress, including § 929P’s drafter,\n\nRepresentative Paul Kanjorski, stated that the purpose of that provision was to make\n\nclear that the antifraud provisions apply extraterritorially in enforcement actions.\n\n For all of these reasons, then, we conclude that Congress has “affirmatively\n\nand unmistakably” indicated that the antifraud provisions of the federal securities\n\nacts apply extraterritorially when the statutory conduct-and-effects test is met.\n\n 2. Because Dodd-Frank’s conduct-and-effects test is met here, the\n antifraud provisions apply to Defendants’ sales of, and offers to sell,\n Adpacks to customers located outside the United States\n\n Having determined that the antifraud provisions of the federal securities\n\nacts can apply extraterritorially when the statutory conduct-and-effect test is\n\nmet, we now apply that test to Traffic Monsoon’s sales of, and offers to sell,\n\nAdpacks to customers located outside the United States. The scope of that\n\nextraterritorial application turns on congressional intent; that is, “on the limits\n\nCongress has . . . imposed on the statute[s’] foreign application.” RJR\n\nNabisco, 136 S. Ct. at 2101. Here, Congress limited the extraterritorial\n\napplication of the antifraud provisions in enforcement actions to\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; [and]\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n 23\n\f15 U.S.C. § 77v(c); see also id. § 78aa(b).\n\n We agree with the district court that Defendants’ “‘conduct within the United\n\nStates . . . constitute[d] significant steps in furtherance of the violation’ of Rule 10b-5\n\nand Section 17(a). Mr. Scoville conceived and created Traffic Monsoon in the\n\nUnited States. Through Traffic Monsoon, he created and promoted the Adpack\n\ninvestments over the internet while residing in Utah.” (Aplt. App. 2091.) We add\n\nthat the servers housing the Traffic Monsoon website were physically located in the\n\nUnited States. For these reasons, the district court correctly held that the antifraud\n\nprovisions of the federal securities acts encompass Defendants’ sales of, and offers to\n\nsell, Adpacks to Traffic Monsoon members located outside the United States.\n\nB. Adpacks are “securities”\n\n Scoville next contends that Adpacks are not “securities” and therefore\n\nDefendants are not subject to federal securities laws. Like the district court, we\n\ndisagree.\n\n As an initial matter, Scoville argues that the question of whether Adpacks are\n\n“securities” implicates federal courts’ subject-matter jurisdiction. We disagree, for\n\nthe same reasons the Supreme Court in Morrison held that whether the statute applied\n\nextraterritorially was not a jurisdictional issue. See 561 U.S. at 251, 253-54 & n.3\n\n(distinguishing, in § 10(b) enforcement action, between provisions in federal\n\nsecurities statutes giving district courts subject-matter jurisdiction—the power to hear\n\na case—from questions of what conduct § 10(b) reaches, “which is a merits\n\n\n 24\n\fquestion”). Instead, the question of whether Adpacks are “securities” is a merits\n\ninquiry. See, e.g., Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 880-81,\n\n886 (10th Cir. 2016) (affirming dismissal of private claim under the 1934 Act for\n\nfailure to state a claim on which relief can be granted because plaintiffs failed to\n\nshow that the challenged transactions were “securities”).\n\n Answering that merits inquiry, we agree with the district court that Adpacks\n\nqualify as securities regulated under the 1933 and 1934 acts. “Congress enacted the\n\nSecurities Acts in response to ‘serious abuses in a largely unregulated securities\n\nmarket,’ and for the purpose of regulating ‘investments, in whatever form they are\n\nmade and by whatever name they are called.” SEC v. Shields, 744 F.3d 633, 641\n\n(10th Cir. 2014) (quoting Reves v. Ernst & Young, 494 U.S. 56, 60–61 (1990)).\n\n“Congress ‘painted with a broad brush’ in defining a ‘security’ in recognition of the\n\n‘virtually limitless scope of human ingenuity, especially in the creation of “countless\n\nand variable schemes devised by those who seek the use of the money of others on\n\nthe promise of profits. . . .”’” Id. (quoting Reves, 494 U.S at 60-61). Nevertheless,\n\n“‘Congress, in enacting the securities laws, did not intend to provide a broad federal\n\nremedy for all fraud.’” Id. at 642 (quoting Marine Bank v. Weaver, 455 U.S. 551,\n\n556 (1982)).\n\n\n\n\n 25\n\f The 1933 Act defines “security” to include an “investment contract,” 15\n\nU.S.C. § 77b(a)(1), and that is what the district court determined an Adpack is.7\n\nAlthough the Act did not further define “investment contract,” the Supreme Court did\n\nin SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the owner of a large\n\nFlorida citrus grove sold small pieces of the grove to the public to help finance the\n\ngrove’s further development. Id. at 294-95. The purchasers of these small parts of\n\nthe grove were “for the most part . . . non-residents of Florida. They [we]re\n\npredominantly business and professional people who lack the knowledge, skill and\n\nequipment necessary for the care and cultivation of citrus trees. They [we]re\n\nattracted by the expectation of substantial profits.” Id. at 296. Purchasers received\n\nthe deed to the small pieces of land they bought and the option to hire the seller or\n\nsome other company to cultivate and market the fruit grown on that particular piece\n\nof land, with the net proceeds to be paid to the land purchaser. Id. at 295-96.\n\nOwners of 85% of the pieces of land sold hired the grove owner to cultivate and\n\nmarket their sections of the grove. Id. at 295. Howey held that a purchaser’s “land\n\nsales contract, the warranty deed [he received] and the service contract together\n\nconstitute[d] an ‘investment contract,’” id. at 297 (bracketed material added), defined\n\nas “a contract, transaction or scheme whereby a person invests his money in a\n\n\n\n\n7\n Although the 1933 and 1934 Acts use “slightly different formulations” for defining\na “security,” the Supreme Court has, nevertheless treated those formulations “as\nessentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).\n 26\n\fcommon enterprise and is led to expect profits solely from the efforts of the promoter\n\nor a third party.” Id. at 298-99; see also id. at 297-301.\n\n “[T]o distinguish an investment contract from other commercial dealings, the\n\nHowey test has subsequently been broken down into three requirements: (1) an\n\ninvestment, (2) in a common enterprise, (3) with a reasonable expectation of profits\n\nto be derived from the entrepreneurial or managerial efforts of others.” Shields, 744\n\nF.3d at 643 n.7 (internal quotation marks omitted). In addressing the legal question\n\nof whether some transaction qualifies as an “investment contract,” see Thompson,\n\n732 F.3d at 1161, we disregard form over substance and focus on the “‘economic\n\nrealities underlying a transaction, and not on the name appended thereto.’” Shields,\n\n744 F.3d at 643 (quoting United Housing Found’n, Inc. v. Forman, 421 U.S. 837, 849\n\n(1975)). Here, Scoville contends—unsuccessfully—that the SEC failed to make an\n\nadequate showing as to any of the three Howey requirements and, therefore, the\n\ndistrict court erred in treating Adpacks as “investment contracts” subject to federal\n\nsecurities regulation.\n\n 1. An Adpack qualifies as an investment\n\n An Adpack is an “investment.” Just as the citrus grove owner in Howey was\n\n“offering something more than fee simple interests in land, something different from\n\na farm or orchard coupled with management services,” 328 U.S. at 299, so, too,\n\nTraffic Monsoon was offering its Adpack purchasers something more than just\n\nadvertising services. Adpacks also offered the purchaser an opportunity to share in\n\nTraffic Monsoon’s revenue. Just as the land purchasers in Howey “had no desire to\n\n 27\n\foccupy the[ir] land or to develop it themselves” but were instead “attracted solely by\n\nthe prospects of a return on their investment,” id. At 300, so too the vast majority of\n\n$50 Adpack purchasers bought Adpacks, not to receive the same advertising services\n\nthey could have bought ala carte for $10.95, but instead to have the opportunity to\n\nshare in Traffic Monsoon’s revenue and earn significant returns. We agree with the\n\ndistrict court that\n\n [t]he evidence clearly points to the fact that Traffic Monsoon’s explosive\n growth was driven by members purchasing and repurchasing Adpacks in\n order to obtain the incredible returns on their investment, not by intense\n demand for Traffic Monsoon’s [internet advertising] services. Indeed,\n many Adpack purchasers had no interest in the website visits Traffic\n Monsoon offered, and Traffic Monsoon only ever delivered a fraction of\n the clicks it promised to deliver. In short, the economic reality of the\n Adpack purchases is that they were investments.\n\n(Aplt. App. 2103 (bracketed material added).)\n\n Neither the fact that a few Adpack purchasers testified that they bought\n\nAdpacks for the advertising services, nor the fact that not every Adpack purchaser\n\nqualified to share revenue (although almost all of them did), prevents us from\n\ncharacterizing Adpacks as investments. See Howey, 328 U.S. at 300-01 (holding, in\n\nthe context of § 10(b), that Court’s conclusion that land sales and service contracts\n\namounted to an “investment contract” was “unaffected by the fact that some\n\npurchasers choose not to accept the full offer of an investment contract by declining\n\nto enter into a service contract with the” citrus grove owner).\n\n\n\n\n 28\n\f 2. An Adpack involves a common enterprise\n\n An Adpack is an investment in “a common enterprise.” Just as the land\n\npurchasers in Howey bought the opportunity “to share in the profits of a large citrus\n\nfruit enterprise managed and partly owned by” the citrus grove owners, 328 U.S. at\n\n299, so Adpack purchasers bought the opportunity to share in revenue derived from\n\nthe sale of all of Traffic Monsoon’s advertising services. The revenue in which\n\nAdpack purchasers could share, then, was generated from a common enterprise,\n\nTraffic Monsoon’s sale of internet advertising services.\n\n 3. An Adpack provides members with a reasonable expectation of profit\n derived from the entrepreneurial or management efforts of others\n\n Howey’s third requirement for an investment contract is that the investor “is\n\nled to expect profits solely from the efforts of the promoter or a third party.” 328\n\nU.S. at 298-99; see also Shields, 744 F.3d at 643 n.7 (applying this part of Howey’s\n\ninquiry to require that the consumer have “a reasonable expectation of profits to be\n\nderived from the entrepreneurial or managerial efforts of others” (internal quotation\n\nmarks omitted)).\n\n Scoville points out that, although the revenue Adpack purchasers share is\n\nderived from Defendants’ efforts to sell Traffic Monsoon’s advertising services, the\n\nreturns Adpack purchasers earn are also the result of purchasers’ own efforts in\n\nclicking on other members’ websites in order to qualify to share revenue. Although\n\nthe Supreme Court, in Howey, stated that the profits expected from an “investment\n\ncontract” should result “solely” from others’ efforts, 328 U.S. at 301, the Tenth\n\n\n 29\n\fCircuit has held that “[i]nvestments satisfy the third prong of the Howey test when\n\nthe efforts made by those other than the investor are the ones which affect\n\nsignificantly the success or failure of the enterprise.” Shields, 744 F.3d at 645\n\n(internal quotation marks omitted); see also Crowley v. Montgomery Ward & Co.,\n\n570 F.2d 875, 877 (10th Cir. 1975).\n\n That is the case here. Adpack purchasers expected Traffic Monsoon’s success\n\nto turn “significantly” on the company’s efforts to sell its advertising services. See\n\ngenerally Miller v. Cent. Chinchilla Grp., Inc., 494 F.2d 414, 417 (8th Cir. 1974) (“In\n\ndetermining whether the plaintiffs’ contributions were nominal or significant, the\n\nissue is not what efforts, in fact, were required of them. Rather, it is what efforts the\n\nplaintiffs were reasonably led to believe were required of them at the time they\n\nentered into the contracts.”). Assuming Adpack purchasers expected to contribute to\n\nsome degree in the delivery of those services by clicking on other members’\n\nwebsites, Adpack purchasers did not expect their own efforts to be significant. No\n\nmatter how many Adpacks a member owned, the member expected to qualify to share\n\nrevenue on all of his or her Adpacks by spending only four minutes a day clicking on\n\nup to fifty ads. Moreover, there is evidence that receiving clicks on one’s website or\n\ninternet ad was not the motivation for the vast majority of Adpack purchasers;\n\nearning a 10% return on their investment was.\n\n Scoville further argues that Adpacks cannot be “investment contracts” because\n\nthere was never a “guarantee” that qualified Adpack purchasers would receive a share\n\nof Traffic Monsoon’s revenue because Traffic Monsoon’s obligation to share its\n\n 30\n\frevenue was contingent on there being revenue to share. But neither were the citrus\n\ngrove purchasers in Howey guaranteed a return on their investment in the citrus crop.\n\n328 U.S. at 296. So long as a transaction satisfies Howey’s test for an “investment\n\ncontract,” “it is immaterial whether the enterprise is speculative or non-speculative.”\n\nId. at 301. To qualify as an “investment contract,” the purchaser just has to have a\n\n“reasonable expectation of profits.” Shields, 744 F.3d at 642 n.7, 643; see, e.g.,\n\nEdwards, 540 U.S. at 395; see also SEC v. Int’l Loan Network, Inc. 968 F.2d 1304,\n\n1308 (D.C. Cir. 1992) (rejecting argument that investment program could not be an\n\n“investment contract” because no return was guaranteed; stating that “[v]ery few\n\ninvestments ‘guarantee’ a return—all that Howey requires is a ‘reasonable\n\nexpectation of profits’” (quoting Forman, 421 U.S. at 852)). The evidence here\n\nsupported Adpack purchasers’ reasonable expectation—based on the representations\n\nmade to them—of sharing Traffic Monsoon’s revenue. Although Traffic Monsoon’s\n\nwebsite stated there was no guarantee that there would always be revenue for\n\nqualifying members to share, it does not appear that there was ever a time, before the\n\nPayPal freeze, when a qualifying member did not receive purported shared revenue.\n\n 4. Conclusion: Adpacks qualify as investment contracts\n\n For these reasons, then, the district court did not err in concluding that\n\nAdpacks meet Howey’s three-part test and, therefore, qualify as “investment\n\ncontracts” and, thus, as securities subject to regulation under the federal securities\n\nlaws.\n\n\n\n 31\n\fC. It is likely that the SEC can prove that Defendants’ conduct violated the\nantifraud provisions of federal securities laws\n\n Scoville asserts that the district court abused its discretion in determining that\n\nthe SEC can likely establish that Defendants violated the antifraud statutes. Scoville\n\ntakes aim at two requisite elements of Defendants’ liability.\n\n 1. Defendants were operating a Ponzi scheme\n\n The antifraud statutes apply to fraudulent schemes involving securities.8 The\n\ndistrict court held that the SEC will likely succeed in proving that Defendants were\n\ninvolved in such a fraudulent scheme because Defendants were operating a Ponzi\n\nscheme, which is “inherently deceptive because it generates a false appearance of\n\nprofitability by using money from new investors to generate returns for earlier\n\ninvestors.” (Aplt. App. 2099 (citing Mukamal v. Gen. Elec. Capital Corp. (In re\n\nPalm Beach Fin. Partners, L.P.), 517 B.R. 310, 346 (Bankr. S.D. Fla. 2013)).)\n\n Scoville counters that the SEC cannot prove that Defendants were operating a\n\nPonzi scheme. But there is strong evidence that that is exactly what Defendants were\n\ndoing.\n\n\n8\n More precisely, § 17(a)(1) prohibits “any device, scheme, or artifice to defraud” in\n“the offer or sale of any securities.” 15 U.S.C. § 77q(a)(1). Section 17(a)(3) also\napplies to “the offer or sale of any securities,” and prohibits “engag[ing] in any\ntransaction, practice, or course of business which operates or would operate as a\nfraud or deceit upon the purchaser.” Id. § 77q(a)(3). Section 10(b) addresses the use\nof “any manipulative or deceptive device or contrivance” “in connection with the\npurchase or sale of any security.” Id. § 78j(b). SEC Rule 10b-5(a) and (c) apply “in\nconnection with the purchase or sale of any security,” and prohibit using “any device,\nscheme, or artifice to defraud,” and “engag[ing] in any act, practice, or course of\nbusiness which operates or would operate as a fraud or deceit upon any person.” 17\nC.F.R. § 240.10b-5(a), (c).\n 32\n\f The Tenth Circuit has offered several different definitions of a Ponzi scheme,\n\nbut the district court captured the gist of those definitions in noting that “the central\n\ncharacteristic of a Ponzi scheme is that returns are not based upon any underlying\n\nbusiness activity. Instead, money from new investors is used to pay earlier\n\ninvestors.” (Aplt. App. 2097.) See Thompson, 732 F.3d at 1154 n.3; Wilcox, 691\n\nF.3d at 1173 n.2. In addition, in a Ponzi scheme often the “money contributed by\n\nlater investors generates artificially high dividends for the original investors, whose\n\nexample attracts even larger investments.” Wilcox, 691 F.3d at 1173 n.2.\n\n The district court did not abuse its discretion in determining that the SEC is\n\nlikely to prove Defendants were operating a Ponzi scheme. For every $50 Adpack it\n\nsold, Traffic Monsoon often had to pay out $55 to qualifying purchasers, and even\n\n$60 if the purchaser had been recruited by another Traffic Monsoon member. Traffic\n\nMonsoon paid these amounts from sales of new Adpacks; there was essentially no\n\nother business activity generating the revenue Traffic Monsoon was sharing with\n\nqualifying Adpack purchasers. Furthermore, Traffic Monsoon misrepresented to its\n\nAdpack purchasers that the revenue it was sharing came from sales of all of Traffic\n\nMonsoon’s other advertising services, which Traffic Monsoon falsely indicated were\n\nmore popular than its Adpacks. Thus, the record evidence would support finding that\n\nDefendants were offering the possibility of high rates of return on qualifying\n\nAdpacks and paying those returns using money from later Adpack sales. In light of\n\nthis evidence, it was likely the SEC will be able to show that Defendants were\n\n\n\n 33\n\foperating a Ponzi scheme and thus, be able to prove that Defendants used fraud or\n\ndeception to sell, or offer to sell, Adpacks.\n\n Scoville’s arguments to the contrary are unavailing. For example, although he\n\nreasserts his argument that Traffic Monsoon was only selling advertising services, as\n\npreviously discussed, the vast majority of Adpack purchasers were not seeking to buy\n\ninternet advertising services but were, instead, seeking a significant return on their\n\n$50-per-Adpack investment. Moreover, Defendants may still be operating a Ponzi\n\nscheme even if they have “some legitimate business operations.” Gillman v. Geis (In\n\nre Twin Peaks Fin. Servs., Inc.), 516 B.R. 651, 655 (Bankr. D. Utah 2014); see also\n\nMiller v. Wulf, 84 F. Supp. 3d 1266, 1272 & n.45 (D. Utah 2015).\n\n Neither does Scoville’s assertion—that before an Adpack purchaser could\n\nshare in Traffic Monsoon’s revenue, he had to qualify by clicking on other members’\n\nwebsites for four minutes on a given day and then there had to be revenue Traffic\n\nMonsoon generated in the preceding twenty-four hours—prevent the district court’s\n\ndetermination that Defendants were running a Ponzi scheme. Even though\n\nDefendants disclosed these requisite conditions for an Adpack purchaser to share in\n\nTraffic Monsoon’s revenue, there is evidence that Defendants deceived purchasers by\n\ntelling them that the revenue to be shared was generated by Traffic Monsoon’s other\n\n\n\n\n 34\n\fadvertising services that were more popular than Adpacks. Instead, essentially all of\n\nthe revenue to be shared was generated by the sale of additional Adpacks.9\n\n Lastly, Scoville argues that Defendants did not expressly limit returns on\n\nAdpacks only to the original purchasers. And he contends that none of its members\n\nhad ever suffered a loss. But the fact that this Ponzi scheme had not yet imploded\n\ndoes not mean Defendants were not running a Ponzi scheme.\n\n 2. Scienter\n\n In a related argument, Scoville next asserts that the SEC will not be able to\n\nestablish that Defendants acted with the requisite scienter. We disagree.\n\n Sections 10(b) and 17(a)(1) require proof that Defendants acted with the\n\n“intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 & n.5,\n\n695-97 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U.S 185, 194 & n.12\n\n(1976)). (No scienter is required under § 17(a)(3). See Aaron, 446 U.S. at 695-96.)\n\nThe district court correctly held that this scienter is likely established in this case by\n\nthe fact that Defendants were operating a Ponzi scheme, which again is “inherently\n\ndeceptive because it generates a false appearance of profitability by using money\n\nfrom new investors to generate returns for earlier investors.” (Aplt. App. 2099\n\n(citing In re Palm Beach Fin. Partners, 517 B.R. at 346).).10\n\n\n9\n In light of this crucial deception, we reject, at this point in the case, Scoville’s\nassertion that Defendants were not operating a Ponzi scheme because “Traffic\nMonsoon has fully disclosed everything to its members.” (Aplt. Br. 52.)\n10\n Scoville incorrectly asserts that the district court never addressed Defendants’\nscienter.\n 35\n\fD. Traffic Monsoon’s revenue generated from the sale of its other advertising\nservices is properly subject to the district court’s preliminary orders\n\n Lastly, Scoville asserts that, “[a]t a minimum, the Court should order the\n\nDistrict Court to release the [currently frozen] Traffic Monsoon funds that are\n\nadmittedly outside the scope of any of the SEC’s claims.” (Aplt. Br. 53 (bracketed\n\nmaterial added).) Scoville refers to the approximately $3 million that Traffic\n\nMonsoon earned from September 2014 through July 2016 from the sale of its internet\n\nadvertising services other than Adpacks. But it is not clear, as Scoville asserts, that\n\nthese other sales are “outside the scope of any of the SEC’s claims.” Id. The\n\nrevenue to be shared with qualifying Adpack purchasers was generated from the sale\n\nof all of Traffic Monsoon’s advertising services. Further, Traffic Monsoon had no\n\naccounting records; its revenue apparently was pooled together and Adpack\n\npurchasers were paid from that pool. In light of this evidence, Scoville has not\n\nshown that the district court abused its discretion in preliminarily freezing all of\n\nTraffic Monsoon’s funds and placing them in the receivership.11\n\n V. CONCLUSION\n\n For the foregoing reasons, we AFFIRM in all respects the district court’s\n\nchallenged preliminary decisions in this civil enforcement action. Although early in\n\n\n\n\n11\n The issue of whether Scoville should personally be liable under the antifraud\nprovisions has not been adequately raised before us, nor adequately preserved below.\nAccordingly, we decline to address that issue.\n 36\n\fthis civil enforcement action, the SEC has established the likelihood that it will\n\nsucceed on its antifraud claims against Defendants.12\n\n\n\n\n12\n Once our mandate has issued, the Court will direct the parties to address the status\nof the related appeal, No. 18-4038.\n 37\n\f17-4059, SEC v. Traffic Monsoon LLC\n[END_CASE]", "role": "user" } ]
4,584,360	Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gustavo Berrospe; Reyes Cabriales; Sergio Escobedo ; Jason Head; Nick Hinojos; Robert G. Hitzman; Michael Lopez; Jose Rodriguez; Sergio A. Rojo; Richard Tenorio; Cesar Torres ; Grant Willis; Harold Brown; Rene Carrillo; Henry Nez, Jr.; Kurt Johnson; Jesus Aguilar-Murillo; Martin F. Alvarez; Arthur Archuleta; Enrique Corona; Ronald Hubbard ; Andrew M. Lugo; Henry Lujan ; David Carr; D. Jeremiah Cordova; Kevin Charvea; Nathan Espalin; Levi Gutierrez; Dennis Moore; Robert Moreno ; Levi Olivas; Thomas D. Payne; Bryan Wheeler, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants, v. Jason DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in His Individual Capacity, Defendant-Appellant/Cross-Appellee and Celina Bussey, Secretary of the New Mexico Department of Workforce Solutions, in Her Individual Capacity, Defendant/Cross-Appellee.	Cummings v. Dean	2019-01-24	17-2072 & 17-2079	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, Holmes, Eid", "parties": "", "opinions": [{"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n January 24, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nRANDY CUMMINGS; CRUZ\nGALLEGOS; ROBERT J. GARCIA;\nRICHARD GONZALES; ELOY A.\nJARAMILLO; DAVID\nLARRANAGA; JOSEPH LOPEZ;\nRICK LOPEZ; DAVID MONTANO;\nANGELO RINALDI; CHRIS\nSWEENEY; JOSH TILLINGHAST;\nTOMAS TRUJILLO; JEFFREY S.\nWADE; JOSHUA HOSELTON;\nCHARLES W. LEES; JAIME\nMARQUEZ; ROBERT MENDOZA;\nARMANDO ANCHONDO;\nGUSTAVO BERROSPE; REYES\nCABRIALES; SERGIO ESCOBEDO;\nJASON HEAD; NICK HINOJOS;\nROBERT G. HITZMAN; MICHAEL\nLOPEZ; JOSE RODRIGUEZ;\nSERGIO A. ROJO; RICHARD\nTENORIO; CESAR TORRES;\nGRANT WILLIS; HAROLD BROWN;\nRENE CARRILLO; HENRY NEZ,\nJR.; KURT JOHNSON; JESUS\nAGUILAR-MURILLO; MARTIN F.\nALVAREZ; ARTHUR ARCHULETA;\nENRIQUE CORONA; RONALD\nHUBBARD; ANDREW M. LUGO;\nHENRY LUJAN; DAVID CARR; D.\nJEREMIAH CORDOVA; KEVIN\nCHARVEA; NATHAN ESPALIN;\nLEVI GUTIERREZ; DENNIS\nMOORE; ROBERT MORENO; LEVI\nOLIVAS; THOMAS D. PAYNE;\nBRYAN WHEELER, on behalf of\nthemselves and all others similarly\n\f situated,\n\n Plaintiffs - Appellees/Cross-\n Appellants,\n v. Nos. 17-2072 & 17-2079\n JASON DEAN, as the Director of the\n Labor Relations Division of the New\n Mexico Department of Workforce\n Solutions, in his individual capacity,\n\n Defendant - Appellant/Cross-\n Appellee\n\n and\n\n CELINA BUSSEY, Secretary of the\n New Mexico Department of Workforce\n Solutions, in her individual capacity,\n\n Defendant/Cross-Appellee.\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:16-CV-00951-JAP-KK)\n\n\nThomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.\nLewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall\nJ. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and\nSean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),\nfor Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.\n\nShane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),\nYoutz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees\n/Cross-Appellants.\n\n\nBefore LUCERO, HOLMES, and EID, Circuit Judges.\n\n 2\n\fHOLMES, Circuit Judge.\n\n\n Jason Dean, director of the Labor Relations Division of the New Mexico\n\nDepartment of Workforce Solutions (“DWS”), raises this appeal from the district\n\ncourt’s denial of qualified immunity against the claim that he violated Plaintiffs’\n\nconstitutional rights to substantive due process by failing to issue prevailing rates\n\nfor wages and fringe benefits as required by New Mexico law.\n\n In the action below, Plaintiffs, individuals who worked on public works\n\nprojects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of\n\nthemselves and others similarly situated, alleging that Director Dean and Celina\n\nBussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive\n\ndue-process rights by failing to determine prevailing rates for wages and fringe\n\nbenefits in contravention of the New Mexico Public Works Minimum Wage Act\n\n(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a\n\nresult of this failure, from 2009 to 2015 they did not receive the rates to which\n\nthey were entitled under the Act.\n\n Defendants filed a motion to dismiss, claiming qualified immunity. The\n\ndistrict court granted it in part and denied it in part. Specifically, the district\n\ncourt granted the motion in its entirety as to Secretary Bussey, and as to\n\nPlaintiffs’ procedural due-process claim against Director Dean. However, the\n\n\n 3\n\fcourt denied the motion with respect to Director Dean on Plaintiffs’ substantive\n\ndue-process claim.\n\n Both parties now appeal from the district court’s ruling. In Case No. 17-\n\n2072, Director Dean appeals from the court’s denial of qualified immunity as to\n\nPlaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs\n\ncross-appeal the district court’s dismissal of (1) their claims against Secretary\n\nBussey, and (2) their claim against Director Dean for violation of their procedural\n\ndue-process rights.\n\n For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.\n\n17-2079, for lack of jurisdiction, and reverse and remand the district court’s\n\ndenial of qualified immunity as to Director Dean on Plaintiffs’ substantive\n\ndue-process claim in Case No. 17-2072.\n\n I\n\n We first present the state statutory context for Plaintiffs’ claims and then\n\nreview the relevant facts.\n\n A\n\n Every contract for public works in New Mexico in excess of\n\n$60,000—including those involving construction and demolition—is required to\n\nstate the minimum wages and fringe benefits for all tradespeople that work on a\n\nparticular project. The director of the Labor Relations Division of DWS (“the\n\ndirector”) is tasked with publishing a schedule of minimum wages and fringe\n\n 4\n\fbenefits for such laborers and mechanics. Generally, Plaintiffs are individuals\n\nwho worked on public-works projects in New Mexico during the three years prior\n\nto the date of the filing of their lawsuit on August 23, 2016.\n\n Prior to 2009, § 13-4-11(B) of the Act provided:\n\n [The director] shall conduct a continuing program for the\n obtaining and compiling of wage-rate information and shall\n encourage the voluntary submission of wage-rate data by\n contractors, contractors’ associations, labor organizations,\n interested persons and public officers. Before making a\n determination of wage rates for any project, the director shall\n give due regard to the information thus obtained. Whenever the\n director deems that the data at hand are insufficient to make a\n wage determination, the director may have a field survey\n conducted for the purpose of obtaining sufficient information\n upon which to make [a] determination of wage rates. Any\n interested person shall have the right to submit to the director\n written data, views and arguments why the wage determination\n should be changed.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act\n\nwas amended to state:\n\n The director shall determine prevailing wage rates and prevailing\n fringe benefit rates for respective classes of laborers and\n mechanics employed on public works projects at the same wage\n rates and fringe benefit rates used in collective bargaining\n agreements between labor organizations and their signatory\n employers that govern predominantly similar classes or\n classifications of laborers and mechanics for the locality of the\n public works project and the crafts involved; provided that:\n\n (1) if the prevailing wage rates and prevailing fringe benefit\n rates cannot reasonably and fairly be determined in a\n locality because no collective bargaining agreements exist,\n the director shall determine the prevailing wage rates and\n prevailing fringe benefit rates for the same or most similar\n\n 5\n\f class or classification of laborer or mechanic in the nearest\n and most similar neighboring locality in which collective\n bargaining agreements exist;\n\n (2) the director shall give due regard to information obtained\n during the director’s determination of the prevailing wage\n rates and the prevailing fringe benefit rates made pursuant\n to this subsection;\n\n (3) any interested person shall have the right to submit to the\n director written data, personal opinions and arguments\n supporting changes to the prevailing wage rate and\n prevailing fringe benefit rate determination; and\n\n (4) prevailing wage rates and prevailing fringe benefit rates\n determined pursuant to the provisions of this section shall\n be compiled as official records and kept on file in the\n director’s office and the records shall be updated in\n accordance with the applicable rates used in subsequent\n collective bargaining agreements.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009\n\nAmendments”].\n\n The 2009 Amendments had the primary effect of requiring the director to\n\ndetermine the prevailing rates based on the wage rates and fringe-benefit rates\n\nused in collective bargaining agreements (“CBAs”), as opposed to the earlier\n\nversion of the statute’s mandate to simply collect data for the “purpose of\n\nobtaining sufficient information upon which to make [a] determination of wage\n\nrates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.\n\nat 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).\n\n B\n\n\n 6\n\f By April 2011—almost two years after the 2009 Amendments came into\n\nforce—the director still had not set prevailing-wage rates according to the CBAs.\n\nThe New Mexico Building and Construction Trades Council (“NMBCTC”), “an\n\nalliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &\n\nConstr. Trades Council v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a\n\nPetition for Writ of Mandamus in the New Mexico Supreme Court requesting that\n\nthe court compel the director to set prevailing wage and prevailing benefit rates in\n\naccordance with relevant CBAs. The New Mexico Supreme Court denied the\n\nwrit, but did so on the basis of a representation by the DWS secretary’s (“the\n\nsecretary”) counsel that the secretary would set new rates within four or five\n\nmonths. See id. (quoting counsel’s statement during oral arguments in 2011: “I\n\nwould say [setting the rates] could conceivably be done in four or five months,\n\nwhich I don’t think is unreasonable, especially since the secretary has assured me,\n\nand I’m assuring the Court, that she’s intent on getting this done. I don’t think it\n\nrequires a writ of mandamus to get it done. But, whatever the Court desires, I’m\n\nconfident she’ll get it done.”).\n\n Despite this assurance from the secretary’s counsel, the secretary did not\n\nset new prevailing wage or prevailing benefit rates, even though in 2012 she\n\noversaw the promulgation of new regulations and the amendment of others as\n\nrequired by the Act. Id. at 1214–15. The NMBCTC challenged these new\n\nregulations before the New Mexico Labor and Industrial Commission (“LIC”).\n\n 7\n\fTypically, a challenge to a new regulation filed with the LIC stays the\n\nimplementation of that regulation pending resolution of the challenge, see N.M.\n\nC ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the\n\nautomatic stay if necessary to allow the DWS to proceed with determining new\n\nprevailing rates:\n\n Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives\n its right to stay the effectiveness of the new rules through the\n filing of this appeal as those rules relate to the determination of\n new prevailing rates to replace the rates currently in effect. . . .\n Appellant desires the Department to update the prevailing rates\n in some manner as soon as possible given that the current rates\n are based on 2009 data and have not been updated for more than\n two years. If necessary, Appellant requests the Commission to\n waive the automatic stay as herein described as well.\n\nAplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC\n\ndenied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the\n\nstate district court. The LIC did not act to lift the automatic stay at any point\n\nduring these proceedings.\n\n While the appeal to the state district court was pending, and in light of the\n\ndirector’s continued failure to determine updated rates, the NMBCTC filed a\n\nsecond Petition for Writ of Mandamus in the New Mexico Supreme Court in\n\n2015. The NMBCTC again requested that the New Mexico Supreme Court order\n\nthe director to determine the rates as required under the Act. The court this time\n\ngranted the writ, stating:\n\n\n\n\n 8\n\f We hold that under the Act the Director has a mandatory,\n nondiscretionary duty to set the same prevailing wage and\n prevailing benefit rates as those negotiated in applicable CBAs\n and that the Director’s failure to do so violates the Act. We\n therefore issue a writ of mandamus ordering the Director to\n comply with the Act and set rates in accordance with CBAs as\n required under the Act within thirty days of the issuance of this\n opinion.\n\nDean, 353 P.3d at 1214.\n\n C\n\n Plaintiffs filed the present suit in federal court alleging that they suffered\n\nfinancial harm due to Defendants’ failure to determine the prevailing rates in\n\naccordance with the 2009 Amendments. Specifically, they allege that the wages\n\nand benefits they received, which were based on the pre-2009 Amendment\n\ndeterminations, “were less than would have been received had Defendants issued\n\nprevailing wage rate and prevailing fringe benefit determinations in accordance\n\nwith the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,\n\ndated Aug. 23, 2016).\n\n Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),\n\nDefendants sought judgment on the pleadings with respect to Plaintiff’s amended\n\ncomplaint—the operative complaint for our purposes—on qualified-immunity\n\ngrounds. The district court granted the motion in its entirety with respect to\n\nSecretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative\n\nlink’ demonstrating that Bussey authorized or approved of Dean’s noncompliance\n\n\n 9\n\fwith the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 614 F.3d 1185,\n\n1200–01 (10th Cir. 2010)).\n\n The court then considered Plaintiffs’ constitutional claims against Director\n\nDean. With respect to the procedural due-process claim, the court first\n\ndetermined that Plaintiffs had a protected property interest in CBA-level rates\n\nunder the Act, giving rise to restrictions on the director’s discretion in\n\ndetermining prevailing rates. However, the court noted that “more is\n\nrequired—Plaintiffs must show that they were deprived of the [property] interest\n\nwithout an adequate process by which they could obtain review of the\n\ndeprivation.” Id. at 160 (emphasis added). The court then stated that Plaintiffs\n\nfailed to establish that the processes available to challenge the director’s inaction\n\nwere constitutionally inadequate, in part because Plaintiffs did “not allege\n\nanywhere in the Complaint that they lacked the opportunity to challenge the 2009\n\nrates used by the Director.” Id. at 160–61. Accordingly, the court dismissed the\n\nprocedural due-process claim against Director Dean.\n\n The district court denied Defendants’ motion to dismiss Plaintiffs’\n\nsubstantive due-process claim against Director Dean, however. The court\n\nreasoned that the failure to set new rates, despite the assurance provided by the\n\nsecretary’s counsel during oral arguments before the New Mexico Supreme Court,\n\nwas sufficient to show that the director deliberately and arbitrarily deprived\n\nPlaintiffs of a protected property right. Furthermore, the court stated the director\n\n 10\n\fviolated clearly-established law by depriving Plaintiffs of the wages and benefits\n\nto which they were entitled under the Act. According to the court, Plaintiffs’\n\nright to CBA-based wages and benefits was clearly established by the statute\n\nitself given that the plain language of the 2009 Amendments was susceptible to\n\nonly one reading—“that it guarantees that [the] minimum wage and benefit rates\n\nmust be equivalent to the rates negotiated in CBAs.” Id. at 166.\n\n Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their\n\nclaims against Secretary Bussey and their procedural due-process claim against\n\nDirector Dean.\n\n II\n\n As in every matter, we must consider whether we have jurisdiction over all\n\naspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,\n\n762 F.3d 1016, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of\n\nour subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 550 F.3d\n\n1004, 1009 (10th Cir. 2008))).\n\n A\n\n With respect to Director Dean’s appeal in Case No. 17-2072, we exercise\n\njurisdiction over the district court’s denial of his qualified-immunity defense\n\npursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\n\n(“[T]his Court has been careful to say that a district court’s order rejecting\n\nqualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final\n\n 11\n\fdecision’ within the meaning of § 1291.”); accord Brown v. Montoya, 662 F.3d\n\n1152, 1162 (10th Cir. 2011).\n\n B\n\n Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less\n\nclear. We ultimately conclude that we do not have jurisdiction to hear this\n\nappeal.\n\n We normally lack jurisdiction over a partial dismissal of a complaint\n\nbecause such dismissals do not constitute final, appealable decisions under\n\n§ 1291. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.\n\n2002) (“Because the dismissal . . . adjudicated fewer than all the claims and\n\nliabilities of all the parties, it was not a final appealable order . . . .”). However,\n\nthe discretionary doctrine of pendent appellate jurisdiction provides an exception\n\nto this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and\n\nnonappealable lower court decision that overlaps with an appealable decision.”\n\nCox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of\n\nWynnewood, 57 F.3d 924, 929 (10th Cir. 1995)).\n\n Our exercise of pendent jurisdiction is “only appropriate” in either of two\n\nscenarios: (1) “when ‘the otherwise nonappealable decision is inextricably\n\nintertwined with the appealable decision,’” or (2) “where review of the\n\nnonappealable decision is necessary to ensure meaningful review of the\n\nappealable one.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th\n\n 12\n\fCir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915\n\n(10th Cir. 2008)).\n\n Plaintiffs face several obstacles in establishing pendent jurisdiction over\n\ntheir cross-appeal. First, the exercise of pendent jurisdiction is generally\n\ndisfavored as applied to cases in which primary appellate jurisdiction is based on\n\nthe denial of qualified immunity. See Cox, 800 F.3d at 1255; accord Bryson v.\n\nGonzales, 534 F.3d 1282, 1285–86 (10th Cir. 2008). After all, the collateral order\n\ndoctrine, used to appeal from denials of qualified immunity, “is premised on the\n\nability to decide the qualified immunity issue ‘in isolation from the remaining\n\nissues of the case,’” making it “hard to reconcile” with pendent jurisdiction.\n\nBryson, 534 F.3d at 1285 (quoting Mitchell v. Forsyth, 472 U.S. 511, 529 n.10\n\n(1985)).\n\n Moreover, Plaintiffs’ briefing does not adequately support their assertion\n\nthat we may exercise pendent jurisdiction over their claims. And it is beyond\n\nperadventure that it is Plaintiffs’ burden to make such a jurisdictional showing.\n\nSee, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)\n\n(“Where an appellant fails to lead, we have no duty to follow. It is the\n\nappellant’s burden, not ours, to conjure up possible theories to invoke our legal\n\nauthority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536,\n\n542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists\n\nof a single conclusory sentence found in, respectively, their opening and reply\n\n\n 13\n\fbriefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,\n\nassert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1\n\nPlaintiffs present no analysis or argument to support either acceptable basis for\n\ngranting relief—viz., that their claims on cross-appeal are “inextricably\n\nintertwined” with the director’s appeal, or that consideration of their cross-appeal\n\nis “necessary for a full assessment of the appealable issue.” Crowe & Dunlevy,\n\n640 F.3d at 1148 (quoting Sevenoaks, 545 F.3d at 915). 2 By providing us with\n\n\n 1\n To avoid confusion in this consolidated appeal and cross-appeal, we\nrefer to the parties’ briefs as follows:\n\n• Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.\n• Appellees’ Principal and Response Brief = Pls.’ Resp. Br.\n• Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s\n Response and Reply Brief = Defs.’ Reply Br.\n• Appellees’ Reply Br. = Pls.’ Reply Br.\n 2\n Rather, Plaintiffs assert without analysis that this court “has\npend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma\nCity, 958 F.2d 1506 (10th Cir. 1992), a case involving a number of appeals\nrelating to a civil-rights action brought by a former city employee against the city\nand city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent\njurisdiction over a cross-appeal from an interlocutory appeal of a denial of\nqualified immunity, concluding that the pendent claim—an appeal from the\ndistrict court’s determination that the plaintiff did not have a property interest in\ncontinued employment with the city—involved issues that were “factually and\nlegally intertwined with the [non-pendent] issues on appeal” that the city officials\nraised. Primas, 958 F.2d at 1512. To be sure, the cases that the Primas court\nrelied upon in coming to this conclusion employed the aforementioned pendent-\njurisdiction framework: they considered whether the appeals were inextricably\nintertwined or whether reviewing the pendent issue was required to adequately\nassess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 894 F.2d\n1318, 1320 (Fed. Cir. 1990); Barrett v. United States, 798 F.2d 565, 571 (2d Cir.\n1986). As such, by relying on Primas, Plaintiffs do point us in the direction of\n (continued...)\n\n 14\n\fbare assertions rather than analytical guidance, Plaintiffs effectively ask us to\n\n“make arguments for [them] that [they] did not make in [their appellate] briefs,”\n\nwhich we “will not” do. 3 Cox, 800 F.3d at 1256 (quoting O’Neal v. Ferguson\n\nConstr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001)).\n\n Finally, even were we to overlook Plaintiffs’ failure to argue within the\n\npendent-jurisdiction framework, we would conclude that their claims do not\n\npresent either of the two scenarios where pendent jurisdiction may be\n\nappropriately exercised. With respect to Plaintiffs’ appeal of the district court’s\n\ndismissal of all claims against Secretary Bussey, the relevant question on appeal\n\nis whether Plaintiffs’ amended complaint adequately identified an “affirmative\n\nlink” between Secretary Bussey and the alleged deprivations in this case. Pls.’\n\nResp. Br. at 26. It is manifest that this question is not “inextricably intertwined”\n\nwith the appealable issue before us, i.e., whether Director Dean is entitled to\n\nqualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &\n\nDunlevy, 640 F.3d at 1148 (“A pendent claim may be considered ‘inextricably\n\n\n\n 2\n (...continued)\nthe required analysis. But Plaintiffs do not actually apply that analysis to the\nfacts of this case, and we will not do it for them.\n 3\n The director did not address pendent jurisdiction in his briefing.\nUnlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,\nhowever, the director’s “silence on the matter is of no moment,” Cox, 800 F.3d\nat 1257 n.13, as we have an independent obligation to inquire into our own\njurisdiction regardless of whether it is challenged, see United States v. Battles,\n745 F.3d 436, 447 (10th Cir. 2014).\n\n 15\n\fintertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the\n\ncourt on interlocutory appeal—that is, when the appellate resolution of the\n\ncollateral appeal necessarily resolves the pendent claim as well.’” (quoting\n\nMoore, 57 F.3d at 930)). Nor is appellate review of this question “necessary to\n\nensure meaningful review,” id. (quoting Sevenoaks, 545 F.3d at 915), of the issues\n\npresented in Director Dean’s qualified-immunity appeal, as evidenced by our\n\nanalysis of those issues, infra. See Cox, 800 F.3d at 1257 (“[W]e can\n\nundertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff\n\nGlanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)\n\nwithout exercising pendent jurisdiction over the official-capacity claim.”). As\n\nwas the case in Cox, in resolving the non-pendent appeal, “we [are] not required\n\nto decide the core issues implicated” in this ostensibly pendent matter, leaving us\n\nwith “grave doubt that there would be any appropriate basis for our exercise of\n\npendent jurisdiction.” Id.\n\n Our jurisdiction over Plaintiffs’ appeal from the dismissal of their\n\nprocedural due-process claim against Director Dean proves to be a closer call, but\n\nour conclusion is the same. It is axiomatic that procedural and substantive\n\ndue-process claims require distinct analyses, undermining the notion that this\n\npendent claim and the appealable claim are inextricably intertwined or that we\n\nmust review the procedural claim in order to adequately address the substantive\n\ndue-process claim that is properly before us. See Cleveland Bd. of Educ. v.\n\n\n 16\n\fLoudermill, 470 U.S. 532, 541 (1985) (“The point is straightforward: the Due\n\nProcess Clause provides that certain substantive rights—life, liberty, and\n\nproperty—cannot be deprived except pursuant to constitutionally adequate\n\nprocedures. The categories of substance and procedure are distinct. Were the\n\nrule otherwise, the Clause would be reduced to a mere tautology.”); Brown, 662\n\nF.3d at 1172 (noting that a judicial decision in “a procedural due process case . . .\n\ncannot support a clearly established substantive due process right” (citation\n\nomitted)); Brown, 662 F.3d at 1172 n.16 (“Insofar as Mr. Brown claims a\n\nsubstantive due process violation based on Officer Montoya’s placing him in the\n\nsex offender probation unit and directing him to register as a sex offender without\n\na hearing, Mr. Brown confuses substantive due process with procedural due\n\nprocess.”); United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (“Unlike\n\nprocedural due process, substantive due process protects a small number of\n\n‘fundamental rights’ from government interference regardless of the procedures\n\nused.”); see also Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir.\n\n2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process\n\nClause] as guaranteeing not only certain procedures when a deprivation of an\n\nenumerated right takes place (procedural due process), but also as guaranteeing\n\ncertain deprivations won’t take place without a sufficient justification\n\n(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899\n\n(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in\n\n\n 17\n\fits opinion and order whether it considered a procedural due process claim, a\n\nsubstantive due process claim, or both. This omission is relevant because the\n\ncourt appeared to inject the more demanding ‘fundamental rights and liberties’\n\nanalysis from the substantive due process sphere into the ‘liberty interest’\n\nanalysis that pertains to the procedural due process inquiry.”).\n\n And though there is often some overlap between the two analyses when\n\nsubstantive and procedural due-process claims are raised together based on the\n\nsame facts, see Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (“Though\n\nit is sometimes helpful, as a matter of doctrine, to distinguish between substantive\n\nand procedural due process, the two concepts are not mutually exclusive, and\n\ntheir protections often overlap.” (quoting Albright v. Oliver, 510 U.S. 266, 301\n\n(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’\n\npendent action challenges the district court’s conclusion that there were adequate\n\nprocedural protections that Plaintiffs failed to invoke, whereas the non-pendent\n\nappeal challenges the court’s finding that the director’s actions shocked the\n\nconscience and violated clearly-established federal law. These considerations are\n\nnot inextricably intertwined, and review of the pendent action is not required for a\n\nmeaningful analysis of the non-pendent appeal. Indeed, the district court’s\n\nanalysis and even the parties’ briefing treat the two issues without overlap. See\n\nAplt.’s App. at 159–66; cf. Cox, 800 F.3d at 1257.\n\n\n\n\n 18\n\f Thus, given our general disfavor of pendent jurisdiction in the qualified-\n\nimmunity context, see Bryson, 534 F.3d at 1285–86, Plaintiffs’ dereliction of their\n\nburden to establish our jurisdiction over their cross-appeal, and our conclusion\n\nthat neither of the two accepted rationales for exercising pendent jurisdiction are\n\npresent here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-\n\nappeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for\n\nlack of jurisdiction.\n\n\n\n III\n\n We next turn to the issue properly before us on appeal: whether the district\n\ncourt erred in denying Director Dean qualified immunity against Plaintiffs’\n\nsubstantive due-process claim. We first lay out the familiar motion-to-dismiss\n\nand qualified-immunity standards of review before concluding that the district\n\ncourt erred in denying Director Dean’s qualified-immunity defense. More\n\nspecifically, we hold that the Plaintiffs have failed to carry their burden of\n\nshowing that Director Dean’s actions violated clearly-established federal law.\n\n A\n\n 1\n\n “A motion for judgment on the pleadings under Rule 12(c) is treated as a\n\nmotion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank\n\nof Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret\n\n 19\n\fBook Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). Therefore, we review de novo\n\nthe district court’s denial of Director Dean’s motion asserting a qualified-\n\nimmunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,\n\nInc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting that “we use the same de novo\n\nstandard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule\n\n12)(b)(6)); Brown, 662 F.3d at 1162 (“We review the district court’s denial of a\n\nmotion to dismiss based on qualified immunity de novo.” (quoting Peterson v.\n\nJensen, 371 F.3d 1199, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,\n\nColo., 222 F.3d 1238, 1240 (10th Cir. 2000) (reviewing de novo a district court’s\n\ndenial of a Rule 12(c) motion based on qualified immunity), abrogated on other\n\ngrounds by Crawford-El v. Britton, 523 U.S. 574 (1988), as recognized by\n\nCurrier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001).\n\n “To survive a motion to dismiss, a complaint must contain sufficient factual\n\nmatter, accepted as true, to state a claim to relief that is plausible on its face.”\n\nEmps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir.\n\n2018) (quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the\n\nplaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Free Speech v.\n\nFed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556\n\nU.S. at 678). In making this assessment, we “accept as true ‘all well-pleaded\n\nfactual allegations in a complaint and view these allegations in the light most\n\n\n 20\n\ffavorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th\n\nCir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th\n\nCir. 2011)).\n\n 2\n\n The qualified-immunity doctrine protects public employees from both\n\nliability and “from the burdens of litigation” arising from their exercise of\n\ndiscretion. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.\n\n2013); see Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of\n\naffording public officials qualified immunity from suit is to protect them ‘from\n\nundue interference with their duties and from potentially disabling threats of\n\nliability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982))). When a\n\ndefendant raises the qualified-immunity defense, “the onus is on the plaintiff to\n\ndemonstrate ‘(1) that the official violated a statutory or constitutional right, and\n\n(2) that the right was “clearly established” at the time of the challenged\n\nconduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis\n\nadded) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Cillo v.\n\nCity of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013).\n\n We may address the two prongs of the qualified-immunity analysis in either\n\norder: “[I]f the plaintiff fails to establish either prong of the two-pronged\n\nqualified-immunity standard, the defendant prevails on the defense.” A.M. v.\n\nHolmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151\n\n\n 21\n\f(2017). Here, our analysis focuses on the clearly-established-law prong, and we\n\nconclude that Plaintiffs have failed to demonstrate that Director Dean violated\n\ntheir clearly-established rights; consequently, Director Dean prevails on his\n\nqualified-immunity defense. Because we need not do so, we do not reach the first\n\nprong of the qualified-immunity standard—that is, whether Director Dean’s\n\nconduct in failing to set prevailing rates actually violated Plaintiffs’ substantive\n\ndue-process rights.\n\n “A clearly established right is one that is ‘sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that\n\nright.’” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam)\n\n(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Ordinarily, “[a]\n\nplaintiff may satisfy this [clearly-established-law] standard by identifying an\n\non-point Supreme Court or published Tenth Circuit decision [that establishes the\n\nunlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established\n\nweight of authority from other courts must have found the law to be as the\n\nplaintiff maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise v. Casper, 593\n\nF.3d 1163, 1167 (10th Cir. 2010)); accord A.M., 830 F.3d at 1135; Cox, 800 F.3d\n\nat 1247. As the Supreme Court has instructed, this “do[es] not require a case\n\ndirectly on point, but existing precedent must have placed the statutory or\n\nconstitutional question [regarding the illegality of the defendant’s conduct]\n\nbeyond debate.” al-Kidd, 563 U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d\n\n\n 22\n\f1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the\n\ncited authority to correspond exactly to the situation the plaintiff complains of,\n\nthe ‘plaintiff must demonstrate a substantial correspondence between the conduct\n\nin question and prior law allegedly establishing that the defendant’s actions were\n\nclearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d 1179,\n\n1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]\n\ncourts . . . not to define clearly established law at a high level of generality.” al-\n\nKidd, 563 U.S. at 742 (citation omitted); accord Mullenix, 136 S. Ct. at 308.\n\n“[D]oing so avoids the crucial question [of] whether the official acted reasonably\n\nin the particular circumstances that he or she faced.” Plumhoff v. Rickard, 572\n\nU.S. 765, 779 (2014) (emphasis added); accord Estate of B.I.C., 761 F.3d at 1106.\n\nIn this connection, it bears underscoring that the federal right allegedly violated\n\nmust have been “clearly established at the time of the defendant’s unlawful\n\nconduct.” Cillo, 739 F.3d at 460.\n\n In furthering the protective aims of qualified immunity, it is important that\n\ncourts be especially sensitive to the need to ensure “a substantial correspondence\n\nbetween the conduct in question and prior law allegedly establishing that the\n\ndefendant’s actions were clearly prohibited,” Estate of B.I.C., 761 F.3d at 1106\n\n(quoting Trotter, 219 F.3d at 1184)), where the legal standards of liability under\n\nthe prior law are broad and general or depend on a balancing of discrete and\n\nsometimes opposing interests. See Mullenix, 136 S. Ct. at 308 (holding that\n\n\n 23\n\f“specificity [in defining clearly-established law] is especially important in the\n\nFourth Amendment context” because “[i]t is sometimes difficult for an officer to\n\ndetermine how the relevant legal doctrine . . . will apply to the factual situation\n\nthe officer confronts” (second alteration in original) (quoting Saucier v. Katz, 533\n\nU.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,\n\n555 U.S. 223, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,\n\n579 F.3d 1171, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 844 F.3d 870, 877\n\n(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very\n\nmuch on the facts of each case,’ and the precedents must ‘squarely govern’ the\n\npresent case [to constitute clearly-established law].” (quoting Mullenix, 136 S. Ct.\n\nat 309)); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.\n\n1992) (addressing a substantive due-process claim and stating that “allegations of\n\nconstitutional violations that require courts to balance competing interests may\n\nmake it more difficult to find the law ‘clearly established’ when assessing claims\n\nof qualified immunity”), overruled in part on other grounds by County of\n\nSacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672\n\nF.3d 1185, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 879 F.2d\n\n706, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First\n\nAmendment, and noting that, “because a rule of law determined by a balancing of\n\ninterests is inevitably difficult to clearly anticipate, it follows that where . . .\n\nbalancing is required, the law is less likely to be well established than in other\n\n\n 24\n\fcases”), modified on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991) (en\n\nbanc). The legal standard governing liability under the rubric of substantive due\n\nprocess evinces these attributes.\n\n Specifically, the standard for liability for a violation of a person’s\n\nsubstantive due-process rights is broad and general. See Washington v.\n\nGlucksberg, 521 U.S. 702, 722 (1997) (stating that the rights protected under\n\nsubstantive due process have “never [been] fully clarified, to be sure, and perhaps\n\n[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 503\n\nU.S. 115, 125 (1992) (describing substantive due process as an “unchartered area”\n\nin which the “guideposts for responsible decisionmaking . . . are scarce and\n\nopen-ended”). Furthermore and relatedly, consideration of whether a person’s\n\nsubstantive due-process rights have been infringed “requires a ‘balancing [of the\n\nperson’s constitutionally protected] interests against the relevant state interests.’”\n\nJ.B. v. Washington Cty., 127 F.3d 919, 927 (10th Cir. 1997) (quoting Youngberg\n\nv. Romeo, 457 U.S. 307, 321 (1982)).\n\n Thus, in our assessment here of whether Director Dean’s conduct violated\n\nPlaintiffs’ clearly-established substantive due-process rights, we must be\n\nespecially sensitive to whether existing relevant precedents at the time he acted\n\n“squarely govern[ed],” Mullenix, 136 S. Ct. at 310, “the particular circumstances\n\nthat he . . . faced,” Plumhoff, 572 U.S. at 779 (emphasis added), and demonstrated\n\n\n\n\n 25\n\fthat the “violative nature of the particular conduct is clearly established.”\n\nAldaba, 844 F.3d at 877 (quoting Mullenix, 136 S. Ct. at 308).\n\n\n\n B\n\n Director Dean challenges the district court’s conclusion as to both prongs\n\nof the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive\n\ndue-process rights and that he did so in violation of clearly-established federal\n\nlaw. We agree with Director Dean that he did not violate clearly-established\n\nfederal law and thus conclude that he is entitled to the defense of qualified\n\nimmunity. However, we first address Plaintiffs’ argument that the\n\nqualified-immunity defense is unavailable because Director Dean’s obligation to\n\nset CBA-based rates was a ministerial duty, rather than a discretionary function of\n\nhis position.\n\n 1\n\n Qualified immunity only shields an official in the exercise of his or her\n\ndiscretion. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)\n\n(“Under the qualified immunity doctrine, ‘government officials performing\n\ndiscretionary functions, generally are shielded from liability for civil damages\n\ninsofar as their conduct does not violate clearly established [federal] statutory or\n\nconstitutional rights of which a reasonable person would have known.’”\n\n(alteration in original) (emphasis added) (quoting Harlow, 457 U.S. at 818)).\n\n\n 26\n\fPlaintiffs contend that Director Dean’s duty to issue new prevailing rates for\n\nwages and fringe benefits pursuant to the Act was nondiscretionary, rendering\n\nqualified immunity inapplicable here. For support, they rely primarily on the\n\nNew Mexico Supreme Court’s statement in Dean that “under the Act, specifically\n\nSection 13-4-11, the Director has a mandatory, nondiscretionary duty to set\n\nprevailing wage and prevailing benefit rates the same as those negotiated in\n\napplicable CBAs.” 353 P.3d at 1218. Director Dean responds that his duty was\n\nin fact discretionary because it involved interpreting the Act.\n\n We agree with Director Dean that his duty to publish prevailing rates\n\ninvolved substantial discretion as that term applies in the federal qualified-\n\nimmunity context, and that he therefore may avail himself of the qualified-\n\nimmunity defense. Director Dean’s implementation of the Act required him to\n\ninterpret the language of a state statute. And although the New Mexico Supreme\n\nCourt eventually held that Defendants’ interpretation was contrary to the 2009\n\nAmendments, see Dean, 353 P.3d at 1218, interpretation of state law is exactly\n\nthe kind of discretionary function for which the qualified-immunity defense\n\nagainst federal liability applies.\n\n The Supreme Court made this clear in Davis v. Scherer, 468 U.S. 183\n\n(1984), where it reversed the district court’s denial of qualified immunity based\n\nupon a finding that the defendants had violated a clear mandate of state law in\n\nterminating plaintiff’s employment without following certain pretermination\n\n\n 27\n\fprocedures. Id. at 193. The Court proceeded to craft a narrow scope for the\n\n“ministerial duty” exception to qualified immunity. Id. at 196 n.14. The Court\n\nexplained that a law that “fails to specify the precise action that the official must\n\ntake in each instance creates only discretionary authority; and that authority\n\nremains discretionary however egregiously it is abused.” Id. Thus, the Davis\n\nCourt reasoned, even assuming that the defendants had “ignored a clear legal\n\ncommand” to follow various pre-termination procedures before ending the\n\nplaintiff’s employment, this duty was discretionary given that the state regulation\n\nin question left to them to interpret various terms contained in those\n\npretermination procedures, including “a complete investigation” and a “thorough\n\nstudy of all information.” Id. These indefinite terms provided the defendants\n\nwith a “substantial measure of discretion” and thus allowed them to exercise\n\nauthority that is discretionary, rather than ministerial. Id.\n\n Similarly, the Act left to Director Dean a substantial measure of discretion\n\nin interpreting its terms. The Act requires the director to establish prevailing\n\nrates “at the same wage rates and fringe benefit rates used in collective bargaining\n\nagreements,” but leaves to the director substantial discretion to determine the\n\nmethod of collecting and aggregating data, and, perhaps most importantly for our\n\npresent inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West\n\n2009).\n\n\n\n\n 28\n\f Notably, Plaintiffs fail to cite any caselaw addressing federal qualified\n\nimmunity that would support a contrary result. And though the New Mexico\n\nSupreme Court held that “the Director has a mandatory, nondiscretionary duty to\n\nset the same prevailing wage and prevailing benefit rates as those negotiated in\n\napplicable CBAs,” Dean, 353 P.3d at 1214, the analytical context of the state\n\ncourt’s description of Director Dean’s duty as “mandatory” and\n\n“nondiscretionary” is important. The court’s description relates to the availability\n\nof mandamus relief under New Mexico law. Id. at 1214. While we ordinarily\n\ndefer to a state court’s interpretation of a state statute, see United States v.\n\nDeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts\n\nare the final arbiters of state law.”), the issue before us concerns not whether\n\nmandamus is available under New Mexico law, but whether qualified immunity\n\nbars liability under federal law. We therefore apply a federal standard to\n\ndetermine whether Director Dean’s obligations were sufficiently discretionary to\n\nwarrant the protections of the qualified-immunity defense under federal law, and\n\nwe conclude that the United States Supreme Court’s language in Davis compels\n\nour conclusion that such protections are available here.\n\n Director Dean’s interpretation and implementation of the Act were\n\ntherefore matters within his discretion, and he is protected from liability under\n\n§ 1983 unless his conduct violated clearly-established federal law.\n\n 2\n\n\n 29\n\f Turning finally to the issue of whether Director Dean is entitled to qualified\n\nimmunity under the circumstances giving rise to this § 1983 suit, we conclude\n\nthat his actions did not violate clearly-established federal law. Specifically, we\n\nconclude that Plaintiffs have failed to meet the second prong of the qualified-\n\nimmunity analysis—i.e., Plaintiffs have failed to identify clearly-established law\n\nthat would have put Director Dean on notice that his conduct would give rise to\n\nliability under federal law—and thus we need not reach the first prong of the\n\nqualified-immunity analysis, i.e., whether Director Dean’s conduct in fact\n\nviolated Plaintiffs’ rights to substantive due process. See A.M., 830 F.3d\n\nat 1134–35.\n\n The district court denied qualified immunity based upon a finding that “the\n\nAct clearly and unambiguously required the Director to set prevailing wage rates\n\naccording to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and\n\nurge us to affirm.\n\n But the district court’s reasoning is flawed because it equates a violation of\n\na clear obligation under state law 4 with a violation of clearly-established federal\n\n 4\n Director Dean argues, in his opening brief, that he followed a\n“normal process” by refraining from implementing the Act during the pendency of\nthe challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he\nargues that “state law was ambiguous at the time,” given that an appeal to the LIC\ntypically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the\nLIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.\nSee Def.’s Opening Br. at 27–28.\n\n (continued...)\n\n 30\n\flaw. Whether Director Dean violated clearly-established state law in failing to set\n\nCBA-based rates, however, is an entirely separate question from whether that\n\nfailure violated clearly-established federal law. And even if Director Dean had\n\nnotice that his reading of the Act was incorrect as a matter of state law, this\n\nwould not necessarily deprive him of qualified immunity from liability under\n\nfederal law. See Davis, 468 U.S. at 194 (“Officials sued for constitutional\n\nviolations do not lose their qualified immunity merely because their conduct\n\nviolates some statutory or administrative provision [of state law].”); Stanley v.\n\nGallegos, 852 F.3d 1210, 1224 (10th Cir. 2017) (Holmes, J., concurring in the\n\njudgment) (noting that Davis forecloses the argument that “if an official acts\n\noutside of his scope of authority, as defined by clearly established state law, he\n\n‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of\n\nhis defense that his actions did not violate clearly established federal law”); cf.\n\n\n\n 4\n (...continued)\n However, during oral arguments before this court, Director Dean’s counsel\nconceded that there was no confusion regarding the director’s state-law\nobligations—irrespective of whether a stay was in effect—once the secretary’s\ncounsel represented to the New Mexico Supreme Court that DWS would update\nthe prevailing rates. Thus, we deem any argument that the director’s obligation\nunder state law was ambiguous as either waived due to inadequate briefing on\nappeal or abandoned by counsel’s affirmative admission during oral argument, see\nUnited States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011); United States v.\nCarrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007), at least insofar as\nthe argument bears upon the clearly-established-law prong of the qualified-\nimmunity analysis—viz., insofar as any ambiguity might have supported the idea\nthat a reasonable state official in Director Dean’s position would not have been on\nfair notice of a violation of federal law.\n\n 31\n\fDahn v. Amedei, 867 F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of\n\nqualified immunity upon finding no violation of clearly-established federal law,\n\nbut noting that Defendants’ conduct could “very well expose them to tort\n\nliability” under state law).\n\n Neither the district court nor Plaintiffs have identified any case from the\n\nSupreme Court or this court finding a defendant liable under federal law in\n\nfactually similar circumstances, i.e., where a public official in the same or similar\n\nposition as Director Dean was held liable under federal law for failing to set rates\n\nfor wages and fringe benefits (or for similar items) in apparent contravention of\n\nstate law that required him to do so. Given that Plaintiffs bear the burden of\n\npresenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,\n\n841 F.3d 895, 900 (10th Cir. 2016), this failure proves fatal to their position.\n\n Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act\n\ncreated a clearly-established right for purposes of qualified immunity by virtue of\n\nits “clear and unambiguous” description of Director Dean’s duties. These cases,\n\nhowever, do not speak to the legal issue present here and are without controlling\n\nforce in this circuit.\n\n The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)\n\n(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it\n\nis notable that Gardner is an out-of-circuit unpublished decision; even assuming\n\nthat such a decision is entitled to any consideration at all in the clearly-\n\n\n 32\n\festablished-law analysis, that consideration would be minimal. See Morris, 672\n\nF.3d at 1197 n.5 (observing that “a single unpublished district court opinion is not\n\nsufficient to render the law clearly established,” but, in discussing “unpublished\n\ncases from this court,” noting that “we have never held that a district court must\n\nignore unpublished opinions in deciding whether the law is clearly established”);\n\nMecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (noting, in the context\n\nof discussing the import of an unpublished Tenth Circuit decision, that “[a]n\n\nunpublished opinion, . . . even if the facts were closer, provides little support for\n\nthe notion that the law is clearly established”); cf. Grissom v. Roberts, 902 F.3d\n\n1162, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of\n\nMecham but noting that, on the other hand, “an unpublished opinion can be quite\n\nrelevant in showing that the law was not clearly established,” specifically when\n\n“the same alleged victim and same defendant conduct are involved”).\n\n Furthermore, even focusing on the merits, Gardner lends Plaintiffs little\n\nsuccor. There, a panel of the Sixth Circuit concluded that a state trooper had\n\nviolated an individual’s clearly-established Fourth Amendment rights by arresting\n\nhim without probable cause given that it was “unambiguous and not reasonably\n\nopen to an alternative interpretation” that the state statutes used to justify the\n\narrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently\n\ndistinguishable because there it was undisputed that effecting an arrest without\n\nprobable cause would constitute a violation of Fourth Amendment Rights. In\n\n\n 33\n\fcontrast, here it is disputed that Director Dean’s failure to determine prevailing\n\nrates constituted any violation of federal rights. More fundamentally, Gardner\n\nsimply highlights in unremarkable fashion the “inevitable importance” in certain\n\nlegal settings of state law to our assessment of whether the plaintiff may “show a\n\nviolation of his federal rights.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th\n\nCir. 2012). “The basic federal constitutional right of freedom from arrest without\n\nprobable cause is undoubtedly clearly established by federal cases. But the\n\nprecise scope of that right uniquely depends on the contours of a state’s\n\nsubstantive criminal law” where, as in Gardner, the issue is whether the law\n\nenforcement officer “had probable cause based on a state criminal statute.” Id.\n\nat 1300–01 (citation omitted) (citing Keylon v. City of Albuquerque, 535 F.3d\n\n1210, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is\n\nessential to discern the content of state law—the rights being vindicated through\n\n§ 1983 are federal.” A.M., 830 F.3d at 1141. Gardner does not purport to alter\n\nthis federal-law focus of § 1983 liability. Nor does Gardner suggest that state-\n\nlaw violations play a similarly significant role in the context of substantive due-\n\nprocess violations, much less clearly establish that Director Dean’s alleged\n\nviolation of clearly-established state law in failing to set CBA-based rates would\n\neffect a violation of substantive due process. Thus, Plaintiffs’ reliance on\n\nGardner is unavailing.\n\n\n\n\n 34\n\f The second case Plaintiffs cite is Brooks v. George County, 84 F.3d 157\n\n(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied\n\nqualified immunity to a sheriff that had failed to meet his obligation under state\n\nlaw to keep records that were to be used to pay pretrial detainees. Id. at 164–65.\n\nBut the Fifth Circuit’s decision to deny qualified immunity there rested entirely\n\non its determination, based on a reading of the state statute in question, that the\n\nsheriff’s duty was non-discretionary. Id. However, as stated supra, we have\n\ndetermined that Director Dean’s duties under the 2009 Amendments were in fact\n\ndiscretionary for purposes of qualified immunity under federal law. Therefore,\n\nBrooks does not help Plaintiffs either.\n\n Because Plaintiffs have offered no authority clearly establishing that\n\nDirector Dean violated their substantive due-process rights under federal law by\n\nfailing to discharge his state-law obligation under the Act to publish CBA-based\n\nrates for wages and fringe benefits, we conclude that Director Dean is entitled to\n\nqualified immunity. 5\n\n IV\n\n\n\n 5\n Since our inquiry here solely concerned whether Director Dean\nviolated clearly-established federal law for purposes of determining whether he is\nentitled to qualified immunity from liability under federal law, see Davis, 468\nU.S. at 194, we have no occasion to question the New Mexico Supreme Court’s\nreading of the 2009 Amendments, or to decide whether Director Dean’s conduct\nin fact violated state law. Our opinion thus does not preclude Plaintiffs from\nseeking any available relief for Defendants’ purported violations of New Mexico\nlaw in state court.\n\n 35\n\f For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the\n\ngrant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we\n\nREVERSE the district court’s judgment in Case No. 17-2072 and REMAND the\n\ncase and instruct the court to grant Director Dean qualified immunity with respect\n\nto Plaintiffs’ substantive due-process claim.\n\n\n\n\n 36", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361613/", "author_raw": "HOLMES, Circuit Judge."}]}	LUCERO	HOLMES	EID	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584360/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gustavo Berrospe; Reyes Cabriales; Sergio Escobedo ; Jason Head; Nick Hinojos; Robert G. Hitzman; Michael Lopez; Jose Rodriguez; Sergio A. Rojo; Richard Tenorio; Cesar Torres ; Grant Willis; Harold Brown; Rene Carrillo; Henry Nez, Jr.; Kurt Johnson; Jesus Aguilar-Murillo; Martin F. Alvarez; Arthur Archuleta; Enrique Corona; Ronald Hubbard ; Andrew M. Lugo; Henry Lujan ; David Carr; D. Jeremiah Cordova; Kevin Charvea; Nathan Espalin; Levi Gutierrez; Dennis Moore; Robert Moreno ; Levi Olivas; Thomas D. Payne; Bryan Wheeler, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants, v. Jason DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in His Individual Capacity, Defendant-Appellant/Cross-Appellee and Celina Bussey, Secretary of the New Mexico Department of Workforce Solutions, in Her Individual Capacity, Defendant/Cross-Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 24, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nRANDY CUMMINGS; CRUZ\nGALLEGOS; ROBERT J. GARCIA;\nRICHARD GONZALES; ELOY A.\nJARAMILLO; DAVID\nLARRANAGA; JOSEPH LOPEZ;\nRICK LOPEZ; DAVID MONTANO;\nANGELO RINALDI; CHRIS\nSWEENEY; JOSH TILLINGHAST;\nTOMAS TRUJILLO; JEFFREY S.\nWADE; JOSHUA HOSELTON;\nCHARLES W. LEES; JAIME\nMARQUEZ; ROBERT MENDOZA;\nARMANDO ANCHONDO;\nGUSTAVO BERROSPE; REYES\nCABRIALES; SERGIO ESCOBEDO;\nJASON HEAD; NICK HINOJOS;\nROBERT G. HITZMAN; MICHAEL\nLOPEZ; JOSE RODRIGUEZ;\nSERGIO A. ROJO; RICHARD\nTENORIO; CESAR TORRES;\nGRANT WILLIS; HAROLD BROWN;\nRENE CARRILLO; HENRY NEZ,\nJR.; KURT JOHNSON; JESUS\nAGUILAR-MURILLO; MARTIN F.\nALVAREZ; ARTHUR ARCHULETA;\nENRIQUE CORONA; RONALD\nHUBBARD; ANDREW M. LUGO;\nHENRY LUJAN; DAVID CARR; D.\nJEREMIAH CORDOVA; KEVIN\nCHARVEA; NATHAN ESPALIN;\nLEVI GUTIERREZ; DENNIS\nMOORE; ROBERT MORENO; LEVI\nOLIVAS; THOMAS D. PAYNE;\nBRYAN WHEELER, on behalf of\nthemselves and all others similarly\n\f situated,\n\n Plaintiffs - Appellees/Cross-\n Appellants,\n v. Nos. 17-2072 & 17-2079\n JASON DEAN, as the Director of the\n Labor Relations Division of the New\n Mexico Department of Workforce\n Solutions, in his individual capacity,\n\n Defendant - Appellant/Cross-\n Appellee\n\n and\n\n CELINA BUSSEY, Secretary of the\n New Mexico Department of Workforce\n Solutions, in her individual capacity,\n\n Defendant/Cross-Appellee.\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:16-CV-00951-JAP-KK)\n\n\nThomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.\nLewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall\nJ. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and\nSean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),\nfor Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.\n\nShane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),\nYoutz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees\n/Cross-Appellants.\n\n\nBefore LUCERO, HOLMES, and EID, Circuit Judges.\n\n 2\n\fHOLMES, Circuit Judge.\n\n\n Jason Dean, director of the Labor Relations Division of the New Mexico\n\nDepartment of Workforce Solutions (“DWS”), raises this appeal from the district\n\ncourt’s denial of qualified immunity against the claim that he violated Plaintiffs’\n\nconstitutional rights to substantive due process by failing to issue prevailing rates\n\nfor wages and fringe benefits as required by New Mexico law.\n\n In the action below, Plaintiffs, individuals who worked on public works\n\nprojects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of\n\nthemselves and others similarly situated, alleging that Director Dean and Celina\n\nBussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive\n\ndue-process rights by failing to determine prevailing rates for wages and fringe\n\nbenefits in contravention of the New Mexico Public Works Minimum Wage Act\n\n(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a\n\nresult of this failure, from 2009 to 2015 they did not receive the rates to which\n\nthey were entitled under the Act.\n\n Defendants filed a motion to dismiss, claiming qualified immunity. The\n\ndistrict court granted it in part and denied it in part. Specifically, the district\n\ncourt granted the motion in its entirety as to Secretary Bussey, and as to\n\nPlaintiffs’ procedural due-process claim against Director Dean. However, the\n\n\n 3\n\fcourt denied the motion with respect to Director Dean on Plaintiffs’ substantive\n\ndue-process claim.\n\n Both parties now appeal from the district court’s ruling. In Case No. 17-\n\n2072, Director Dean appeals from the court’s denial of qualified immunity as to\n\nPlaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs\n\ncross-appeal the district court’s dismissal of (1) their claims against Secretary\n\nBussey, and (2) their claim against Director Dean for violation of their procedural\n\ndue-process rights.\n\n For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.\n\n17-2079, for lack of jurisdiction, and reverse and remand the district court’s\n\ndenial of qualified immunity as to Director Dean on Plaintiffs’ substantive\n\ndue-process claim in Case No. 17-2072.\n\n I\n\n We first present the state statutory context for Plaintiffs’ claims and then\n\nreview the relevant facts.\n\n A\n\n Every contract for public works in New Mexico in excess of\n\n$60,000—including those involving construction and demolition—is required to\n\nstate the minimum wages and fringe benefits for all tradespeople that work on a\n\nparticular project. The director of the Labor Relations Division of DWS (“the\n\ndirector”) is tasked with publishing a schedule of minimum wages and fringe\n\n 4\n\fbenefits for such laborers and mechanics. Generally, Plaintiffs are individuals\n\nwho worked on public-works projects in New Mexico during the three years prior\n\nto the date of the filing of their lawsuit on August 23, 2016.\n\n Prior to 2009, § 13-4-11(B) of the Act provided:\n\n [The director] shall conduct a continuing program for the\n obtaining and compiling of wage-rate information and shall\n encourage the voluntary submission of wage-rate data by\n contractors, contractors’ associations, labor organizations,\n interested persons and public officers. Before making a\n determination of wage rates for any project, the director shall\n give due regard to the information thus obtained. Whenever the\n director deems that the data at hand are insufficient to make a\n wage determination, the director may have a field survey\n conducted for the purpose of obtaining sufficient information\n upon which to make [a] determination of wage rates. Any\n interested person shall have the right to submit to the director\n written data, views and arguments why the wage determination\n should be changed.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act\n\nwas amended to state:\n\n The director shall determine prevailing wage rates and prevailing\n fringe benefit rates for respective classes of laborers and\n mechanics employed on public works projects at the same wage\n rates and fringe benefit rates used in collective bargaining\n agreements between labor organizations and their signatory\n employers that govern predominantly similar classes or\n classifications of laborers and mechanics for the locality of the\n public works project and the crafts involved; provided that:\n\n (1) if the prevailing wage rates and prevailing fringe benefit\n rates cannot reasonably and fairly be determined in a\n locality because no collective bargaining agreements exist,\n the director shall determine the prevailing wage rates and\n prevailing fringe benefit rates for the same or most similar\n\n 5\n\f class or classification of laborer or mechanic in the nearest\n and most similar neighboring locality in which collective\n bargaining agreements exist;\n\n (2) the director shall give due regard to information obtained\n during the director’s determination of the prevailing wage\n rates and the prevailing fringe benefit rates made pursuant\n to this subsection;\n\n (3) any interested person shall have the right to submit to the\n director written data, personal opinions and arguments\n supporting changes to the prevailing wage rate and\n prevailing fringe benefit rate determination; and\n\n (4) prevailing wage rates and prevailing fringe benefit rates\n determined pursuant to the provisions of this section shall\n be compiled as official records and kept on file in the\n director’s office and the records shall be updated in\n accordance with the applicable rates used in subsequent\n collective bargaining agreements.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009\n\nAmendments”].\n\n The 2009 Amendments had the primary effect of requiring the director to\n\ndetermine the prevailing rates based on the wage rates and fringe-benefit rates\n\nused in collective bargaining agreements (“CBAs”), as opposed to the earlier\n\nversion of the statute’s mandate to simply collect data for the “purpose of\n\nobtaining sufficient information upon which to make [a] determination of wage\n\nrates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.\n\nat 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).\n\n B\n\n\n 6\n\f By April 2011—almost two years after the 2009 Amendments came into\n\nforce—the director still had not set prevailing-wage rates according to the CBAs.\n\nThe New Mexico Building and Construction Trades Council (“NMBCTC”), “an\n\nalliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &\n\nConstr. Trades Council v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a\n\nPetition for Writ of Mandamus in the New Mexico Supreme Court requesting that\n\nthe court compel the director to set prevailing wage and prevailing benefit rates in\n\naccordance with relevant CBAs. The New Mexico Supreme Court denied the\n\nwrit, but did so on the basis of a representation by the DWS secretary’s (“the\n\nsecretary”) counsel that the secretary would set new rates within four or five\n\nmonths. See id. (quoting counsel’s statement during oral arguments in 2011: “I\n\nwould say [setting the rates] could conceivably be done in four or five months,\n\nwhich I don’t think is unreasonable, especially since the secretary has assured me,\n\nand I’m assuring the Court, that she’s intent on getting this done. I don’t think it\n\nrequires a writ of mandamus to get it done. But, whatever the Court desires, I’m\n\nconfident she’ll get it done.”).\n\n Despite this assurance from the secretary’s counsel, the secretary did not\n\nset new prevailing wage or prevailing benefit rates, even though in 2012 she\n\noversaw the promulgation of new regulations and the amendment of others as\n\nrequired by the Act. Id. at 1214–15. The NMBCTC challenged these new\n\nregulations before the New Mexico Labor and Industrial Commission (“LIC”).\n\n 7\n\fTypically, a challenge to a new regulation filed with the LIC stays the\n\nimplementation of that regulation pending resolution of the challenge, see N.M.\n\nC ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the\n\nautomatic stay if necessary to allow the DWS to proceed with determining new\n\nprevailing rates:\n\n Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives\n its right to stay the effectiveness of the new rules through the\n filing of this appeal as those rules relate to the determination of\n new prevailing rates to replace the rates currently in effect. . . .\n Appellant desires the Department to update the prevailing rates\n in some manner as soon as possible given that the current rates\n are based on 2009 data and have not been updated for more than\n two years. If necessary, Appellant requests the Commission to\n waive the automatic stay as herein described as well.\n\nAplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC\n\ndenied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the\n\nstate district court. The LIC did not act to lift the automatic stay at any point\n\nduring these proceedings.\n\n While the appeal to the state district court was pending, and in light of the\n\ndirector’s continued failure to determine updated rates, the NMBCTC filed a\n\nsecond Petition for Writ of Mandamus in the New Mexico Supreme Court in\n\n2015. The NMBCTC again requested that the New Mexico Supreme Court order\n\nthe director to determine the rates as required under the Act. The court this time\n\ngranted the writ, stating:\n\n\n\n\n 8\n\f We hold that under the Act the Director has a mandatory,\n nondiscretionary duty to set the same prevailing wage and\n prevailing benefit rates as those negotiated in applicable CBAs\n and that the Director’s failure to do so violates the Act. We\n therefore issue a writ of mandamus ordering the Director to\n comply with the Act and set rates in accordance with CBAs as\n required under the Act within thirty days of the issuance of this\n opinion.\n\nDean, 353 P.3d at 1214.\n\n C\n\n Plaintiffs filed the present suit in federal court alleging that they suffered\n\nfinancial harm due to Defendants’ failure to determine the prevailing rates in\n\naccordance with the 2009 Amendments. Specifically, they allege that the wages\n\nand benefits they received, which were based on the pre-2009 Amendment\n\ndeterminations, “were less than would have been received had Defendants issued\n\nprevailing wage rate and prevailing fringe benefit determinations in accordance\n\nwith the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,\n\ndated Aug. 23, 2016).\n\n Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),\n\nDefendants sought judgment on the pleadings with respect to Plaintiff’s amended\n\ncomplaint—the operative complaint for our purposes—on qualified-immunity\n\ngrounds. The district court granted the motion in its entirety with respect to\n\nSecretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative\n\nlink’ demonstrating that Bussey authorized or approved of Dean’s noncompliance\n\n\n 9\n\fwith the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 614 F.3d 1185,\n\n1200–01 (10th Cir. 2010)).\n\n The court then considered Plaintiffs’ constitutional claims against Director\n\nDean. With respect to the procedural due-process claim, the court first\n\ndetermined that Plaintiffs had a protected property interest in CBA-level rates\n\nunder the Act, giving rise to restrictions on the director’s discretion in\n\ndetermining prevailing rates. However, the court noted that “more is\n\nrequired—Plaintiffs must show that they were deprived of the [property] interest\n\nwithout an adequate process by which they could obtain review of the\n\ndeprivation.” Id. at 160 (emphasis added). The court then stated that Plaintiffs\n\nfailed to establish that the processes available to challenge the director’s inaction\n\nwere constitutionally inadequate, in part because Plaintiffs did “not allege\n\nanywhere in the Complaint that they lacked the opportunity to challenge the 2009\n\nrates used by the Director.” Id. at 160–61. Accordingly, the court dismissed the\n\nprocedural due-process claim against Director Dean.\n\n The district court denied Defendants’ motion to dismiss Plaintiffs’\n\nsubstantive due-process claim against Director Dean, however. The court\n\nreasoned that the failure to set new rates, despite the assurance provided by the\n\nsecretary’s counsel during oral arguments before the New Mexico Supreme Court,\n\nwas sufficient to show that the director deliberately and arbitrarily deprived\n\nPlaintiffs of a protected property right. Furthermore, the court stated the director\n\n 10\n\fviolated clearly-established law by depriving Plaintiffs of the wages and benefits\n\nto which they were entitled under the Act. According to the court, Plaintiffs’\n\nright to CBA-based wages and benefits was clearly established by the statute\n\nitself given that the plain language of the 2009 Amendments was susceptible to\n\nonly one reading—“that it guarantees that [the] minimum wage and benefit rates\n\nmust be equivalent to the rates negotiated in CBAs.” Id. at 166.\n\n Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their\n\nclaims against Secretary Bussey and their procedural due-process claim against\n\nDirector Dean.\n\n II\n\n As in every matter, we must consider whether we have jurisdiction over all\n\naspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,\n\n762 F.3d 1016, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of\n\nour subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 550 F.3d\n\n1004, 1009 (10th Cir. 2008))).\n\n A\n\n With respect to Director Dean’s appeal in Case No. 17-2072, we exercise\n\njurisdiction over the district court’s denial of his qualified-immunity defense\n\npursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\n\n(“[T]his Court has been careful to say that a district court’s order rejecting\n\nqualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final\n\n 11\n\fdecision’ within the meaning of § 1291.”); accord Brown v. Montoya, 662 F.3d\n\n1152, 1162 (10th Cir. 2011).\n\n B\n\n Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less\n\nclear. We ultimately conclude that we do not have jurisdiction to hear this\n\nappeal.\n\n We normally lack jurisdiction over a partial dismissal of a complaint\n\nbecause such dismissals do not constitute final, appealable decisions under\n\n§ 1291. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.\n\n2002) (“Because the dismissal . . . adjudicated fewer than all the claims and\n\nliabilities of all the parties, it was not a final appealable order . . . .”). However,\n\nthe discretionary doctrine of pendent appellate jurisdiction provides an exception\n\nto this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and\n\nnonappealable lower court decision that overlaps with an appealable decision.”\n\nCox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of\n\nWynnewood, 57 F.3d 924, 929 (10th Cir. 1995)).\n\n Our exercise of pendent jurisdiction is “only appropriate” in either of two\n\nscenarios: (1) “when ‘the otherwise nonappealable decision is inextricably\n\nintertwined with the appealable decision,’” or (2) “where review of the\n\nnonappealable decision is necessary to ensure meaningful review of the\n\nappealable one.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th\n\n 12\n\fCir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915\n\n(10th Cir. 2008)).\n\n Plaintiffs face several obstacles in establishing pendent jurisdiction over\n\ntheir cross-appeal. First, the exercise of pendent jurisdiction is generally\n\ndisfavored as applied to cases in which primary appellate jurisdiction is based on\n\nthe denial of qualified immunity. See Cox, 800 F.3d at 1255; accord Bryson v.\n\nGonzales, 534 F.3d 1282, 1285–86 (10th Cir. 2008). After all, the collateral order\n\ndoctrine, used to appeal from denials of qualified immunity, “is premised on the\n\nability to decide the qualified immunity issue ‘in isolation from the remaining\n\nissues of the case,’” making it “hard to reconcile” with pendent jurisdiction.\n\nBryson, 534 F.3d at 1285 (quoting Mitchell v. Forsyth, 472 U.S. 511, 529 n.10\n\n(1985)).\n\n Moreover, Plaintiffs’ briefing does not adequately support their assertion\n\nthat we may exercise pendent jurisdiction over their claims. And it is beyond\n\nperadventure that it is Plaintiffs’ burden to make such a jurisdictional showing.\n\nSee, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)\n\n(“Where an appellant fails to lead, we have no duty to follow. It is the\n\nappellant’s burden, not ours, to conjure up possible theories to invoke our legal\n\nauthority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536,\n\n542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists\n\nof a single conclusory sentence found in, respectively, their opening and reply\n\n\n 13\n\fbriefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,\n\nassert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1\n\nPlaintiffs present no analysis or argument to support either acceptable basis for\n\ngranting relief—viz., that their claims on cross-appeal are “inextricably\n\nintertwined” with the director’s appeal, or that consideration of their cross-appeal\n\nis “necessary for a full assessment of the appealable issue.” Crowe & Dunlevy,\n\n640 F.3d at 1148 (quoting Sevenoaks, 545 F.3d at 915). 2 By providing us with\n\n\n 1\n To avoid confusion in this consolidated appeal and cross-appeal, we\nrefer to the parties’ briefs as follows:\n\n• Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.\n• Appellees’ Principal and Response Brief = Pls.’ Resp. Br.\n• Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s\n Response and Reply Brief = Defs.’ Reply Br.\n• Appellees’ Reply Br. = Pls.’ Reply Br.\n 2\n Rather, Plaintiffs assert without analysis that this court “has\npend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma\nCity, 958 F.2d 1506 (10th Cir. 1992), a case involving a number of appeals\nrelating to a civil-rights action brought by a former city employee against the city\nand city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent\njurisdiction over a cross-appeal from an interlocutory appeal of a denial of\nqualified immunity, concluding that the pendent claim—an appeal from the\ndistrict court’s determination that the plaintiff did not have a property interest in\ncontinued employment with the city—involved issues that were “factually and\nlegally intertwined with the [non-pendent] issues on appeal” that the city officials\nraised. Primas, 958 F.2d at 1512. To be sure, the cases that the Primas court\nrelied upon in coming to this conclusion employed the aforementioned pendent-\njurisdiction framework: they considered whether the appeals were inextricably\nintertwined or whether reviewing the pendent issue was required to adequately\nassess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 894 F.2d\n1318, 1320 (Fed. Cir. 1990); Barrett v. United States, 798 F.2d 565, 571 (2d Cir.\n1986). As such, by relying on Primas, Plaintiffs do point us in the direction of\n (continued...)\n\n 14\n\fbare assertions rather than analytical guidance, Plaintiffs effectively ask us to\n\n“make arguments for [them] that [they] did not make in [their appellate] briefs,”\n\nwhich we “will not” do. 3 Cox, 800 F.3d at 1256 (quoting O’Neal v. Ferguson\n\nConstr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001)).\n\n Finally, even were we to overlook Plaintiffs’ failure to argue within the\n\npendent-jurisdiction framework, we would conclude that their claims do not\n\npresent either of the two scenarios where pendent jurisdiction may be\n\nappropriately exercised. With respect to Plaintiffs’ appeal of the district court’s\n\ndismissal of all claims against Secretary Bussey, the relevant question on appeal\n\nis whether Plaintiffs’ amended complaint adequately identified an “affirmative\n\nlink” between Secretary Bussey and the alleged deprivations in this case. Pls.’\n\nResp. Br. at 26. It is manifest that this question is not “inextricably intertwined”\n\nwith the appealable issue before us, i.e., whether Director Dean is entitled to\n\nqualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &\n\nDunlevy, 640 F.3d at 1148 (“A pendent claim may be considered ‘inextricably\n\n\n\n 2\n (...continued)\nthe required analysis. But Plaintiffs do not actually apply that analysis to the\nfacts of this case, and we will not do it for them.\n 3\n The director did not address pendent jurisdiction in his briefing.\nUnlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,\nhowever, the director’s “silence on the matter is of no moment,” Cox, 800 F.3d\nat 1257 n.13, as we have an independent obligation to inquire into our own\njurisdiction regardless of whether it is challenged, see United States v. Battles,\n745 F.3d 436, 447 (10th Cir. 2014).\n\n 15\n\fintertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the\n\ncourt on interlocutory appeal—that is, when the appellate resolution of the\n\ncollateral appeal necessarily resolves the pendent claim as well.’” (quoting\n\nMoore, 57 F.3d at 930)). Nor is appellate review of this question “necessary to\n\nensure meaningful review,” id. (quoting Sevenoaks, 545 F.3d at 915), of the issues\n\npresented in Director Dean’s qualified-immunity appeal, as evidenced by our\n\nanalysis of those issues, infra. See Cox, 800 F.3d at 1257 (“[W]e can\n\nundertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff\n\nGlanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)\n\nwithout exercising pendent jurisdiction over the official-capacity claim.”). As\n\nwas the case in Cox, in resolving the non-pendent appeal, “we [are] not required\n\nto decide the core issues implicated” in this ostensibly pendent matter, leaving us\n\nwith “grave doubt that there would be any appropriate basis for our exercise of\n\npendent jurisdiction.” Id.\n\n Our jurisdiction over Plaintiffs’ appeal from the dismissal of their\n\nprocedural due-process claim against Director Dean proves to be a closer call, but\n\nour conclusion is the same. It is axiomatic that procedural and substantive\n\ndue-process claims require distinct analyses, undermining the notion that this\n\npendent claim and the appealable claim are inextricably intertwined or that we\n\nmust review the procedural claim in order to adequately address the substantive\n\ndue-process claim that is properly before us. See Cleveland Bd. of Educ. v.\n\n\n 16\n\fLoudermill, 470 U.S. 532, 541 (1985) (“The point is straightforward: the Due\n\nProcess Clause provides that certain substantive rights—life, liberty, and\n\nproperty—cannot be deprived except pursuant to constitutionally adequate\n\nprocedures. The categories of substance and procedure are distinct. Were the\n\nrule otherwise, the Clause would be reduced to a mere tautology.”); Brown, 662\n\nF.3d at 1172 (noting that a judicial decision in “a procedural due process case . . .\n\ncannot support a clearly established substantive due process right” (citation\n\nomitted)); Brown, 662 F.3d at 1172 n.16 (“Insofar as Mr. Brown claims a\n\nsubstantive due process violation based on Officer Montoya’s placing him in the\n\nsex offender probation unit and directing him to register as a sex offender without\n\na hearing, Mr. Brown confuses substantive due process with procedural due\n\nprocess.”); United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (“Unlike\n\nprocedural due process, substantive due process protects a small number of\n\n‘fundamental rights’ from government interference regardless of the procedures\n\nused.”); see also Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir.\n\n2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process\n\nClause] as guaranteeing not only certain procedures when a deprivation of an\n\nenumerated right takes place (procedural due process), but also as guaranteeing\n\ncertain deprivations won’t take place without a sufficient justification\n\n(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899\n\n(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in\n\n\n 17\n\fits opinion and order whether it considered a procedural due process claim, a\n\nsubstantive due process claim, or both. This omission is relevant because the\n\ncourt appeared to inject the more demanding ‘fundamental rights and liberties’\n\nanalysis from the substantive due process sphere into the ‘liberty interest’\n\nanalysis that pertains to the procedural due process inquiry.”).\n\n And though there is often some overlap between the two analyses when\n\nsubstantive and procedural due-process claims are raised together based on the\n\nsame facts, see Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (“Though\n\nit is sometimes helpful, as a matter of doctrine, to distinguish between substantive\n\nand procedural due process, the two concepts are not mutually exclusive, and\n\ntheir protections often overlap.” (quoting Albright v. Oliver, 510 U.S. 266, 301\n\n(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’\n\npendent action challenges the district court’s conclusion that there were adequate\n\nprocedural protections that Plaintiffs failed to invoke, whereas the non-pendent\n\nappeal challenges the court’s finding that the director’s actions shocked the\n\nconscience and violated clearly-established federal law. These considerations are\n\nnot inextricably intertwined, and review of the pendent action is not required for a\n\nmeaningful analysis of the non-pendent appeal. Indeed, the district court’s\n\nanalysis and even the parties’ briefing treat the two issues without overlap. See\n\nAplt.’s App. at 159–66; cf. Cox, 800 F.3d at 1257.\n\n\n\n\n 18\n\f Thus, given our general disfavor of pendent jurisdiction in the qualified-\n\nimmunity context, see Bryson, 534 F.3d at 1285–86, Plaintiffs’ dereliction of their\n\nburden to establish our jurisdiction over their cross-appeal, and our conclusion\n\nthat neither of the two accepted rationales for exercising pendent jurisdiction are\n\npresent here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-\n\nappeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for\n\nlack of jurisdiction.\n\n\n\n III\n\n We next turn to the issue properly before us on appeal: whether the district\n\ncourt erred in denying Director Dean qualified immunity against Plaintiffs’\n\nsubstantive due-process claim. We first lay out the familiar motion-to-dismiss\n\nand qualified-immunity standards of review before concluding that the district\n\ncourt erred in denying Director Dean’s qualified-immunity defense. More\n\nspecifically, we hold that the Plaintiffs have failed to carry their burden of\n\nshowing that Director Dean’s actions violated clearly-established federal law.\n\n A\n\n 1\n\n “A motion for judgment on the pleadings under Rule 12(c) is treated as a\n\nmotion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank\n\nof Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret\n\n 19\n\fBook Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). Therefore, we review de novo\n\nthe district court’s denial of Director Dean’s motion asserting a qualified-\n\nimmunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,\n\nInc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting that “we use the same de novo\n\nstandard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule\n\n12)(b)(6)); Brown, 662 F.3d at 1162 (“We review the district court’s denial of a\n\nmotion to dismiss based on qualified immunity de novo.” (quoting Peterson v.\n\nJensen, 371 F.3d 1199, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,\n\nColo., 222 F.3d 1238, 1240 (10th Cir. 2000) (reviewing de novo a district court’s\n\ndenial of a Rule 12(c) motion based on qualified immunity), abrogated on other\n\ngrounds by Crawford-El v. Britton, 523 U.S. 574 (1988), as recognized by\n\nCurrier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001).\n\n “To survive a motion to dismiss, a complaint must contain sufficient factual\n\nmatter, accepted as true, to state a claim to relief that is plausible on its face.”\n\nEmps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir.\n\n2018) (quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the\n\nplaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Free Speech v.\n\nFed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556\n\nU.S. at 678). In making this assessment, we “accept as true ‘all well-pleaded\n\nfactual allegations in a complaint and view these allegations in the light most\n\n\n 20\n\ffavorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th\n\nCir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th\n\nCir. 2011)).\n\n 2\n\n The qualified-immunity doctrine protects public employees from both\n\nliability and “from the burdens of litigation” arising from their exercise of\n\ndiscretion. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.\n\n2013); see Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of\n\naffording public officials qualified immunity from suit is to protect them ‘from\n\nundue interference with their duties and from potentially disabling threats of\n\nliability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982))). When a\n\ndefendant raises the qualified-immunity defense, “the onus is on the plaintiff to\n\ndemonstrate ‘(1) that the official violated a statutory or constitutional right, and\n\n(2) that the right was “clearly established” at the time of the challenged\n\nconduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis\n\nadded) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Cillo v.\n\nCity of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013).\n\n We may address the two prongs of the qualified-immunity analysis in either\n\norder: “[I]f the plaintiff fails to establish either prong of the two-pronged\n\nqualified-immunity standard, the defendant prevails on the defense.” A.M. v.\n\nHolmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151\n\n\n 21\n\f(2017). Here, our analysis focuses on the clearly-established-law prong, and we\n\nconclude that Plaintiffs have failed to demonstrate that Director Dean violated\n\ntheir clearly-established rights; consequently, Director Dean prevails on his\n\nqualified-immunity defense. Because we need not do so, we do not reach the first\n\nprong of the qualified-immunity standard—that is, whether Director Dean’s\n\nconduct in failing to set prevailing rates actually violated Plaintiffs’ substantive\n\ndue-process rights.\n\n “A clearly established right is one that is ‘sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that\n\nright.’” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam)\n\n(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Ordinarily, “[a]\n\nplaintiff may satisfy this [clearly-established-law] standard by identifying an\n\non-point Supreme Court or published Tenth Circuit decision [that establishes the\n\nunlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established\n\nweight of authority from other courts must have found the law to be as the\n\nplaintiff maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise v. Casper, 593\n\nF.3d 1163, 1167 (10th Cir. 2010)); accord A.M., 830 F.3d at 1135; Cox, 800 F.3d\n\nat 1247. As the Supreme Court has instructed, this “do[es] not require a case\n\ndirectly on point, but existing precedent must have placed the statutory or\n\nconstitutional question [regarding the illegality of the defendant’s conduct]\n\nbeyond debate.” al-Kidd, 563 U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d\n\n\n 22\n\f1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the\n\ncited authority to correspond exactly to the situation the plaintiff complains of,\n\nthe ‘plaintiff must demonstrate a substantial correspondence between the conduct\n\nin question and prior law allegedly establishing that the defendant’s actions were\n\nclearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d 1179,\n\n1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]\n\ncourts . . . not to define clearly established law at a high level of generality.” al-\n\nKidd, 563 U.S. at 742 (citation omitted); accord Mullenix, 136 S. Ct. at 308.\n\n“[D]oing so avoids the crucial question [of] whether the official acted reasonably\n\nin the particular circumstances that he or she faced.” Plumhoff v. Rickard, 572\n\nU.S. 765, 779 (2014) (emphasis added); accord Estate of B.I.C., 761 F.3d at 1106.\n\nIn this connection, it bears underscoring that the federal right allegedly violated\n\nmust have been “clearly established at the time of the defendant’s unlawful\n\nconduct.” Cillo, 739 F.3d at 460.\n\n In furthering the protective aims of qualified immunity, it is important that\n\ncourts be especially sensitive to the need to ensure “a substantial correspondence\n\nbetween the conduct in question and prior law allegedly establishing that the\n\ndefendant’s actions were clearly prohibited,” Estate of B.I.C., 761 F.3d at 1106\n\n(quoting Trotter, 219 F.3d at 1184)), where the legal standards of liability under\n\nthe prior law are broad and general or depend on a balancing of discrete and\n\nsometimes opposing interests. See Mullenix, 136 S. Ct. at 308 (holding that\n\n\n 23\n\f“specificity [in defining clearly-established law] is especially important in the\n\nFourth Amendment context” because “[i]t is sometimes difficult for an officer to\n\ndetermine how the relevant legal doctrine . . . will apply to the factual situation\n\nthe officer confronts” (second alteration in original) (quoting Saucier v. Katz, 533\n\nU.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,\n\n555 U.S. 223, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,\n\n579 F.3d 1171, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 844 F.3d 870, 877\n\n(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very\n\nmuch on the facts of each case,’ and the precedents must ‘squarely govern’ the\n\npresent case [to constitute clearly-established law].” (quoting Mullenix, 136 S. Ct.\n\nat 309)); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.\n\n1992) (addressing a substantive due-process claim and stating that “allegations of\n\nconstitutional violations that require courts to balance competing interests may\n\nmake it more difficult to find the law ‘clearly established’ when assessing claims\n\nof qualified immunity”), overruled in part on other grounds by County of\n\nSacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672\n\nF.3d 1185, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 879 F.2d\n\n706, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First\n\nAmendment, and noting that, “because a rule of law determined by a balancing of\n\ninterests is inevitably difficult to clearly anticipate, it follows that where . . .\n\nbalancing is required, the law is less likely to be well established than in other\n\n\n 24\n\fcases”), modified on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991) (en\n\nbanc). The legal standard governing liability under the rubric of substantive due\n\nprocess evinces these attributes.\n\n Specifically, the standard for liability for a violation of a person’s\n\nsubstantive due-process rights is broad and general. See Washington v.\n\nGlucksberg, 521 U.S. 702, 722 (1997) (stating that the rights protected under\n\nsubstantive due process have “never [been] fully clarified, to be sure, and perhaps\n\n[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 503\n\nU.S. 115, 125 (1992) (describing substantive due process as an “unchartered area”\n\nin which the “guideposts for responsible decisionmaking . . . are scarce and\n\nopen-ended”). Furthermore and relatedly, consideration of whether a person’s\n\nsubstantive due-process rights have been infringed “requires a ‘balancing [of the\n\nperson’s constitutionally protected] interests against the relevant state interests.’”\n\nJ.B. v. Washington Cty., 127 F.3d 919, 927 (10th Cir. 1997) (quoting Youngberg\n\nv. Romeo, 457 U.S. 307, 321 (1982)).\n\n Thus, in our assessment here of whether Director Dean’s conduct violated\n\nPlaintiffs’ clearly-established substantive due-process rights, we must be\n\nespecially sensitive to whether existing relevant precedents at the time he acted\n\n“squarely govern[ed],” Mullenix, 136 S. Ct. at 310, “the particular circumstances\n\nthat he . . . faced,” Plumhoff, 572 U.S. at 779 (emphasis added), and demonstrated\n\n\n\n\n 25\n\fthat the “violative nature of the particular conduct is clearly established.”\n\nAldaba, 844 F.3d at 877 (quoting Mullenix, 136 S. Ct. at 308).\n\n\n\n B\n\n Director Dean challenges the district court’s conclusion as to both prongs\n\nof the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive\n\ndue-process rights and that he did so in violation of clearly-established federal\n\nlaw. We agree with Director Dean that he did not violate clearly-established\n\nfederal law and thus conclude that he is entitled to the defense of qualified\n\nimmunity. However, we first address Plaintiffs’ argument that the\n\nqualified-immunity defense is unavailable because Director Dean’s obligation to\n\nset CBA-based rates was a ministerial duty, rather than a discretionary function of\n\nhis position.\n\n 1\n\n Qualified immunity only shields an official in the exercise of his or her\n\ndiscretion. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)\n\n(“Under the qualified immunity doctrine, ‘government officials performing\n\ndiscretionary functions, generally are shielded from liability for civil damages\n\ninsofar as their conduct does not violate clearly established [federal] statutory or\n\nconstitutional rights of which a reasonable person would have known.’”\n\n(alteration in original) (emphasis added) (quoting Harlow, 457 U.S. at 818)).\n\n\n 26\n\fPlaintiffs contend that Director Dean’s duty to issue new prevailing rates for\n\nwages and fringe benefits pursuant to the Act was nondiscretionary, rendering\n\nqualified immunity inapplicable here. For support, they rely primarily on the\n\nNew Mexico Supreme Court’s statement in Dean that “under the Act, specifically\n\nSection 13-4-11, the Director has a mandatory, nondiscretionary duty to set\n\nprevailing wage and prevailing benefit rates the same as those negotiated in\n\napplicable CBAs.” 353 P.3d at 1218. Director Dean responds that his duty was\n\nin fact discretionary because it involved interpreting the Act.\n\n We agree with Director Dean that his duty to publish prevailing rates\n\ninvolved substantial discretion as that term applies in the federal qualified-\n\nimmunity context, and that he therefore may avail himself of the qualified-\n\nimmunity defense. Director Dean’s implementation of the Act required him to\n\ninterpret the language of a state statute. And although the New Mexico Supreme\n\nCourt eventually held that Defendants’ interpretation was contrary to the 2009\n\nAmendments, see Dean, 353 P.3d at 1218, interpretation of state law is exactly\n\nthe kind of discretionary function for which the qualified-immunity defense\n\nagainst federal liability applies.\n\n The Supreme Court made this clear in Davis v. Scherer, 468 U.S. 183\n\n(1984), where it reversed the district court’s denial of qualified immunity based\n\nupon a finding that the defendants had violated a clear mandate of state law in\n\nterminating plaintiff’s employment without following certain pretermination\n\n\n 27\n\fprocedures. Id. at 193. The Court proceeded to craft a narrow scope for the\n\n“ministerial duty” exception to qualified immunity. Id. at 196 n.14. The Court\n\nexplained that a law that “fails to specify the precise action that the official must\n\ntake in each instance creates only discretionary authority; and that authority\n\nremains discretionary however egregiously it is abused.” Id. Thus, the Davis\n\nCourt reasoned, even assuming that the defendants had “ignored a clear legal\n\ncommand” to follow various pre-termination procedures before ending the\n\nplaintiff’s employment, this duty was discretionary given that the state regulation\n\nin question left to them to interpret various terms contained in those\n\npretermination procedures, including “a complete investigation” and a “thorough\n\nstudy of all information.” Id. These indefinite terms provided the defendants\n\nwith a “substantial measure of discretion” and thus allowed them to exercise\n\nauthority that is discretionary, rather than ministerial. Id.\n\n Similarly, the Act left to Director Dean a substantial measure of discretion\n\nin interpreting its terms. The Act requires the director to establish prevailing\n\nrates “at the same wage rates and fringe benefit rates used in collective bargaining\n\nagreements,” but leaves to the director substantial discretion to determine the\n\nmethod of collecting and aggregating data, and, perhaps most importantly for our\n\npresent inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West\n\n2009).\n\n\n\n\n 28\n\f Notably, Plaintiffs fail to cite any caselaw addressing federal qualified\n\nimmunity that would support a contrary result. And though the New Mexico\n\nSupreme Court held that “the Director has a mandatory, nondiscretionary duty to\n\nset the same prevailing wage and prevailing benefit rates as those negotiated in\n\napplicable CBAs,” Dean, 353 P.3d at 1214, the analytical context of the state\n\ncourt’s description of Director Dean’s duty as “mandatory” and\n\n“nondiscretionary” is important. The court’s description relates to the availability\n\nof mandamus relief under New Mexico law. Id. at 1214. While we ordinarily\n\ndefer to a state court’s interpretation of a state statute, see United States v.\n\nDeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts\n\nare the final arbiters of state law.”), the issue before us concerns not whether\n\nmandamus is available under New Mexico law, but whether qualified immunity\n\nbars liability under federal law. We therefore apply a federal standard to\n\ndetermine whether Director Dean’s obligations were sufficiently discretionary to\n\nwarrant the protections of the qualified-immunity defense under federal law, and\n\nwe conclude that the United States Supreme Court’s language in Davis compels\n\nour conclusion that such protections are available here.\n\n Director Dean’s interpretation and implementation of the Act were\n\ntherefore matters within his discretion, and he is protected from liability under\n\n§ 1983 unless his conduct violated clearly-established federal law.\n\n 2\n\n\n 29\n\f Turning finally to the issue of whether Director Dean is entitled to qualified\n\nimmunity under the circumstances giving rise to this § 1983 suit, we conclude\n\nthat his actions did not violate clearly-established federal law. Specifically, we\n\nconclude that Plaintiffs have failed to meet the second prong of the qualified-\n\nimmunity analysis—i.e., Plaintiffs have failed to identify clearly-established law\n\nthat would have put Director Dean on notice that his conduct would give rise to\n\nliability under federal law—and thus we need not reach the first prong of the\n\nqualified-immunity analysis, i.e., whether Director Dean’s conduct in fact\n\nviolated Plaintiffs’ rights to substantive due process. See A.M., 830 F.3d\n\nat 1134–35.\n\n The district court denied qualified immunity based upon a finding that “the\n\nAct clearly and unambiguously required the Director to set prevailing wage rates\n\naccording to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and\n\nurge us to affirm.\n\n But the district court’s reasoning is flawed because it equates a violation of\n\na clear obligation under state law 4 with a violation of clearly-established federal\n\n 4\n Director Dean argues, in his opening brief, that he followed a\n“normal process” by refraining from implementing the Act during the pendency of\nthe challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he\nargues that “state law was ambiguous at the time,” given that an appeal to the LIC\ntypically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the\nLIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.\nSee Def.’s Opening Br. at 27–28.\n\n (continued...)\n\n 30\n\flaw. Whether Director Dean violated clearly-established state law in failing to set\n\nCBA-based rates, however, is an entirely separate question from whether that\n\nfailure violated clearly-established federal law. And even if Director Dean had\n\nnotice that his reading of the Act was incorrect as a matter of state law, this\n\nwould not necessarily deprive him of qualified immunity from liability under\n\nfederal law. See Davis, 468 U.S. at 194 (“Officials sued for constitutional\n\nviolations do not lose their qualified immunity merely because their conduct\n\nviolates some statutory or administrative provision [of state law].”); Stanley v.\n\nGallegos, 852 F.3d 1210, 1224 (10th Cir. 2017) (Holmes, J., concurring in the\n\njudgment) (noting that Davis forecloses the argument that “if an official acts\n\noutside of his scope of authority, as defined by clearly established state law, he\n\n‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of\n\nhis defense that his actions did not violate clearly established federal law”); cf.\n\n\n\n 4\n (...continued)\n However, during oral arguments before this court, Director Dean’s counsel\nconceded that there was no confusion regarding the director’s state-law\nobligations—irrespective of whether a stay was in effect—once the secretary’s\ncounsel represented to the New Mexico Supreme Court that DWS would update\nthe prevailing rates. Thus, we deem any argument that the director’s obligation\nunder state law was ambiguous as either waived due to inadequate briefing on\nappeal or abandoned by counsel’s affirmative admission during oral argument, see\nUnited States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011); United States v.\nCarrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007), at least insofar as\nthe argument bears upon the clearly-established-law prong of the qualified-\nimmunity analysis—viz., insofar as any ambiguity might have supported the idea\nthat a reasonable state official in Director Dean’s position would not have been on\nfair notice of a violation of federal law.\n\n 31\n\fDahn v. Amedei, 867 F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of\n\nqualified immunity upon finding no violation of clearly-established federal law,\n\nbut noting that Defendants’ conduct could “very well expose them to tort\n\nliability” under state law).\n\n Neither the district court nor Plaintiffs have identified any case from the\n\nSupreme Court or this court finding a defendant liable under federal law in\n\nfactually similar circumstances, i.e., where a public official in the same or similar\n\nposition as Director Dean was held liable under federal law for failing to set rates\n\nfor wages and fringe benefits (or for similar items) in apparent contravention of\n\nstate law that required him to do so. Given that Plaintiffs bear the burden of\n\npresenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,\n\n841 F.3d 895, 900 (10th Cir. 2016), this failure proves fatal to their position.\n\n Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act\n\ncreated a clearly-established right for purposes of qualified immunity by virtue of\n\nits “clear and unambiguous” description of Director Dean’s duties. These cases,\n\nhowever, do not speak to the legal issue present here and are without controlling\n\nforce in this circuit.\n\n The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)\n\n(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it\n\nis notable that Gardner is an out-of-circuit unpublished decision; even assuming\n\nthat such a decision is entitled to any consideration at all in the clearly-\n\n\n 32\n\festablished-law analysis, that consideration would be minimal. See Morris, 672\n\nF.3d at 1197 n.5 (observing that “a single unpublished district court opinion is not\n\nsufficient to render the law clearly established,” but, in discussing “unpublished\n\ncases from this court,” noting that “we have never held that a district court must\n\nignore unpublished opinions in deciding whether the law is clearly established”);\n\nMecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (noting, in the context\n\nof discussing the import of an unpublished Tenth Circuit decision, that “[a]n\n\nunpublished opinion, . . . even if the facts were closer, provides little support for\n\nthe notion that the law is clearly established”); cf. Grissom v. Roberts, 902 F.3d\n\n1162, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of\n\nMecham but noting that, on the other hand, “an unpublished opinion can be quite\n\nrelevant in showing that the law was not clearly established,” specifically when\n\n“the same alleged victim and same defendant conduct are involved”).\n\n Furthermore, even focusing on the merits, Gardner lends Plaintiffs little\n\nsuccor. There, a panel of the Sixth Circuit concluded that a state trooper had\n\nviolated an individual’s clearly-established Fourth Amendment rights by arresting\n\nhim without probable cause given that it was “unambiguous and not reasonably\n\nopen to an alternative interpretation” that the state statutes used to justify the\n\narrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently\n\ndistinguishable because there it was undisputed that effecting an arrest without\n\nprobable cause would constitute a violation of Fourth Amendment Rights. In\n\n\n 33\n\fcontrast, here it is disputed that Director Dean’s failure to determine prevailing\n\nrates constituted any violation of federal rights. More fundamentally, Gardner\n\nsimply highlights in unremarkable fashion the “inevitable importance” in certain\n\nlegal settings of state law to our assessment of whether the plaintiff may “show a\n\nviolation of his federal rights.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th\n\nCir. 2012). “The basic federal constitutional right of freedom from arrest without\n\nprobable cause is undoubtedly clearly established by federal cases. But the\n\nprecise scope of that right uniquely depends on the contours of a state’s\n\nsubstantive criminal law” where, as in Gardner, the issue is whether the law\n\nenforcement officer “had probable cause based on a state criminal statute.” Id.\n\nat 1300–01 (citation omitted) (citing Keylon v. City of Albuquerque, 535 F.3d\n\n1210, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is\n\nessential to discern the content of state law—the rights being vindicated through\n\n§ 1983 are federal.” A.M., 830 F.3d at 1141. Gardner does not purport to alter\n\nthis federal-law focus of § 1983 liability. Nor does Gardner suggest that state-\n\nlaw violations play a similarly significant role in the context of substantive due-\n\nprocess violations, much less clearly establish that Director Dean’s alleged\n\nviolation of clearly-established state law in failing to set CBA-based rates would\n\neffect a violation of substantive due process. Thus, Plaintiffs’ reliance on\n\nGardner is unavailing.\n\n\n\n\n 34\n\f The second case Plaintiffs cite is Brooks v. George County, 84 F.3d 157\n\n(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied\n\nqualified immunity to a sheriff that had failed to meet his obligation under state\n\nlaw to keep records that were to be used to pay pretrial detainees. Id. at 164–65.\n\nBut the Fifth Circuit’s decision to deny qualified immunity there rested entirely\n\non its determination, based on a reading of the state statute in question, that the\n\nsheriff’s duty was non-discretionary. Id. However, as stated supra, we have\n\ndetermined that Director Dean’s duties under the 2009 Amendments were in fact\n\ndiscretionary for purposes of qualified immunity under federal law. Therefore,\n\nBrooks does not help Plaintiffs either.\n\n Because Plaintiffs have offered no authority clearly establishing that\n\nDirector Dean violated their substantive due-process rights under federal law by\n\nfailing to discharge his state-law obligation under the Act to publish CBA-based\n\nrates for wages and fringe benefits, we conclude that Director Dean is entitled to\n\nqualified immunity. 5\n\n IV\n\n\n\n 5\n Since our inquiry here solely concerned whether Director Dean\nviolated clearly-established federal law for purposes of determining whether he is\nentitled to qualified immunity from liability under federal law, see Davis, 468\nU.S. at 194, we have no occasion to question the New Mexico Supreme Court’s\nreading of the 2009 Amendments, or to decide whether Director Dean’s conduct\nin fact violated state law. Our opinion thus does not preclude Plaintiffs from\nseeking any available relief for Defendants’ purported violations of New Mexico\nlaw in state court.\n\n 35\n\f For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the\n\ngrant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we\n\nREVERSE the district court’s judgment in Case No. 17-2072 and REMAND the\n\ncase and instruct the court to grant Director Dean qualified immunity with respect\n\nto Plaintiffs’ substantive due-process claim.\n\n\n\n\n 36\n[END_CASE]", "role": "user" } ]
4,584,820	MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee.	MTI, Inc. v. Emp'rs Ins. Co. of Wausau	2019-01-25	17-6206	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, McKay, Matheson", "parties": "", "opinions": [{"author": "LUCERO, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 25, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nMTI, INC., formerly Midwest Towers,\nInc.,\n\n Plaintiff - Appellant\n\nv. No. 17-6206\n\nEMPLOYERS INSURANCE COMPANY\nOF WAUSAU,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Western District of Oklahoma\n (D.C. No. 5:15-CV-00716-R)\n _________________________________\n\nF. Thomas Cordell, Frailey, Chaffin, Cordell, Perryman & Sterkel, LLP, Chickasha,\nOklahoma, (Mort G. Welch, Welch & Smith, P.C., Oklahoma City, Oklahoma, with him\non the briefs), for Plaintiff-Appellant.\n\nJeffrey Gerish, Plunkett Cooney, P.C., Bloomfield Hills, Michigan, (Joseph R. Farris and\nEmily D. Pearson, Franden, Farris, Quillin, Goodnight & Roberts, Tulsa, Oklahoma, with\nhim on the briefs), for Defendant-Appellee.\n\n _________________________________\n\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\n _________________________________\n\nLUCERO, Circuit Judge.\n _________________________________\n\f In this appeal, we consider two exclusions from a commercial general liability\n\npolicy that bar coverage for damage to “that particular part” of the property on which\n\nan insured is performing operations, or which must be repaired or replaced due to the\n\ninsured’s incorrect work. Under Oklahoma law, our analysis proceeds in two steps.\n\nFirst, we must determine as a matter of law whether the exclusions are ambiguous.\n\nKerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla. 1995). We\n\nconclude the phrase “that particular part” is susceptible to more than one reasonable\n\nconstruction: it could refer to the distinct component upon which an insured works\n\nor to all parts ultimately impacted by that work.\n\n Because the language at issue is ambiguous we proceed to the second step, in\n\nwhich “the contract will be interpreted consistent with the mutual intent of the\n\nparties, with the ambiguity resolved most favorably to the insured and against the\n\ninsurance carrier.” Id. We thus adopt the narrower interpretation of the phrase “that\n\nparticular part,” under which the exclusion extends only to the distinct components\n\nupon which work was performed. Exercising jurisdiction under 28 U.S.C. § 1291,\n\nwe reverse.\n\n I\n\n Western Farmers Electrical Cooperative (“WFEC”) owns cooling towers in\n\nOklahoma, which were serviced by MTI, Inc. (“MTI”), the appellant in this case.\n\nEmployers Insurance Company of Wausau (“Wausau”), the appellee, provided a\n\ncommercial general liability policy (the “Policy”) to MTI at all times material to this\n\nappeal.\n\n 2\n\f A 2011 inspection by MTI revealed that the anchor bolts in Cooling Tower 1\n\nwere corroded. MTI and WFEC agreed to a new repair contract, which included the\n\nfollowing work:\n\n Unit 1 Tower Anchors\n Throughout the entire basin, install new 304 SS anchor castings.\n Included will be 304SS anchor bolts and Hilti anchor adhesive.\n\n Unit 1 Louvers\n On four (4) cells, remove existing louvers and install a (3) row louver\n system. New louvers will consist of 12oz. 4.2” corrugated FRP panels\n supported on 2”x4” Douglas Fir supports. Included will be new\n polypropylene support arms. Also included will be all necessary 304\n stainless steel hardware.\n\nRepairs on a separate cooling tower were also listed in the Tower 1 contract. The\n\ncooling towers at issue are mostly wood structures, approximately 50 feet wide, 150\n\nfeet long, and 70 feet tall. They are set in sump pits approximately 12 feet deep. The\n\ntowers are stabilized with lateral wooden bracing beams, which are connected to the\n\nconcrete foundation of the sump pit with anchor bolts.\n\n On May 23, 2011, MTI employees removed all 64 corroded anchor bolts in\n\nTower 1. Because the adhesive applicator had not yet arrived, MTI did not\n\nimmediately install new anchor bolts. Further, MTI did not provide any temporary\n\nsupport to ensure the stability of the tower. On the night of May 24, extremely high\n\nwinds struck the tower, causing it to lean and several structural components to break.\n\nDue to the extent of the structural damage, removal and replacement of the tower was\n\ndetermined to be the only viable option. Although at least some internal operational\n\n\n\n\n 3\n\fequipment was not damaged, this equipment was deemed too dangerous to access and\n\nrecover.\n\n WFEC demanded MTI pay the cost of removing and replacing the entire\n\ntower, which totaled over $1.4 million. MTI filed a claim for coverage with its\n\ninsurer, Wausau, under the Policy. After Wausau declined to provide coverage, MTI\n\ndirectly negotiated a settlement of $350,000 with WFEC. The balance of the tower\n\nreplacement cost was borne by WFEC’s insurer. MTI then sought recoupment of its\n\nsettlement amount from Wausau.\n\n The parties agree that the Policy was active at the time of the incident.\n\nWausau denied coverage under two exclusions. Those provisions bar coverage for:\n\n j. Damage To Property\n\n “Property damage” to:\n ....\n\n (5) That particular part of real property on which you or any contractors\n or subcontractors working directly or indirectly on your behalf are\n performing operations, if the “property damage” arises out of those\n operations; or\n\n (6) That particular part of any property that must be restored, repaired or\n replaced because “your work” was incorrectly performed on it.\n\n MTI eventually filed suit against Wausau in Oklahoma state court for breach\n\nof contract. Wausau removed the case to federal court. On Wausau’s motion for\n\nsummary judgment, the district court held that the events described fell within the\n\nscope of both exclusion j(5) and j(6), and entered judgment in favor of Wausau. MTI\n\ntimely appealed.\n\n\n 4\n\f II\n\n We review a district court’s grant of summary judgment de novo. Greystone\n\nConstr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1277 (10th Cir. 2011),\n\nas amended on reh’g in part (Dec. 23, 2011). Summary judgment is appropriate only\n\nif there is no genuine issue of material fact and the moving party is entitled to\n\njudgment as a matter of law. Id. We also review a district court’s interpretation of\n\nstate contract law de novo. City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282, 1286\n\n(10th Cir. 1994).\n\n Because this is a diversity action, we “apply the substantive law of the forum\n\nstate.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,\n\n1255 (10th Cir. 2005). The parties agree that MTI’s claim is governed by Oklahoma\n\ncontract law, and that there are no binding decisions on this precise issue from the\n\nstate courts. We accordingly seek to predict how the Oklahoma Supreme Court\n\nwould rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).\n\n A\n\n Under Oklahoma law, “[w]hen addressing a dispute concerning the language\n\nof an insurance policy our first step is to determine as a matter of law whether the\n\npolicy language at issue is ambiguous.” Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,\n\n706 (Okla. 2002). A provision is ambiguous if it is facially susceptible to two\n\ninterpretations, considered from the standpoint of a reasonably prudent layperson. Id.\n\nIf the language is not ambiguous, “we accept the language in its plain, ordinary and\n\npopular sense.” Id.\n\n 5\n\f Our initial inquiry is thus whether exclusions j(5) and j(6) are ambiguous.\n\nExclusion j(5) excludes coverage for property damage to “[t]hat particular part . . . on\n\nwhich you . . . are performing operations, if the ‘property damage’ arises out of those\n\noperations.” Similarly, exclusion j(6) excludes property damage to “[t]hat particular\n\npart of any property that must be restored, repaired or replaced because ‘your work’\n\nwas incorrectly performed on it.” The key phrase for this appeal is “that particular\n\npart.”\n\n Although the Oklahoma Supreme Court has not explicitly addressed this\n\nlanguage, these specific exclusions have received inconsistent treatment from a\n\nnumber of other state and federal courts. See, e.g., Roaring Lion, LLC v. Nautilus\n\nIns. Co., No. CV 11-2-M-DWM-JCL, 2011 WL 3956132, at *5-7 (D. Mont. July 15,\n\n2011) (unpublished) (noting the varied interpretations of these exclusions). The fact\n\nthat jurisdictions have differed in their evaluation of terms does not, however,\n\nestablish that the language in question is necessarily ambiguous. BP Am., Inc. v.\n\nState Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 836 (Okla. 2005), as corrected (Oct.\n\n30, 2006).\n\n As several courts have explained, “that particular part” is narrowing language.\n\nSee Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th\n\nCir. 2010) (describing the words “that particular part” as “trebly restrictive, straining\n\nto the point of awkwardness to make clear that the exclusion applies only to building\n\nparts on which defective work was performed, and not to the building generally”);\n\nMid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215 (5th Cir. 2009) (noting\n\n 6\n\f“[t]he narrowing ‘that particular part’ language”); Columbia Mut. Ins. Co. v. Schauf,\n\n967 S.W.2d 74, 80 (Mo. 1998) (“By using the words particular part, the provision\n\nevidences the intent to narrow the scope of the exclusion as much as possible.”\n\n(emphasis omitted)); ACUITY v. Burd & Smith Constr., Inc., 721 N.W.2d 33, 41\n\n(N.D. 2006) (pointing to “the limiting language ‘particular part of real property’”);\n\nGlob. Modular, Inc. v. Kadena Pac., Inc., 222 Cal. Rptr. 3d 819, 829 (Cal. Ct. App.\n\n2017) (holding that “the phrase is intended to be a narrowing element, one that limits\n\nthe provision’s application to a distinct part of a construction project”). These courts\n\nhave thus determined the scope of coverage by looking to the “distinct component\n\nparts” on which an insured conducts operations. Mid-Continent, 557 F.3d at 217.\n\n Several of these cases are instructive. In Mid-Continent, the Fifth Circuit held\n\nthat exclusion j(6) did not bar coverage for damage to interior work caused by the\n\nfailure to properly water seal exterior finishes and retaining walls because “[t]he\n\nexterior finishes and retaining walls were distinct component parts that were each the\n\nsubject of separate construction processes and are severable from the” interior\n\ncomponents. Id. Similarly, in Fortney & Weygandt, the Sixth Circuit concluded that\n\nexclusion j(6) did not bar coverage for a restaurant that had to be completely rebuilt\n\ndue to faulty foundation work by the insured. 595 F.3d at 309-11. In ACUITY, the\n\nNorth Dakota Supreme Court held that a contractor hired to do work on a roof could\n\nrecover for damage to the interior of an apartment building caused by defective work\n\non the roof. 721 N.W.2d at 42. And in Shauf, the Missouri Supreme Court\n\nconcluded that only kitchen cabinets were excluded when a machine being used on\n\n 7\n\fthose cabinets caused a fire that resulted in damage throughout a home. 967 S.W.2d\n\nat 76, 81.\n\n Other courts have adopted a broader reading. For example, in William\n\nCrawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157 (S.D.N.Y. 1993), the court\n\nrejected the argument that “(j)(5) only excludes coverage for the damage to that\n\nspecific part of the apartment on which [the insured] was actually doing work when\n\nthe accident occurred,” instead holding that damage to the entire apartment was\n\nexcluded. Id. at 158. Similarly, in Jet Line Services, Inc. v. American Employers\n\nIns. Co., 537 N.E.2d 107 (Mass. 1989), the court remarked that “whether at the time\n\nof the property damage an employee of the insured is or is not in one area or another\n\nof the property on which the insured has agreed to perform operations is not\n\nsignificant to the coverage question.” Id. at 111.\n\n Under Oklahoma law, it is the responsibility of the insurer desiring to limit\n\nliability to employ clear language in the contract. Haworth v. Jantzen, 172 P.3d 193,\n\n197 (Okla. 2006). Wausau has failed to do so in this case. The phrase “that\n\nparticular part” could be read to refer solely to the direct object on which the insured\n\nwas operating. Alternatively, it could apply to those parts of the project directly\n\nimpacted by the insured party’s work. We agree with those courts that have held the\n\nformer interpretation is a reasonable one, although we acknowledge that the latter is\n\nalso reasonable. Because both readings are permissible, the exclusions are facially\n\nambiguous. Cranfill, 49 P.3d at 706.\n\n\n\n 8\n\f B\n\n “If the language is ambiguous, we apply well-settled rules of construction to\n\ndetermine the meaning of the ambiguous language.” Id. Specifically, it is our\n\nmandate to “construe the policy to give a reasonable effect to all of its provisions,\n\nand we liberally construe words of inclusion in favor of the insured and strictly\n\nconstrue words of exclusion against the insurer.” Id. (citation omitted); see also\n\nDodson v. St. Paul Ins. Co., 812 P.2d 372, 377 (Okla. 1991) (“In case of doubt,\n\nexclusions exempting certain specified risks are construed strictly against the\n\ninsurer.”).\n\n Because the exclusions are ambiguous, they must be strictly and narrowly\n\nconstrued in a manner favorable to the insured party. Haworth, 172 P.3d at 197. “In\n\nconstruing an ambiguity or uncertainty against the insurer and in favor of the insured,\n\nOklahoma looks to the objectively reasonable expectations of the insured to fashion a\n\nremedy.” Id. Further, “an interpretation which makes a contract fair and reasonable\n\nis selected over that which yields a harsh or unreasonable result.” Max True\n\nPlastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 865 (Okla. 1996). In this\n\ncase, interpreting “that particular part” to refer to the distinct components upon which\n\nwork is performed best comports with these rules of interpretation.\n\n Even under this definition, determining the “particular part” on which an\n\ninsured works “will vary with the facts and circumstances of each particular case.”\n\nVinsant Elec. Contractors v. Aetna Cas. & Sur. Co., 530 S.W.2d 76, 77 (Tenn. 1975).\n\nIn some instances, a larger unit will properly be considered the particular part. See,\n\n 9\n\fe.g., Jet Line Servs., 537 N.E.2d at 111 (concluding exclusion j(5) barred coverage\n\nfor entire fuel tank rather than only the bottom portion of the tank because insured\n\n“was retained to clean the entire tank, and it was the entire tank on which operations\n\nwere being performed within the meaning of the policy language”). In some cases,\n\nan entire structure may qualify. For example, several cases have held that the\n\nexclusions so apply when an insured was hired to raise the entire structure. See, e.g.,\n\nLafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 834 (S.D. Miss. 2011); Grinnell\n\nMut. Reinsurance Co. v. Lynne, 686 N.W.2d 118, 125 (N.D. 2004).\n\n As applied to the facts of this case, we conclude the “particular part” on which\n\nMTI was “performing operations” and upon which work “was incorrectly performed”\n\nshould reasonably be understood as the anchor bolts. Those bolts constitute “distinct\n\ncomponent parts” of the tower, analogous to items like “interior drywall, stud\n\nframing, electrical wiring, and wood flooring.” Mid-Continent, 557 F.3d at 217.\n\nMTI performed work incorrectly by removing them without promptly replacing them\n\nor bracing the structure. We further conclude it is objectively reasonable that MTI\n\nwould expect coverage for the cost of replacing the entire tower, including all of its\n\noperational elements, given the ambiguous language of exclusions j(5) and j(6).\n\n C\n\n Contrary to Wausau’s assertion, interpreting the Policy in this manner does not\n\nconvert it into a performance bond. See generally Black & Veatch Corp. v. Aspen\n\nIns. (Uk) Ltd, 882 F.3d 952, 969 (10th Cir. 2018) (“Both insurance policies and\n\nperformance bonds are used to spread risk, but they differ in fundamental ways. An\n\n 10\n\finsurance policy spreads the contractor’s risk. A performance bond guarantees\n\ncompletion of the contract upon the contractor’s default.”). In Dodson, the\n\nOklahoma Supreme Court, interpreting a different policy provision, noted that it\n\nwould be inappropriate to “effectively convert [a] policy into a performance bond or\n\nguarantee of contractual performance” by reading a policy to cover “the repair and\n\nreplacement of the insured’s own faulty workmanship.” 812 P.2d at 378 (quotation\n\nomitted). But that concern is not at issue here. MTI is not requesting that Wausau\n\ncover the cost of replacing the anchor bolts, which would be the heart of any faulty\n\nworkmanship claim. The Dodson decision recognized this distinction, stating that a\n\npolicy would provide coverage if the insured’s faulty workmanship “results in\n\ndamage to property other than the insured’s work or product.” Id. (quotation\n\nomitted). The monetary values at issue underline this point. MTI agreed to complete\n\ncertain work for $46,273. A performance bond for such a project would not likely\n\nresult in liability of over $1.4 million.\n\n Similarly, we are not persuaded by Wausau’s argument that the Policy\n\ncontains an implied “business risk exclusion” that would otherwise override the\n\nexpress language. Absent a violation of public policy, businesses are free to contract\n\nto their preferred degree of risk embodied by the precise terms by which they choose\n\nto articulate the insurance relationship. See generally Siloam Springs Hotel, LLC v.\n\nCentury Sur. Co., 392 P.3d 262, 268 (Okla. 2017). Oklahoma courts do not, as a\n\nmatter of course, read broad business risk exclusions into contracts, and this court\n\nwill not do so when it would override the express language of the contract. See Mid-\n\n 11\n\fContinent, 557 F.3d at 216 (dismissing similar argument because “whether there is\n\ncoverage in a particular case depends on the language contained in the policy at\n\nissue”).\n\n Finally, we reject Wausau’s contention that this court has previously decided\n\nthe issue presented. Our court has considered these exclusions, albeit under Kansas\n\nlaw. See Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003 (10th\n\nCir. 2006). In that case, we held that exclusions j(5) and j(6) apply when property\n\ndamage occurs while the insured’s work is ongoing regardless of when the damage is\n\ndiscovered. Id. at 1010-12. Wausau focuses on two sentences of that opinion. We\n\nstated that exclusion j(5) applies “whenever property damage arises out of the work\n\nof the insured, its contractors, or its subcontractors while performing operations.” Id.\n\nat 1011 (quotation and italics omitted). We also stated that exclusion j(6) “was\n\nintended to exclude ‘property damage’ that directly or consequentially occurs from\n\nthe faulty workmanship of the insured.” Id. at 1012.\n\n But Advantage did not address the meaning of the phrase “that particular part.”\n\nIt had no occasion to do so because the insured there contracted to build entire\n\nhomes. Id. at 1009. Accordingly, any statement made in Advantage as to that\n\nquestion would constitute dicta. And as we have previously noted, dicta, “being\n\nperipheral, may not have received the full and careful consideration of the court that\n\nuttered it.” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000)\n\n(quotation omitted). Further, Wausau’s argument based on Advantage plainly goes\n\ntoo far. If, for example, portions of Tower 1 broke free during the windstorm and\n\n 12\n\fdestroyed nearby homes, that damage would fit within the description offered in\n\nAdvantage. 470 F.3d at 1011, 1012. But there is no argument to be made that nearby\n\nhomes would qualify as “that particular part” of the property on which MTI was\n\nworking.\n\n III\n\n For the forgoing reasons, we REVERSE the district court’s grant of summary\n\njudgment in favor of Wausau and remand for further proceedings construing the\n\nambiguous exclusions in favor of MTI.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362073/", "author_raw": "LUCERO, Circuit Judge."}]}	LUCERO	MCKAY	MATHESON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4584820/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 25, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nMTI, INC., formerly Midwest Towers,\nInc.,\n\n Plaintiff - Appellant\n\nv. No. 17-6206\n\nEMPLOYERS INSURANCE COMPANY\nOF WAUSAU,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Western District of Oklahoma\n (D.C. No. 5:15-CV-00716-R)\n _________________________________\n\nF. Thomas Cordell, Frailey, Chaffin, Cordell, Perryman & Sterkel, LLP, Chickasha,\nOklahoma, (Mort G. Welch, Welch & Smith, P.C., Oklahoma City, Oklahoma, with him\non the briefs), for Plaintiff-Appellant.\n\nJeffrey Gerish, Plunkett Cooney, P.C., Bloomfield Hills, Michigan, (Joseph R. Farris and\nEmily D. Pearson, Franden, Farris, Quillin, Goodnight & Roberts, Tulsa, Oklahoma, with\nhim on the briefs), for Defendant-Appellee.\n\n _________________________________\n\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\n _________________________________\n\nLUCERO, Circuit Judge.\n _________________________________\n\f In this appeal, we consider two exclusions from a commercial general liability\n\npolicy that bar coverage for damage to “that particular part” of the property on which\n\nan insured is performing operations, or which must be repaired or replaced due to the\n\ninsured’s incorrect work. Under Oklahoma law, our analysis proceeds in two steps.\n\nFirst, we must determine as a matter of law whether the exclusions are ambiguous.\n\nKerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla. 1995). We\n\nconclude the phrase “that particular part” is susceptible to more than one reasonable\n\nconstruction: it could refer to the distinct component upon which an insured works\n\nor to all parts ultimately impacted by that work.\n\n Because the language at issue is ambiguous we proceed to the second step, in\n\nwhich “the contract will be interpreted consistent with the mutual intent of the\n\nparties, with the ambiguity resolved most favorably to the insured and against the\n\ninsurance carrier.” Id. We thus adopt the narrower interpretation of the phrase “that\n\nparticular part,” under which the exclusion extends only to the distinct components\n\nupon which work was performed. Exercising jurisdiction under 28 U.S.C. § 1291,\n\nwe reverse.\n\n I\n\n Western Farmers Electrical Cooperative (“WFEC”) owns cooling towers in\n\nOklahoma, which were serviced by MTI, Inc. (“MTI”), the appellant in this case.\n\nEmployers Insurance Company of Wausau (“Wausau”), the appellee, provided a\n\ncommercial general liability policy (the “Policy”) to MTI at all times material to this\n\nappeal.\n\n 2\n\f A 2011 inspection by MTI revealed that the anchor bolts in Cooling Tower 1\n\nwere corroded. MTI and WFEC agreed to a new repair contract, which included the\n\nfollowing work:\n\n Unit 1 Tower Anchors\n Throughout the entire basin, install new 304 SS anchor castings.\n Included will be 304SS anchor bolts and Hilti anchor adhesive.\n\n Unit 1 Louvers\n On four (4) cells, remove existing louvers and install a (3) row louver\n system. New louvers will consist of 12oz. 4.2” corrugated FRP panels\n supported on 2”x4” Douglas Fir supports. Included will be new\n polypropylene support arms. Also included will be all necessary 304\n stainless steel hardware.\n\nRepairs on a separate cooling tower were also listed in the Tower 1 contract. The\n\ncooling towers at issue are mostly wood structures, approximately 50 feet wide, 150\n\nfeet long, and 70 feet tall. They are set in sump pits approximately 12 feet deep. The\n\ntowers are stabilized with lateral wooden bracing beams, which are connected to the\n\nconcrete foundation of the sump pit with anchor bolts.\n\n On May 23, 2011, MTI employees removed all 64 corroded anchor bolts in\n\nTower 1. Because the adhesive applicator had not yet arrived, MTI did not\n\nimmediately install new anchor bolts. Further, MTI did not provide any temporary\n\nsupport to ensure the stability of the tower. On the night of May 24, extremely high\n\nwinds struck the tower, causing it to lean and several structural components to break.\n\nDue to the extent of the structural damage, removal and replacement of the tower was\n\ndetermined to be the only viable option. Although at least some internal operational\n\n\n\n\n 3\n\fequipment was not damaged, this equipment was deemed too dangerous to access and\n\nrecover.\n\n WFEC demanded MTI pay the cost of removing and replacing the entire\n\ntower, which totaled over $1.4 million. MTI filed a claim for coverage with its\n\ninsurer, Wausau, under the Policy. After Wausau declined to provide coverage, MTI\n\ndirectly negotiated a settlement of $350,000 with WFEC. The balance of the tower\n\nreplacement cost was borne by WFEC’s insurer. MTI then sought recoupment of its\n\nsettlement amount from Wausau.\n\n The parties agree that the Policy was active at the time of the incident.\n\nWausau denied coverage under two exclusions. Those provisions bar coverage for:\n\n j. Damage To Property\n\n “Property damage” to:\n ....\n\n (5) That particular part of real property on which you or any contractors\n or subcontractors working directly or indirectly on your behalf are\n performing operations, if the “property damage” arises out of those\n operations; or\n\n (6) That particular part of any property that must be restored, repaired or\n replaced because “your work” was incorrectly performed on it.\n\n MTI eventually filed suit against Wausau in Oklahoma state court for breach\n\nof contract. Wausau removed the case to federal court. On Wausau’s motion for\n\nsummary judgment, the district court held that the events described fell within the\n\nscope of both exclusion j(5) and j(6), and entered judgment in favor of Wausau. MTI\n\ntimely appealed.\n\n\n 4\n\f II\n\n We review a district court’s grant of summary judgment de novo. Greystone\n\nConstr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1277 (10th Cir. 2011),\n\nas amended on reh’g in part (Dec. 23, 2011). Summary judgment is appropriate only\n\nif there is no genuine issue of material fact and the moving party is entitled to\n\njudgment as a matter of law. Id. We also review a district court’s interpretation of\n\nstate contract law de novo. City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282, 1286\n\n(10th Cir. 1994).\n\n Because this is a diversity action, we “apply the substantive law of the forum\n\nstate.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,\n\n1255 (10th Cir. 2005). The parties agree that MTI’s claim is governed by Oklahoma\n\ncontract law, and that there are no binding decisions on this precise issue from the\n\nstate courts. We accordingly seek to predict how the Oklahoma Supreme Court\n\nwould rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).\n\n A\n\n Under Oklahoma law, “[w]hen addressing a dispute concerning the language\n\nof an insurance policy our first step is to determine as a matter of law whether the\n\npolicy language at issue is ambiguous.” Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,\n\n706 (Okla. 2002). A provision is ambiguous if it is facially susceptible to two\n\ninterpretations, considered from the standpoint of a reasonably prudent layperson. Id.\n\nIf the language is not ambiguous, “we accept the language in its plain, ordinary and\n\npopular sense.” Id.\n\n 5\n\f Our initial inquiry is thus whether exclusions j(5) and j(6) are ambiguous.\n\nExclusion j(5) excludes coverage for property damage to “[t]hat particular part . . . on\n\nwhich you . . . are performing operations, if the ‘property damage’ arises out of those\n\noperations.” Similarly, exclusion j(6) excludes property damage to “[t]hat particular\n\npart of any property that must be restored, repaired or replaced because ‘your work’\n\nwas incorrectly performed on it.” The key phrase for this appeal is “that particular\n\npart.”\n\n Although the Oklahoma Supreme Court has not explicitly addressed this\n\nlanguage, these specific exclusions have received inconsistent treatment from a\n\nnumber of other state and federal courts. See, e.g., Roaring Lion, LLC v. Nautilus\n\nIns. Co., No. CV 11-2-M-DWM-JCL, 2011 WL 3956132, at *5-7 (D. Mont. July 15,\n\n2011) (unpublished) (noting the varied interpretations of these exclusions). The fact\n\nthat jurisdictions have differed in their evaluation of terms does not, however,\n\nestablish that the language in question is necessarily ambiguous. BP Am., Inc. v.\n\nState Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 836 (Okla. 2005), as corrected (Oct.\n\n30, 2006).\n\n As several courts have explained, “that particular part” is narrowing language.\n\nSee Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th\n\nCir. 2010) (describing the words “that particular part” as “trebly restrictive, straining\n\nto the point of awkwardness to make clear that the exclusion applies only to building\n\nparts on which defective work was performed, and not to the building generally”);\n\nMid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215 (5th Cir. 2009) (noting\n\n 6\n\f“[t]he narrowing ‘that particular part’ language”); Columbia Mut. Ins. Co. v. Schauf,\n\n967 S.W.2d 74, 80 (Mo. 1998) (“By using the words particular part, the provision\n\nevidences the intent to narrow the scope of the exclusion as much as possible.”\n\n(emphasis omitted)); ACUITY v. Burd & Smith Constr., Inc., 721 N.W.2d 33, 41\n\n(N.D. 2006) (pointing to “the limiting language ‘particular part of real property’”);\n\nGlob. Modular, Inc. v. Kadena Pac., Inc., 222 Cal. Rptr. 3d 819, 829 (Cal. Ct. App.\n\n2017) (holding that “the phrase is intended to be a narrowing element, one that limits\n\nthe provision’s application to a distinct part of a construction project”). These courts\n\nhave thus determined the scope of coverage by looking to the “distinct component\n\nparts” on which an insured conducts operations. Mid-Continent, 557 F.3d at 217.\n\n Several of these cases are instructive. In Mid-Continent, the Fifth Circuit held\n\nthat exclusion j(6) did not bar coverage for damage to interior work caused by the\n\nfailure to properly water seal exterior finishes and retaining walls because “[t]he\n\nexterior finishes and retaining walls were distinct component parts that were each the\n\nsubject of separate construction processes and are severable from the” interior\n\ncomponents. Id. Similarly, in Fortney & Weygandt, the Sixth Circuit concluded that\n\nexclusion j(6) did not bar coverage for a restaurant that had to be completely rebuilt\n\ndue to faulty foundation work by the insured. 595 F.3d at 309-11. In ACUITY, the\n\nNorth Dakota Supreme Court held that a contractor hired to do work on a roof could\n\nrecover for damage to the interior of an apartment building caused by defective work\n\non the roof. 721 N.W.2d at 42. And in Shauf, the Missouri Supreme Court\n\nconcluded that only kitchen cabinets were excluded when a machine being used on\n\n 7\n\fthose cabinets caused a fire that resulted in damage throughout a home. 967 S.W.2d\n\nat 76, 81.\n\n Other courts have adopted a broader reading. For example, in William\n\nCrawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157 (S.D.N.Y. 1993), the court\n\nrejected the argument that “(j)(5) only excludes coverage for the damage to that\n\nspecific part of the apartment on which [the insured] was actually doing work when\n\nthe accident occurred,” instead holding that damage to the entire apartment was\n\nexcluded. Id. at 158. Similarly, in Jet Line Services, Inc. v. American Employers\n\nIns. Co., 537 N.E.2d 107 (Mass. 1989), the court remarked that “whether at the time\n\nof the property damage an employee of the insured is or is not in one area or another\n\nof the property on which the insured has agreed to perform operations is not\n\nsignificant to the coverage question.” Id. at 111.\n\n Under Oklahoma law, it is the responsibility of the insurer desiring to limit\n\nliability to employ clear language in the contract. Haworth v. Jantzen, 172 P.3d 193,\n\n197 (Okla. 2006). Wausau has failed to do so in this case. The phrase “that\n\nparticular part” could be read to refer solely to the direct object on which the insured\n\nwas operating. Alternatively, it could apply to those parts of the project directly\n\nimpacted by the insured party’s work. We agree with those courts that have held the\n\nformer interpretation is a reasonable one, although we acknowledge that the latter is\n\nalso reasonable. Because both readings are permissible, the exclusions are facially\n\nambiguous. Cranfill, 49 P.3d at 706.\n\n\n\n 8\n\f B\n\n “If the language is ambiguous, we apply well-settled rules of construction to\n\ndetermine the meaning of the ambiguous language.” Id. Specifically, it is our\n\nmandate to “construe the policy to give a reasonable effect to all of its provisions,\n\nand we liberally construe words of inclusion in favor of the insured and strictly\n\nconstrue words of exclusion against the insurer.” Id. (citation omitted); see also\n\nDodson v. St. Paul Ins. Co., 812 P.2d 372, 377 (Okla. 1991) (“In case of doubt,\n\nexclusions exempting certain specified risks are construed strictly against the\n\ninsurer.”).\n\n Because the exclusions are ambiguous, they must be strictly and narrowly\n\nconstrued in a manner favorable to the insured party. Haworth, 172 P.3d at 197. “In\n\nconstruing an ambiguity or uncertainty against the insurer and in favor of the insured,\n\nOklahoma looks to the objectively reasonable expectations of the insured to fashion a\n\nremedy.” Id. Further, “an interpretation which makes a contract fair and reasonable\n\nis selected over that which yields a harsh or unreasonable result.” Max True\n\nPlastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 865 (Okla. 1996). In this\n\ncase, interpreting “that particular part” to refer to the distinct components upon which\n\nwork is performed best comports with these rules of interpretation.\n\n Even under this definition, determining the “particular part” on which an\n\ninsured works “will vary with the facts and circumstances of each particular case.”\n\nVinsant Elec. Contractors v. Aetna Cas. & Sur. Co., 530 S.W.2d 76, 77 (Tenn. 1975).\n\nIn some instances, a larger unit will properly be considered the particular part. See,\n\n 9\n\fe.g., Jet Line Servs., 537 N.E.2d at 111 (concluding exclusion j(5) barred coverage\n\nfor entire fuel tank rather than only the bottom portion of the tank because insured\n\n“was retained to clean the entire tank, and it was the entire tank on which operations\n\nwere being performed within the meaning of the policy language”). In some cases,\n\nan entire structure may qualify. For example, several cases have held that the\n\nexclusions so apply when an insured was hired to raise the entire structure. See, e.g.,\n\nLafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 834 (S.D. Miss. 2011); Grinnell\n\nMut. Reinsurance Co. v. Lynne, 686 N.W.2d 118, 125 (N.D. 2004).\n\n As applied to the facts of this case, we conclude the “particular part” on which\n\nMTI was “performing operations” and upon which work “was incorrectly performed”\n\nshould reasonably be understood as the anchor bolts. Those bolts constitute “distinct\n\ncomponent parts” of the tower, analogous to items like “interior drywall, stud\n\nframing, electrical wiring, and wood flooring.” Mid-Continent, 557 F.3d at 217.\n\nMTI performed work incorrectly by removing them without promptly replacing them\n\nor bracing the structure. We further conclude it is objectively reasonable that MTI\n\nwould expect coverage for the cost of replacing the entire tower, including all of its\n\noperational elements, given the ambiguous language of exclusions j(5) and j(6).\n\n C\n\n Contrary to Wausau’s assertion, interpreting the Policy in this manner does not\n\nconvert it into a performance bond. See generally Black & Veatch Corp. v. Aspen\n\nIns. (Uk) Ltd, 882 F.3d 952, 969 (10th Cir. 2018) (“Both insurance policies and\n\nperformance bonds are used to spread risk, but they differ in fundamental ways. An\n\n 10\n\finsurance policy spreads the contractor’s risk. A performance bond guarantees\n\ncompletion of the contract upon the contractor’s default.”). In Dodson, the\n\nOklahoma Supreme Court, interpreting a different policy provision, noted that it\n\nwould be inappropriate to “effectively convert [a] policy into a performance bond or\n\nguarantee of contractual performance” by reading a policy to cover “the repair and\n\nreplacement of the insured’s own faulty workmanship.” 812 P.2d at 378 (quotation\n\nomitted). But that concern is not at issue here. MTI is not requesting that Wausau\n\ncover the cost of replacing the anchor bolts, which would be the heart of any faulty\n\nworkmanship claim. The Dodson decision recognized this distinction, stating that a\n\npolicy would provide coverage if the insured’s faulty workmanship “results in\n\ndamage to property other than the insured’s work or product.” Id. (quotation\n\nomitted). The monetary values at issue underline this point. MTI agreed to complete\n\ncertain work for $46,273. A performance bond for such a project would not likely\n\nresult in liability of over $1.4 million.\n\n Similarly, we are not persuaded by Wausau’s argument that the Policy\n\ncontains an implied “business risk exclusion” that would otherwise override the\n\nexpress language. Absent a violation of public policy, businesses are free to contract\n\nto their preferred degree of risk embodied by the precise terms by which they choose\n\nto articulate the insurance relationship. See generally Siloam Springs Hotel, LLC v.\n\nCentury Sur. Co., 392 P.3d 262, 268 (Okla. 2017). Oklahoma courts do not, as a\n\nmatter of course, read broad business risk exclusions into contracts, and this court\n\nwill not do so when it would override the express language of the contract. See Mid-\n\n 11\n\fContinent, 557 F.3d at 216 (dismissing similar argument because “whether there is\n\ncoverage in a particular case depends on the language contained in the policy at\n\nissue”).\n\n Finally, we reject Wausau’s contention that this court has previously decided\n\nthe issue presented. Our court has considered these exclusions, albeit under Kansas\n\nlaw. See Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003 (10th\n\nCir. 2006). In that case, we held that exclusions j(5) and j(6) apply when property\n\ndamage occurs while the insured’s work is ongoing regardless of when the damage is\n\ndiscovered. Id. at 1010-12. Wausau focuses on two sentences of that opinion. We\n\nstated that exclusion j(5) applies “whenever property damage arises out of the work\n\nof the insured, its contractors, or its subcontractors while performing operations.” Id.\n\nat 1011 (quotation and italics omitted). We also stated that exclusion j(6) “was\n\nintended to exclude ‘property damage’ that directly or consequentially occurs from\n\nthe faulty workmanship of the insured.” Id. at 1012.\n\n But Advantage did not address the meaning of the phrase “that particular part.”\n\nIt had no occasion to do so because the insured there contracted to build entire\n\nhomes. Id. at 1009. Accordingly, any statement made in Advantage as to that\n\nquestion would constitute dicta. And as we have previously noted, dicta, “being\n\nperipheral, may not have received the full and careful consideration of the court that\n\nuttered it.” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000)\n\n(quotation omitted). Further, Wausau’s argument based on Advantage plainly goes\n\ntoo far. If, for example, portions of Tower 1 broke free during the windstorm and\n\n 12\n\fdestroyed nearby homes, that damage would fit within the description offered in\n\nAdvantage. 470 F.3d at 1011, 1012. But there is no argument to be made that nearby\n\nhomes would qualify as “that particular part” of the property on which MTI was\n\nworking.\n\n III\n\n For the forgoing reasons, we REVERSE the district court’s grant of summary\n\njudgment in favor of Wausau and remand for further proceedings construing the\n\nambiguous exclusions in favor of MTI.\n\n\n\n\n 13\n[END_CASE]", "role": "user" } ]
4,585,307	UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant.	United States v. Bong	2019-01-28	16-3323	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Kelly, Bacharach", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 28, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 16-3323\n\n TROY A. BONG,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)\n _________________________________\n\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender for the District\nof Colorado, Denver, Colorado, appearing for Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States\nAttorney, with him on the briefs), Office of the United States Attorney for the District of\nKansas, Topeka, Kansas, appearing for Appellee.\n _________________________________\n\nBefore BRISCOE, KELLY, and BACHARACH, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Defendant Troy Bong, convicted in 2013 of being a felon in possession of a\n\nfirearm and sentenced to a term of imprisonment of 293 months, appeals from the\n\ndistrict court’s denial of his motion to vacate, set aside, or correct sentence pursuant\n\fto 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability\n\n(COA) on Bong’s claims that he was improperly sentenced under the Armed Career\n\nCriminal Act (ACCA) and that his trial and appellate counsel were ineffective for\n\nfailing to challenge the ACCA sentencing. We subsequently granted Bong a COA as\n\nto two additional issues: (1) whether his trial counsel was ineffective for failing to\n\ninvestigate the facts of the underlying traffic stop, Bong’s resulting arrest, and\n\nBong’s alleged possession of a firearm; and (2) whether the prosecution suppressed\n\nany available video recordings of his stop and arrest.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that\n\nthe district court erred in treating his prior Kansas state convictions for robbery and\n\naggravated robbery as “violent felonies” under the ACCA. Consequently, we remand\n\nto the district court for consideration of whether Bong’s remaining prior convictions\n\nare sufficient to support his sentence under the ACCA. As for Bong’s ineffective\n\nassistance of trial counsel claims, we affirm in part, reverse in part, and remand for\n\nfurther proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse\n\nand remand for further proceedings.\n\n I\n\n a) The underlying facts of Bong’s case\n\n In an unpublished order and judgment issued in 2014, we addressed Bong’s\n\ndirect appeal and summarized the underlying facts of his case:\n\n On December 22, 2012, Officers [Robert] Thatcher and [Joseph]\n Springob of the Wichita Police Department were parked outside a house\n that was the subject of a drug investigation. The officers observed a car\n\n 2\n\fleave the target house and followed the vehicle. The driver of the\nvehicle failed to activate the car’s turn signal 100 feet before an\nintersection. Based on this traffic violation, the officers initiated a\ntraffic stop. Officer Springob approached the driver’s side of the car,\nwhile Officer Thatcher approached the passenger side. A woman, later\nidentified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the\nfront passenger seat.\n Officer Thatcher used his flashlight to look into the passenger\nside of the vehicle as he approached. Officer Thatcher testified Mr.\nBong refused to make eye contact, instead staring straight ahead.\nOfficer Thatcher thought Mr. Bong looked familiar, prompting him to\nask for Mr. Bong’s identification. Mr. Bong opened the passenger door\nto hand Officer Thatcher his identification. As Mr. Bong opened the\ndoor, Officer Thatcher noticed a cigarette pack between the passenger\nseat and the door. Officer Thatcher found this suspicious because in his\nexperience people attempting to hide illegal substances often drop them\nbetween the seat and door.\n After examining Mr. Bong’s identification, Officer Thatcher\nrecalled he had previously arrested Mr. Bong on drug, firearms, and\nparole violation charges. Officer Thatcher asked Mr. Bong if he was\nstill on parole, but Mr. Bong refused to respond. According to Officer\nThatcher, Mr. Bong began to exhibit signs of nervousness—heavy\nbreathing, sweating, and refusal to acknowledge the officer. Because\nOfficer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the\nofficer became concerned for his and Officer Springob’s safety. Officer\nThatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially\nrefused to respond, but he eventually exited the vehicle after Officer\nThatcher repeated his order several times.\n When Mr. Bong stepped out of the vehicle, Officer Thatcher\nnoticed he was standing so that the right side of his body was turned\naway. Officer Thatcher also observed a knife clipped into one of the\nfront pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife\nfrom Mr. Bong’s pocket and told him to put his hands on top of the car.\nHe then informed Mr. Bong that he was going to perform a patdown for\nweapons. According to Officer Thatcher, Mr. Bong hesitated, but\neventually put his hands on the top of the car.\n Officer Thatcher reached up to place his hands on top of Mr.\nBong’s hands on the car roof. As he did so, Mr. Bong attempted to back\naway from the car and evade Officer Thatcher. Because he feared Mr.\nBong might have a weapon, Officer Thatcher attempted to maintain\ncontrol of Mr. Bong’s hands. The two struggled briefly, at which point\nOfficer Thatcher tried to throw Mr. Bong to the ground while keeping\ncontrol of his hands. Both men fell to the ground, still struggling. As\n\n 3\n\f Mr. Bong attempted to rise, Officer Thatcher kicked him approximately\n three times in the abdomen in an attempt to knock him back down. At\n that point, Officer Thatcher observed a black object resembling a\n firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.\n Appx. at 93.\n In response to Officer Thatcher’s shout, Officer Springob entered\n the fray and knocked Mr. Bong to the ground. The officers were able to\n subdue Mr. Bong and place him in handcuffs. After the officers\n restrained Mr. Bong, they found a firearm on the ground beneath him.\n\nUnited States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).\n\n b) Bong’s trial proceedings and sentencing\n\n On January 8, 2013, a federal grand jury indicted Bong on one count of being\n\na felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved\n\nto suppress the evidence obtained during the traffic stop and his arrest, arguing it was\n\nobtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong\n\n“acknowledged the officers had reasonable suspicion to initiate an investigative\n\ntraffic stop on the basis of the observed traffic violation,” but nevertheless “argued\n\nthe scope of the detention following the traffic stop and the force used by the officers\n\nwas unreasonable.” Id. “The district court expressed concern about the level of force\n\nused by the officers, but it ultimately concluded Officer Thatcher’s actions were\n\njustified under the circumstances” and thus “denied [the] motion to suppress.” Id.\n\n “The case proceeded to trial,” where the “Government advanced the theory\n\nthat . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s\n\ndefense was that another man, Jeremy Fisher, had dropped the gun where it was\n\nfound and the traffic stop and subsequent scuffle only coincidentally occurred at the\n\n\n\n 4\n\fsame location . . . Fisher had dropped the gun.” Id. At the conclusion of the\n\nevidence, the jury convicted Bong of the felon-in-possession charge.\n\n The presentence investigation report (PSR) applied a base offense level of 24.\n\nBut the PSR concluded that Bong “ha[d] at least three prior convictions for a violent\n\nfelony or serious drug offense, or both, which were committed on different\n\noccasions” and was therefore “an armed career criminal and subject to an enhanced\n\nsentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.\n\nConsequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.\n\nThe PSR in turn concluded that Bong’s total criminal history score was 31, which\n\nresulted in a criminal history category of VI. Together, the total offense level of 33\n\nand the criminal history category of VI resulted in an advisory sentencing guidelines\n\nrange of 235 to 293 months.\n\n Bong did not file objections to the PSR, but did file a sentencing memorandum\n\nasking the district court to vary downward and impose a sentence of 187 months.\n\nThe district court denied that request and sentenced Bong to a term of imprisonment\n\nof 293 months.\n\n c) Bong’s direct appeal\n\n Bong filed a direct appeal challenging the district court’s denial of his motion\n\nto suppress. Bong also challenged the trial court’s admission at trial of two sets of\n\nstatements. On December 18, 2014, we issued an unpublished order and judgment\n\nrejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x\n\nat 614.\n\n 5\n\f Bong filed a petition for writ of certiorari with the Supreme Court. His\n\npetition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873\n\n(2015).\n\n d) Bong’s § 2255 proceedings\n\n On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct\n\nsentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for\n\nrelief. Of relevance here, Ground One of the motion argued that in light of the\n\nSupreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)\n\n(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes\n\nof violence” for enhanced sentencing purposes because they did not require the use,\n\nattempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two\n\nalleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to\n\n“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed\n\nCareer Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of\n\nBong’s motion alleged that his trial counsel was ineffective for failing to challenge\n\nthe PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.\n\nat 655.\n\n Bong subsequently moved for appointment of counsel. The district court\n\ngranted the motion, but solely for purposes of counsel assisting Bong “in obtaining\n\nrelief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel\n\nmoved to amend the § 2255 motion. In support, Bong’s counsel argued that, based\n\non the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),\n\n 6\n\fit was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot\n\nbe used as a predicate ‘violent felony’ for an Armed Career Criminal Act\n\nenhancement and it was error to be included as such by the [trial] Court,” and in turn\n\n“it was ineffective for his trial and appellate counsel to fail to raise this issue at the\n\ntime of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government\n\nfiled a response arguing that Mathis did not apply retroactively to cases on collateral\n\nreview. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging\n\nall of Bong’s prior convictions used to establish his ACCA status.\n\n On September 22, 2016, Bong filed a pro se pleading entitled “TROY\n\nBONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET\n\nASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.\n\nIn that pro se pleading, Bong alleged, in pertinent part, that he submitted a request\n\nunder the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,\n\nand that the City of Wichita, in response to his request, stated that “2 AXON videos\n\n(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes\n\nand 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]\n\nincarceration he [wa]s unable to purchase or receive copies of these videos,” but that\n\nthe videos “w[ould] show that [he] never resisted or attempted to escape before\n\nThatcher threw him to the ground and began using force on him.” Id. Thus, Bong\n\nargued, “these videos constitute impeaching evidence which also show that the\n\nofficers gave perjured testimony at trial upon which the jury relied to convict [him].”\n\nId.\n\n 7\n\f On October 28, 2016, the district court issued a memorandum and order\n\ndenying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based\n\narguments, noting that he “has at least three convictions under Kansas law for\n\nrobbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”\n\nId. at 1051. More specifically, the district court noted that Bong “was convicted in a\n\nKansas district court on May 29, 1990, of three counts of robbery, three counts of\n\naggravated robbery, and one count of attempted robbery.” Id. at 1052. These\n\noffenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;\n\nMarch 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”\n\nId. The district court in turn noted that “[a]t the time of the offenses, Kansas law\n\ndefined robbery as ‘the taking of property from the person or presence of another by\n\nthreat of bodily harm to his person or the person of another or by force,’” id. (quoting\n\nKan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery\n\ncommitted by a person who is armed with a dangerous weapon or who inflicts bodily\n\nharm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.\n\n§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery\n\nunder Kansas law incorporate the ‘physical force’ necessary to constitute a violent\n\noffense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he\n\nelement of force or threat of bodily harm in Kansas robbery materially distinguishes\n\nthis offense from Johnson [II]” because “[t]he Kansas element of the intentional use\n\nof force or threat of bodily harm necessarily contemplates force capable of causing\n\npain or injury, placing this offense squarely within the violent felonies Congress had\n\n 8\n\fin mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that\n\nBong cited “no Kansas Supreme Court case finding the force element of robbery to\n\nbe satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the\n\ncontrary, Kansas cases characterize robbery as a taking accomplished by violence or\n\nintimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or\n\nso robbery offenses (including aggravated robbery) were largely consolidated for\n\ncharging and sentencing,” but “occurred (with one exception) on different dates, and\n\nwere thus ‘committed on occasions different from one another.’” Id. at 1054\n\n(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).\n\n The district court rejected all of the other claims that Bong asserted, including\n\nthe various ineffective assistance of counsel and appellate counsel claims. In\n\naddition, the district court addressed Bong’s pro se reply brief in the following\n\nmanner:\n\n Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that\n attempts to raise a multitude of claims in addition to those set forth in\n the original or amended § 2255 motions. To the extent the Reply\n attempts to raise new claims, those claims are barred because they have\n been raised outside the applicable one-year statute of limitations. See\n United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)\n (“When a § 2255 movant seeks to amend his pleading to include a new\n claim, we will only entertain this claim if the amendment is made within\n the one-year limit set by AEDPA.”). To the extent the Reply raises new\n arguments (but not new claims) that were not set forth in his initial or\n amended § 2255 motions, those arguments are considered waived. See\n United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).\n Nevertheless, the court has addressed the merits of the arguments\n contained in the Reply Brief to the extent feasible.\n\nId. at 1047 n.1.\n\n\n 9\n\f Lastly, the district court granted Bong a COA with respect to the issues raised\n\nin his § 2255 motion concerning his “classification as an armed career criminal and\n\nthe effectiveness of counsel with respect to that classification.” Id. at 1072. The\n\ndistrict court denied Bong a COA on the remaining issues asserted in his § 2255\n\nmotion. Id. at 1073.\n\n Bong filed a timely notice of appeal. He has since filed a motion to expand the\n\nCOA to include additional issues.\n\n II\n\n We begin by focusing on the ACCA-related issues on which the district court\n\ngranted Bong a COA. As outlined below, we conclude that Bong’s Kansas\n\nconvictions for robbery and aggravated robbery do not constitute “violent felonies”\n\nfor purposes of the ACCA.\n\n Standards of review\n\n “A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the\n\nexclusive remedy for a federal prisoner seeking to attack the legality of detention.”\n\nUnited States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and\n\nbrackets omitted). We review de novo the district court’s rulings on a § 2255 motion\n\nand its findings of fact for clear error. Id.\n\n “Whether a prior conviction satisfies the ACCA’s violent felony definition is a\n\nlegal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263\n\n(10th Cir. 2017).\n\n\n\n 10\n\f Was Bong properly sentenced under the ACCA?\n\n “[T]he ACCA mandates an enhanced sentence of imprisonment of not less\n\nthan 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a\n\nviolent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)\n\n(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime\n\npunishable by imprisonment for a term exceeding one year” that falls within the\n\nscope of one of three enumerated clauses: (1) the elements clause, which states: “has\n\nas an element the use, attempted use, or threatened use of physical force against the\n\nperson of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which\n\nincludes any crime that “is a categorical match to the generic offenses of ‘burglary,\n\narson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the\n\nresidual clause, which includes any crime that “otherwise involves conduct that\n\npresents a serious potential risk of physical injury to another.” 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).\n\n In Johnson II, the Supreme Court held that the ACCA’s residual clause was\n\nunconstitutionally vague and “that imposing an increased sentence under the residual\n\nclause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.\n\nThe result is that, for a prior conviction to constitute a “violent felony” under the\n\nACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it\n\nmust fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d\n\nat 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery do not fall within the enumerated-offenses clause\n\n 11\n\fand, thus, must fall within the elements clause in order to constitute “violent\n\nfelonies” for purposes of the ACCA.\n\n “To determine if a prior conviction qualifies as a violent felony” under the\n\nACCA’s elements clause, “we apply the categorical approach, focusing on the\n\nelements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d\n\nat 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More\n\nspecifically, we must determine whether the Kansas statutes of conviction “ha[ve] as\n\nan element the use, attempted use, or threatened use of physical force against the\n\nperson of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both\n\nfederal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines\n\nthe meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in\n\n§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime\n\nof conviction.” Id.\n\n The terms employed in the ACCA’s elements clause have, for the most part,\n\nbeen clearly defined by the Supreme Court. The term “use,” as employed in the\n\nACCA’s elements clause, “requires active employment” rather “than negligent or\n\nmerely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the\n\nterm “physical,” as employed in the ACCA’s elements clause, means “force exerted\n\nby and through concrete bodies—distinguishing physical force from, for example,\n\nintellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138\n\n(2010) (Johnson I). As for the term “force,” the Court rejected the traditional\n\ndefinition (i.e., that force can be satisfied by even the slightest offensive touching)\n\n 12\n\fand instead held that in the context of the ACCA, the phrase “physical force” means\n\n“violent force”—“force capable of causing physical pain or injury to another person.”\n\nId. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or\n\nthreatened employment of violent force—force capable of causing physical pain or\n\ninjury—against the person of another.\n\n Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),\n\nthe Supreme Court revisited the ACCA’s elements clause to determine whether a\n\nFlorida robbery conviction constituted a predicate offense under the ACCA. In doing\n\nso, the Court held “that the elements clause encompasses robbery offenses that\n\nrequire the criminal to overcome the victim’s resistance.” 2019 WL 189343 at 3.\n\nThe Court explained that “the force necessary to overcome a victim’s physical\n\nresistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and\n\n‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”\n\nId. at 7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,\n\n“because robbery that must overpower a victim’s will—even a feeble or weak-willed\n\nvictim—necessarily involves a physical confrontation and struggle.” Id. The Court\n\nstated that a physical confrontation or “altercation need not cause pain or injury or\n\neven be prolonged” because “it is the physical contest between the criminal and the\n\nvictim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting\n\nJohnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the\n\nCourt made it a point to emphasize that the “[m]ere ‘snatching of property from\n\nanother’ will not suffice” to constitute robbery under Florida law. Id. at *9.\n\n 13\n\f Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply\n\nthese principles to [the Kansas] robbery statute to determine whether it ‘has as an\n\nelement the use, attempted use, or threatened use of physical force against the person\n\nof another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step\n\ninquiry” for resolving whether a state’s “robbery statute requires physical force as\n\nthat term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the\n\nminimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.\n\nSecond, we must “then determine if that force categorically fits the [ACCA’s]\n\ndefinition of physical force.” Id. (italics in original). The Supreme Court has\n\nemphasized “that in construing the minimum culpable conduct, such conduct only\n\nincludes that in which there is a ‘realistic probability, not a theoretical possibility’ the\n\nstate statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685\n\n(2013)). “Decisions from the state supreme court best indicate a ‘realistic\n\nprobability,’ supplemented by decisions from the intermediate-appellate courts.” Id.\n\n(quoting Moncrieffe, 133 S. Ct. at 1685).\n\n Bong’s ACCA sentence was based, in pertinent part, on three Kansas state\n\nrobbery convictions and three Kansas state aggravated robbery convictions, all of\n\nwhich occurred in April of 1990 (but were based on separate incidents). At the time\n\nof those convictions, the Kansas robbery statute provided as follows: “Robbery is the\n\ntaking of property from the person or presence of another by threat of bodily harm to\n\nhis person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).\n\nAnd the Kansas aggravated robbery statute provided: “Aggravated robbery is a\n\n 14\n\frobbery committed by a person who is armed with a dangerous weapon or who\n\ninflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.\n\n§ 21-3427 (1988).\n\n In the unpublished decision in United States v. Nicholas, 686 F. App’x 570\n\n(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas\n\nrobbery statute required “physical force” as defined in the ACCA. In doing so, the\n\npanel in Nicholas “look[ed] . . . to Kansas state law to define the substantive\n\nelements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat\n\nof bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,\n\n961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the\n\ndefendant’s robbery conviction for purse-snatching. The robbery victim in the case\n\ntestified that she had cashed some checks at a bank and walked outside with a “thing\n\nthat [she] had the money in” when, as she was opening the door to her car, McKinney\n\nappeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the\n\nmoney] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had\n\nsnatched [the victim’s] purse from her arm, but he denied pushing her,” and he\n\nconsequently “argue[d] that the jury should have been instructed on theft as a lesser\n\nincluded offense of robbery.” Id. at 8. The Kansas Supreme Court rejected\n\nMcKinney’s argument, concluding that even if he snatched the victim’s purse without\n\npushing her, simply “snatching the purse away from [the victim] constituted the\n\nthreat of bodily harm, which is an element of robbery.” Id. Although the panel in\n\nNicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will\n\n 15\n\flikely involve a greater degree of force than mere purse-snatching,” it nevertheless\n\nconcluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]\n\nlowest level of culpable conduct.”1 686 F. App’x at 575.\n\n The panel in Nicholas in turn “conclude[d] that Kansas robbery does not\n\nnecessarily require the use, attempted use, or threatened use of violent force against\n\nthe person of another.” Id. at 576. In doing so, the panel in Nicholas noted that\n\n“[s]everal circuit courts have concluded that, because a state’s robbery statute may be\n\nviolated with minimal actual force, it does not qualify as a violent felony under the\n\nACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits\n\nconstruing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).\n\nIn particular, the Nicholas panel noted that the Ninth Circuit in United States v.\n\nParnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a\n\nMassachusetts armed robbery statute, that “the snatching of a purse from a victim’s\n\nhand . . . does not constitute force ‘capable of causing physical pain or injury to\n\nanother person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).\n\n Ultimately, the panel in Nicholas concluded that “the minimum force\n\nnecessary under Kansas law to support a robbery conviction” does not “categorically\n\nfit[] the definition of physical force under the ACCA.” Id. at 575. In other words,\n\n\n 1\n In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not\nidentified a general statement from Kansas courts as to the degree of force required to\nsupport a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel\nnoted that most of the Kansas cases “addressing the force element of Kansas robbery\nhave done so in the context of determining the statute’s temporal requirements, not\nits degree-of-force requirements.” Id.\n 16\n\fthe panel held that “[b]ecause Kansas robbery does not require the use, attempted\n\nuse, or threatened use of violent force as defined in Johnson, it cannot serve as a\n\npredicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.\n\nat 576.\n\n Not surprisingly, the parties in the case before us have divergent views\n\nregarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas\n\nbecause, although “not precedential, it is persuasive and applies here.” Aplt. Br.\n\nat 48. The government, in response, argues that Nicholas “was wrongly decided.”\n\nAplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s\n\nnote in Nicholas that it could not identify a general statement from Kansas courts as\n\nto the degree of force necessary to constitute robbery,” there is in fact “sufficient\n\nguidance” in Kansas case law “establishing the force necessary to support a robbery\n\nconviction.” Aplee. Br. at 30. In particular, the government points to the following\n\nstatement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371\n\n(Kan. 1976):\n\n [T]o constitute the crime of robbery by forcibly taking money\n from the person of its owner, it is necessary that the violence to the\n owner must either precede or be contemporaneous with the taking of the\n property and robbery is not committed where the thief has gained\n peaceable possession of the property and uses no violence except to\n resist arrest or to effect his escape.\n\nId. at 375. The government also cites various dictionaries for the proposition that\n\n“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.\n\n\n\n\n 17\n\fThus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’\n\npossession of property is not robbery; rather, it is theft.” Id. at 31.\n\n Notably, the very same argument was made by the government in Nicholas and\n\nthe panel in that case rejected it, stating as follows:\n\n The primary case relied upon by the government, State v.\n Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to\n robbery while answering the question of when force must occur, not\n what degree of force is required. Id. at 373-75. Moreover, insofar as\n Aldershof appears to conflate “violence” with the force necessary to\n support a robbery conviction, those concepts are later divorced in State\n v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there\n was no violence used in the commission of the robbery . . . . Since there\n was no direct evidence as to violence occurring with that taking, the\n jury acquitted Peck on the charge of aggravated robbery, and instead\n found him guilty of simple robbery.”).\n\n More importantly, the McKinney court explicitly relied on\n Aldershof in concluding that mere purse-snatching can support a\n conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must\n therefore reject any interpretation of Aldershof that would be\n inconsistent with the holding in McKinney. See Jackson v. Harris, 43\n F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in\n conflict, the national courts will follow the latest settled adjudications of\n the highest court of the state rather than the earlier ones . . . .”). In\n doing so, we acknowledge that many, if not most, Kansas robbery\n convictions will likely involve a greater degree of force than mere\n purse-snatching; however, our analysis must focus on the lowest level of\n conduct that can support a conviction under the statute. See Moncrieffe\n v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what\n the state conviction necessarily involved, not the facts underlying the\n case, we must presume that the conviction ‘rested upon nothing more\n than the least of the acts’ criminalized, and then determine whether even\n those acts [would constitute violent felonies].” (quoting Johnson [II],\n 559 U.S. at 137) (alterations omitted)). In the context of Kansas\n robbery, McKinney establishes that lowest level of culpable conduct.\n\n686 F. App’x at 575 (parallel citations omitted).\n\n\n\n 18\n\f The government also argues that the panel in Nicholas “simply established a\n\nquantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.\n\nMore specifically, the government argues that “the panel in Nicholas arguably gave\n\nlittle credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse\n\nsnatching is simply ‘incapable’ of causing physical injury or pain to another person.”\n\nId. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”\n\nId. According to the government, “when considering that grabbing is sufficient to\n\ncause physical injury, it is reasonable to conclude that purse snatching—which\n\nnecessarily involves grabbing—is similarly sufficient force to cause physical injury.”\n\nId.\n\n The problem with the government’s argument is that it treats “purse snatching”\n\nas a singular type of action when, as case law clearly demonstrates, it can be\n\naccomplished in a variety of ways and with varying degrees of physical force. Of\n\ncourse, it is easy to conceive of a particular act of purse-snatching that involves force\n\ncapable of causing physical harm to the victim—or, indeed, that actually causes\n\nphysical harm to the victim. But that was not the task faced by the panel in Nicholas\n\nor by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]\n\nlaw for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas\n\nconcluded, correctly in our view, that this minimum level of force was defined by the\n\nspecific act of purse-snatching that occurred in McKinney—an act that, at least\n\naccording to the defendant, involved the mere snatching of the purse (or whatever the\n\nobject was that actually contained the money) without any application of force\n\n 19\n\fdirectly to the victim, and also, importantly, without any resistance by or injury to the\n\nvictim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that\n\n“neither robbery nor aggravated robbery require bodily contact or the actual\n\napplication of force to the person of another as a necessary element for the\n\ncommission of those crimes”), abrogated on other grounds by State v. Adams, 744\n\nP.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in\n\nKansas can be accomplished with minimal force that falls short of the “violent force”\n\nrequired under the ACCA’s elements clause.\n\n The government also suggests that Nicholas is inconsistent with our published\n\nopinion in Harris. The government notes that in Harris, the “panel rejected the Ninth\n\nCircuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on\n\nParnell to support its conclusion that Kansas’ robbery statute runs afoul of\n\nJohnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,\n\nNicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and\n\nHarris recognized that Parnell dealt with a robbery conviction under Massachusetts\n\nlaw and both noted that under Massachusetts law, a defendant may be convicted of\n\nrobbery without using violence or intimidation of any sort. Nicholas and Harris came\n\nto different outcomes because each case addressed a different state statute. In\n\nNicholas, the panel concluded that robbery under Kansas law was similar to robbery\n\n\n\n\n 20\n\funder Massachusetts law, whereas the panel in Harris concluded that robbery under\n\nColorado law differed from robbery under Massachusetts law. 2\n\n In sum, we conclude that the government has failed to establish that the panel\n\nin Nicholas erred in concluding that “the minimum force necessary under Kansas law\n\nto support a robbery conviction” does not “categorically fit[] the definition of\n\nphysical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the\n\nreasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery\n\ncannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement\n\nprovisions.\n\n The question then becomes whether we should proceed to address the other\n\nconvictions that were cited in the PSR as predicate offenses, or whether we should\n\ninstead remand the case to the district court to determine in the first instance whether\n\nthose convictions are countable predicate offenses. Because the parties have briefed\n\nthe question of whether Bong’s Kansas state aggravated robbery convictions can\n\nserve as predicate offenses under the ACCA, we will proceed to address that\n\nquestion.\n\n\n\n 2\n As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded\nthat a New York conviction for attempted robbery in the second degree was not a\n“crime of violence” for purposes of the career offender guidelines because “there is a\nrealistic probability that [the defendant’s] conviction was for attempting to commit\nan offense for which the least of the acts that may have constituted that offense\nincluded ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st\nCir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.\n1978)).\n\n 21\n\f As noted, Bong has three prior convictions for violating the Kansas aggravated\n\nrobbery statute. At the time of his convictions, that statute provided: “Aggravated\n\nrobbery is a robbery committed by a person who is armed with a dangerous weapon\n\nor who inflicts bodily harm upon any person in the course of such robbery.” Kan.\n\nStat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated\n\nrobbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a\n\nperson who (b) is armed with a dangerous weapon or who inflicts bodily harm upon\n\nany person in the course of such robbery.3 Having concluded that robbery under\n\nKansas law is not a “violent crime” for purposes of the ACCA, the question remains\n\nwhether the second element described above is sufficient to render an aggravated\n\nrobbery a “violent crime.”\n\n In answering this question, we begin and ultimately end by focusing on\n\nwhether being armed with a dangerous weapon during the course of a robbery is\n\nsufficient to render the crime a “violent crime” for purposes of the ACCA. The\n\nKansas aggravated robbery statute does not define “armed,” and we have not found\n\nany Kansas cases expressly defining the term.4 Turning to dictionary definitions,\n\n\n 3\n It appears clear that these two alternative methods of rendering a robbery an\n“aggravated robbery” are not elements of different offenses, but rather only different\nmeans by which a person commits a single armed robbery offense. See Mathis 136\nS. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery\ncan be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts\nbodily harm on any person in the course of such robbery’”).\n 4\n The Kansas pattern jury instructions stated that it was not necessary for the\ndefendant to have exhibited the dangerous weapon to the victim, and that whether or\n (Continued . . .)\n 22\n\fBlack’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or\n\n“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).\n\nSimilarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or\n\ncarrying a weapon or weapons (now typically firearms); involving the use of\n\nweaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being\n\n“equipped” with a weapon is the same as “possessing” a weapon. In other words,\n\nsimple possession of a weapon, rather than actual use of a weapon, is a sufficient\n\nmeans of being “armed” for the purposes of the Kansas aggravated robbery statute.\n\nAnd that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where\n\nthe Kansas Supreme Court held that the Kansas aggravated robbery “statute requires\n\nonly that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the\n\nvictim be aware of its presence.” Id. at 725.\n\n We in turn conclude that merely being “armed” with a weapon during the\n\ncourse of a robbery is not sufficient to render the crime a “violent crime” for\n\npurposes of the ACCA. For example, take the simple robbery that was committed in\n\nMcKinney—i.e., the purse-snatching. Had the defendant in that case been armed\n\nwith a weapon, even a concealed one, at the time of the purse-snatching, that would\n\nhave been sufficient to render the crime an aggravated robbery under Kansas law.\n\nBut, as with the simple crime of purse snatching, nothing about the defendant’s mere\n\npossession of a firearm (or another deadly weapon) would have necessarily caused\n\n\nnot the defendant was armed with a dangerous weapon was determined from the\nvictim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).\n 23\n\fthe crime to involve “the use, attempted use, or threatened use of violent force\n\nagainst the person of another.” § 924(e)(2)(B)(i).\n\n Notably, the Ninth Circuit addressed a similar question in Parnell and\n\nconcluded that “[t]he mere fact that an individual is armed . . . does not mean he or\n\nshe has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like\n\nthe Kansas aggravated robbery statute at issue here, the Massachusetts aggravated\n\nrobbery statute that was before the court in Parnell did “not require a weapon to be\n\nused or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus\n\nconcluded that “[t]here is a material difference between the presence of a weapon,\n\nwhich produces a risk of violent force, and the actual or threatened use of such\n\nforce.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls\n\nwithin the ACCA’s force clause.”5 Id.\n\n To be sure, the government in this case acknowledges Parnell, but states that it\n\n“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the\n\ngovernment makes no attempt to explain why Parnell’s holding on this point was\n\nincorrect.\n\n In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of\n\nColumbia Circuit distinguished Parnell, but it did so on the basis that the statute of\n\n\n\n 5\n As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the\nsame conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th\nCir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not\ncategorically qualify as a violent felony conviction under the ACCA’s force clause).\n\n 24\n\fconviction in the case before it—i.e., Maryland armed robbery—required “that the\n\ndefendant commit the crime with the use of a dangerous or deadly weapon.” Id.\n\nat 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute\n\nrequired the use of a dangerous or deadly weapon, then Bong’s prior aggravated\n\nrobbery convictions would constitute predicate offenses under the ACCA. But, as\n\nnoted, the Kansas aggravated robbery statute does not include this requirement. We\n\ntherefore conclude that the Kansas crime of aggravated robbery is not categorically a\n\n“violent crime” for purposes of the ACCA.\n\n In light of our conclusions regarding Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery, we reverse the district court’s denial of Bong’s\n\n§ 2255 motion and remand to the district court for further proceedings. On remand,\n\nthe district court will need to determine in the first instance whether Bong’s\n\nremaining convictions are sufficient to support application of the ACCA.\n\nSpecifically, Bong has the following convictions that might constitute “crimes of\n\nviolence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a\n\nresidence; (2) a 1990 Kansas conviction for aggravated escape from custody (he\n\nescaped from the Sedgwick County Community Corrections Center); (3) a 1999\n\nKansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for\n\ntrafficking in contraband in a correctional facility. Bong briefly addresses the\n\nburglary and trafficking convictions in his opening appellate brief, but we conclude it\n\nis proper for the district court to consider these prior convictions in the first instance.\n\n Ineffective assistance of trial and appellate counsel—ACCA sentence\n\n 25\n\f The district court also granted Bong a COA on the question of whether his trial\n\nand appellate counsel were ineffective for failing to object to the district court’s\n\nimposition of the ACCA sentence. Having concluded that the district court erred in\n\nbasing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery\n\nconvictions, it is unnecessary for us to address this ineffective assistance claim.\n\n III\n\n We now turn to the two issues as to which we granted Bong a COA:\n\n(1) whether the district court erred in rejecting his claim that his trial counsel was\n\nineffective for failing to independently investigate the facts of the alleged crime; and\n\n(2) whether the district court erred in summarily dismissing his claim regarding the\n\nallegedly newly-discovered videos of his stop and arrest (which his counsel now\n\ncharacterizes as a Brady/Giglio claim).6\n\n Ineffective assistance of trial counsel – failure to investigate\n\n Bong alleged in his original pro se § 2255 motion, and in greater detail in his\n\npro se reply brief, that his trial counsel was ineffective for failing to investigate the\n\nfacts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.\n\nBong argues that had his trial counsel “conducted even a minimally adequate\n\ninvestigation, trial counsel would have discovered and presented multiple witnesses\n\n\n 6\n See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the\nsuppression by the prosecution of evidence favorable to an accused upon request\nviolates due process where the evidence is material either to guilt or to punishment”);\nGiglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,\nunder Brady, that affects the credibility of a witness whose testimony “may well be\ndeterminative of guilt or innocence”).\n 26\n\fto corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm\n\nand ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in\n\nturn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.\n\nRelatedly, Bong argues that “the district court erred in disregarding the factual\n\nallegations set forth in [his] second pro se pleading.” Id. Although Bong concedes\n\nthat he titled this second pro se pleading a “Reply,” he argues this was “immaterial”\n\nbecause “pro se pleadings must be liberally construed” and thus the district court was\n\nobligated “to construe the ‘Reply’ as an amendment.” Id.\n\n The district court considered and rejected Bong’s claim that his trial counsel\n\nfailed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,\n\nthe district court stated:\n\n Defendant’s § 2255 motion fails to identify any material matters\n that defense counsel failed to investigate. His massive Reply Brief\n identifies a multitude of issues that defendant now claims should have\n been further investigated. But defendant fails to address the significant\n evidence weighing against his claim that his statement was involuntary,\n fails to show that counsel’s performance fell below an objective\n standard of reasonableness, and fails to show that the alleged failure to\n investigate likely made a difference in the outcome.\n\nId. at 1068.\n\n [D]efendant fails to cite any material evidence that defense\n counsel failed to discover or to address in the course of the proceedings.\n Defendant now claims a number of other things could have been\n investigated, but most of these items have nothing to do with the issue\n of whether defendant possessed the firearm that was found during the\n stop. Defendant has now produced an affidavit of an individual named\n Roger Schmidt, who says that he talked to defendant and his wife on the\n night of the stop. Even if such evidence had been presented, however,\n there is no reason to believe it could have affected the outcome of the\n trial. Similarly, defendant now presents a statement from an individual\n\n 27\n\f named Richard Sipes, who claims to have seen defendant at the\n suspected drug house on the evening of the stop, and who says “there\n was not a gun around.” But in addition to obvious problems with this\n witness’s credibility, his statement shows no basis for knowing whether\n defendant had a gun in his waistband or in his car. Any failure to\n discover such testimony did not prejudice defendant. Essentially,\n defendant’s claim that additional investigation would have produced\n evidence to exonerate him is unsupported speculation.\n\nId. at 1069–70 (citations omitted). At no point did Bong expressly request an\n\nevidentiary hearing on his failure-to-investigate claim and the district court in turn\n\ndid not address the need for a hearing.\n\n We review de novo Bong’s ineffective assistance of counsel claim and, in\n\ndoing so, accept any underlying factual findings made by the district court unless\n\nthey are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.\n\n2014).\n\n We conclude, with one exception, that the district court properly rejected\n\nBong’s allegations of ineffective assistance as either meritless or time-barred. That\n\none exception concerns Bong’s allegation that his trial counsel was ineffective for\n\nfailing to request copies of any available video recordings of the traffic stop and his\n\narrest. As we have noted, Bong alleged in his pro se reply brief that at some point in\n\n2016, while he was incarcerated, he contacted the City of Wichita and requested\n\ncopies of evidence relevant to his case under KORA. In response, the City of\n\nWichita allegedly acknowledged that “2 AXON videos (patrol car recording\n\nequipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the\n\nCity of Wichita allegedly refused to provide Bong with a copy of the videos due to\n\n\n 28\n\fthe fact that he was incarcerated. Id. Bong now argues that these videos necessarily\n\nmust have been of his traffic stop and arrest and were improperly suppressed by the\n\npolice department or prosecution. Bong in turn alleges that these videos “will show\n\nthat [he] never resisted or attempted to escape before Thatcher just threw him to the\n\nground and began using force on him.” Id.\n\n The district court did not expressly address these allegations in its order\n\ndenying Bong’s § 2255 motion. Instead, the district court treated these allegations as\n\nuntimely because they were raised for the first time in Bong’s pro se reply brief and\n\nthus, in the district court’s view, fell outside of the one-year time limit set by\n\nAEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new\n\nclaims, those claims are barred because they have been raised outside the applicable\n\none-year statute of limitations.”). The district court failed to consider, however, the\n\nfact that Bong’s § 2255 motion was filed within one year after Bong allegedly\n\ndiscovered this new evidence. Based upon the materials contained in the record on\n\nappeal, we conclude that the district court should have, at a minimum, determined\n\n“the date on which the facts supporting the claim . . . could have been discovered\n\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation\n\nperiod shall run from the latest of . . . the date on which the facts supporting the\n\nclaim or claims presented could have been discovered through the exercise of due\n\n\n\n\n 29\n\fdiligence.”). Consequently, we reverse on this narrow issue of ineffective assistance\n\nof trial counsel and remand to the district court for further consideration.7\n\n Brady/Giglio claims – suppression of video evidence\n\n Bong also challenges the district court’s dismissal of his related Brady/Giglio\n\nclaim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”\n\nUnited States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady\n\nclaim requires the defendant to show by a preponderance of the evidence (1) that the\n\ngovernment suppressed evidence, (2) that the evidence was favorable to the\n\ndefendant, and (3) that the evidence was material.” Id.\n\n Bong alleged that “[t]hrough local law enforcement actions attributable to the\n\nGovernment, the Government suppressed the video recordings” of the traffic stop and\n\nhis arrest and that “Officer Thatcher presented false testimony denying that any video\n\nrecordings existed.” Aplt. Br. at 44. The district court did not expressly address this\n\nclaim in its order denying Bong’s § 2255 motion, but instead concluded that it was a\n\nnew claim raised for the first time in Bong’s pro se reply brief and was “barred\n\nbecause [it was] raised outside the applicable one-year statute of limitations.” ROA,\n\nVol. 1 at 1047 n.1.\n\n As with Bong’s related ineffective assistance claim, the district court failed to\n\nconsider the fact that Bong’s § 2255 motion was filed within one year after Bong\n\n\n\n 7\n We note that this ineffective assistance of counsel claim is intertwined with,\nand will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the\nalleged videotapes of his stop and arrest.\n 30\n\fallegedly discovered the existence of the video recordings. And, notably, the\n\ngovernment agreed at oral argument that the district court erred in summarily\n\ndismissing the claim as untimely. Consequently, we reverse the district court’s\n\ndismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for\n\nfurther consideration.8\n\n IV\n\n With respect to Bong’s claims regarding his ACCA sentence, we REVERSE\n\nthe district court’s denial of § 2255 relief and REMAND with directions to the\n\ndistrict court to determine whether Bong’s ACCA sentence can be supported by his\n\nnon-robbery-related convictions. With respect to Bong’s ineffective assistance of\n\ncounsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district\n\ncourt for further proceedings consistent with this opinion. With respect to Bong’s\n\nBrady/Giglio claim, we REVERSE and REMAND for further proceedings consistent\n\nwith this opinion. Bong’s motion for expedited relief in DENIED as moot.\n\n\n\n\n 8\n According to the government, it has evidence, in particular affidavits from\nCity employees, directly refuting Bong’s allegations regarding the purported\nvideotapes. But the government conceded that this evidence is not in the record on\nappeal and thus the proper course is for the district court to consider all of the\nevidence in the first instance.\n 31", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362560/", "author_raw": "BRISCOE, Circuit Judge."}]}	BRISCOE	KELLY	BACHARACH	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585307/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 28, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 16-3323\n\n TROY A. BONG,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)\n _________________________________\n\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender for the District\nof Colorado, Denver, Colorado, appearing for Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States\nAttorney, with him on the briefs), Office of the United States Attorney for the District of\nKansas, Topeka, Kansas, appearing for Appellee.\n _________________________________\n\nBefore BRISCOE, KELLY, and BACHARACH, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Defendant Troy Bong, convicted in 2013 of being a felon in possession of a\n\nfirearm and sentenced to a term of imprisonment of 293 months, appeals from the\n\ndistrict court’s denial of his motion to vacate, set aside, or correct sentence pursuant\n\fto 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability\n\n(COA) on Bong’s claims that he was improperly sentenced under the Armed Career\n\nCriminal Act (ACCA) and that his trial and appellate counsel were ineffective for\n\nfailing to challenge the ACCA sentencing. We subsequently granted Bong a COA as\n\nto two additional issues: (1) whether his trial counsel was ineffective for failing to\n\ninvestigate the facts of the underlying traffic stop, Bong’s resulting arrest, and\n\nBong’s alleged possession of a firearm; and (2) whether the prosecution suppressed\n\nany available video recordings of his stop and arrest.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that\n\nthe district court erred in treating his prior Kansas state convictions for robbery and\n\naggravated robbery as “violent felonies” under the ACCA. Consequently, we remand\n\nto the district court for consideration of whether Bong’s remaining prior convictions\n\nare sufficient to support his sentence under the ACCA. As for Bong’s ineffective\n\nassistance of trial counsel claims, we affirm in part, reverse in part, and remand for\n\nfurther proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse\n\nand remand for further proceedings.\n\n I\n\n a) The underlying facts of Bong’s case\n\n In an unpublished order and judgment issued in 2014, we addressed Bong’s\n\ndirect appeal and summarized the underlying facts of his case:\n\n On December 22, 2012, Officers [Robert] Thatcher and [Joseph]\n Springob of the Wichita Police Department were parked outside a house\n that was the subject of a drug investigation. The officers observed a car\n\n 2\n\fleave the target house and followed the vehicle. The driver of the\nvehicle failed to activate the car’s turn signal 100 feet before an\nintersection. Based on this traffic violation, the officers initiated a\ntraffic stop. Officer Springob approached the driver’s side of the car,\nwhile Officer Thatcher approached the passenger side. A woman, later\nidentified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the\nfront passenger seat.\n Officer Thatcher used his flashlight to look into the passenger\nside of the vehicle as he approached. Officer Thatcher testified Mr.\nBong refused to make eye contact, instead staring straight ahead.\nOfficer Thatcher thought Mr. Bong looked familiar, prompting him to\nask for Mr. Bong’s identification. Mr. Bong opened the passenger door\nto hand Officer Thatcher his identification. As Mr. Bong opened the\ndoor, Officer Thatcher noticed a cigarette pack between the passenger\nseat and the door. Officer Thatcher found this suspicious because in his\nexperience people attempting to hide illegal substances often drop them\nbetween the seat and door.\n After examining Mr. Bong’s identification, Officer Thatcher\nrecalled he had previously arrested Mr. Bong on drug, firearms, and\nparole violation charges. Officer Thatcher asked Mr. Bong if he was\nstill on parole, but Mr. Bong refused to respond. According to Officer\nThatcher, Mr. Bong began to exhibit signs of nervousness—heavy\nbreathing, sweating, and refusal to acknowledge the officer. Because\nOfficer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the\nofficer became concerned for his and Officer Springob’s safety. Officer\nThatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially\nrefused to respond, but he eventually exited the vehicle after Officer\nThatcher repeated his order several times.\n When Mr. Bong stepped out of the vehicle, Officer Thatcher\nnoticed he was standing so that the right side of his body was turned\naway. Officer Thatcher also observed a knife clipped into one of the\nfront pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife\nfrom Mr. Bong’s pocket and told him to put his hands on top of the car.\nHe then informed Mr. Bong that he was going to perform a patdown for\nweapons. According to Officer Thatcher, Mr. Bong hesitated, but\neventually put his hands on the top of the car.\n Officer Thatcher reached up to place his hands on top of Mr.\nBong’s hands on the car roof. As he did so, Mr. Bong attempted to back\naway from the car and evade Officer Thatcher. Because he feared Mr.\nBong might have a weapon, Officer Thatcher attempted to maintain\ncontrol of Mr. Bong’s hands. The two struggled briefly, at which point\nOfficer Thatcher tried to throw Mr. Bong to the ground while keeping\ncontrol of his hands. Both men fell to the ground, still struggling. As\n\n 3\n\f Mr. Bong attempted to rise, Officer Thatcher kicked him approximately\n three times in the abdomen in an attempt to knock him back down. At\n that point, Officer Thatcher observed a black object resembling a\n firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.\n Appx. at 93.\n In response to Officer Thatcher’s shout, Officer Springob entered\n the fray and knocked Mr. Bong to the ground. The officers were able to\n subdue Mr. Bong and place him in handcuffs. After the officers\n restrained Mr. Bong, they found a firearm on the ground beneath him.\n\nUnited States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).\n\n b) Bong’s trial proceedings and sentencing\n\n On January 8, 2013, a federal grand jury indicted Bong on one count of being\n\na felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved\n\nto suppress the evidence obtained during the traffic stop and his arrest, arguing it was\n\nobtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong\n\n“acknowledged the officers had reasonable suspicion to initiate an investigative\n\ntraffic stop on the basis of the observed traffic violation,” but nevertheless “argued\n\nthe scope of the detention following the traffic stop and the force used by the officers\n\nwas unreasonable.” Id. “The district court expressed concern about the level of force\n\nused by the officers, but it ultimately concluded Officer Thatcher’s actions were\n\njustified under the circumstances” and thus “denied [the] motion to suppress.” Id.\n\n “The case proceeded to trial,” where the “Government advanced the theory\n\nthat . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s\n\ndefense was that another man, Jeremy Fisher, had dropped the gun where it was\n\nfound and the traffic stop and subsequent scuffle only coincidentally occurred at the\n\n\n\n 4\n\fsame location . . . Fisher had dropped the gun.” Id. At the conclusion of the\n\nevidence, the jury convicted Bong of the felon-in-possession charge.\n\n The presentence investigation report (PSR) applied a base offense level of 24.\n\nBut the PSR concluded that Bong “ha[d] at least three prior convictions for a violent\n\nfelony or serious drug offense, or both, which were committed on different\n\noccasions” and was therefore “an armed career criminal and subject to an enhanced\n\nsentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.\n\nConsequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.\n\nThe PSR in turn concluded that Bong’s total criminal history score was 31, which\n\nresulted in a criminal history category of VI. Together, the total offense level of 33\n\nand the criminal history category of VI resulted in an advisory sentencing guidelines\n\nrange of 235 to 293 months.\n\n Bong did not file objections to the PSR, but did file a sentencing memorandum\n\nasking the district court to vary downward and impose a sentence of 187 months.\n\nThe district court denied that request and sentenced Bong to a term of imprisonment\n\nof 293 months.\n\n c) Bong’s direct appeal\n\n Bong filed a direct appeal challenging the district court’s denial of his motion\n\nto suppress. Bong also challenged the trial court’s admission at trial of two sets of\n\nstatements. On December 18, 2014, we issued an unpublished order and judgment\n\nrejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x\n\nat 614.\n\n 5\n\f Bong filed a petition for writ of certiorari with the Supreme Court. His\n\npetition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873\n\n(2015).\n\n d) Bong’s § 2255 proceedings\n\n On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct\n\nsentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for\n\nrelief. Of relevance here, Ground One of the motion argued that in light of the\n\nSupreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)\n\n(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes\n\nof violence” for enhanced sentencing purposes because they did not require the use,\n\nattempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two\n\nalleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to\n\n“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed\n\nCareer Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of\n\nBong’s motion alleged that his trial counsel was ineffective for failing to challenge\n\nthe PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.\n\nat 655.\n\n Bong subsequently moved for appointment of counsel. The district court\n\ngranted the motion, but solely for purposes of counsel assisting Bong “in obtaining\n\nrelief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel\n\nmoved to amend the § 2255 motion. In support, Bong’s counsel argued that, based\n\non the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),\n\n 6\n\fit was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot\n\nbe used as a predicate ‘violent felony’ for an Armed Career Criminal Act\n\nenhancement and it was error to be included as such by the [trial] Court,” and in turn\n\n“it was ineffective for his trial and appellate counsel to fail to raise this issue at the\n\ntime of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government\n\nfiled a response arguing that Mathis did not apply retroactively to cases on collateral\n\nreview. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging\n\nall of Bong’s prior convictions used to establish his ACCA status.\n\n On September 22, 2016, Bong filed a pro se pleading entitled “TROY\n\nBONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET\n\nASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.\n\nIn that pro se pleading, Bong alleged, in pertinent part, that he submitted a request\n\nunder the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,\n\nand that the City of Wichita, in response to his request, stated that “2 AXON videos\n\n(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes\n\nand 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]\n\nincarceration he [wa]s unable to purchase or receive copies of these videos,” but that\n\nthe videos “w[ould] show that [he] never resisted or attempted to escape before\n\nThatcher threw him to the ground and began using force on him.” Id. Thus, Bong\n\nargued, “these videos constitute impeaching evidence which also show that the\n\nofficers gave perjured testimony at trial upon which the jury relied to convict [him].”\n\nId.\n\n 7\n\f On October 28, 2016, the district court issued a memorandum and order\n\ndenying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based\n\narguments, noting that he “has at least three convictions under Kansas law for\n\nrobbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”\n\nId. at 1051. More specifically, the district court noted that Bong “was convicted in a\n\nKansas district court on May 29, 1990, of three counts of robbery, three counts of\n\naggravated robbery, and one count of attempted robbery.” Id. at 1052. These\n\noffenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;\n\nMarch 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”\n\nId. The district court in turn noted that “[a]t the time of the offenses, Kansas law\n\ndefined robbery as ‘the taking of property from the person or presence of another by\n\nthreat of bodily harm to his person or the person of another or by force,’” id. (quoting\n\nKan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery\n\ncommitted by a person who is armed with a dangerous weapon or who inflicts bodily\n\nharm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.\n\n§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery\n\nunder Kansas law incorporate the ‘physical force’ necessary to constitute a violent\n\noffense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he\n\nelement of force or threat of bodily harm in Kansas robbery materially distinguishes\n\nthis offense from Johnson [II]” because “[t]he Kansas element of the intentional use\n\nof force or threat of bodily harm necessarily contemplates force capable of causing\n\npain or injury, placing this offense squarely within the violent felonies Congress had\n\n 8\n\fin mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that\n\nBong cited “no Kansas Supreme Court case finding the force element of robbery to\n\nbe satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the\n\ncontrary, Kansas cases characterize robbery as a taking accomplished by violence or\n\nintimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or\n\nso robbery offenses (including aggravated robbery) were largely consolidated for\n\ncharging and sentencing,” but “occurred (with one exception) on different dates, and\n\nwere thus ‘committed on occasions different from one another.’” Id. at 1054\n\n(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).\n\n The district court rejected all of the other claims that Bong asserted, including\n\nthe various ineffective assistance of counsel and appellate counsel claims. In\n\naddition, the district court addressed Bong’s pro se reply brief in the following\n\nmanner:\n\n Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that\n attempts to raise a multitude of claims in addition to those set forth in\n the original or amended § 2255 motions. To the extent the Reply\n attempts to raise new claims, those claims are barred because they have\n been raised outside the applicable one-year statute of limitations. See\n United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)\n (“When a § 2255 movant seeks to amend his pleading to include a new\n claim, we will only entertain this claim if the amendment is made within\n the one-year limit set by AEDPA.”). To the extent the Reply raises new\n arguments (but not new claims) that were not set forth in his initial or\n amended § 2255 motions, those arguments are considered waived. See\n United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).\n Nevertheless, the court has addressed the merits of the arguments\n contained in the Reply Brief to the extent feasible.\n\nId. at 1047 n.1.\n\n\n 9\n\f Lastly, the district court granted Bong a COA with respect to the issues raised\n\nin his § 2255 motion concerning his “classification as an armed career criminal and\n\nthe effectiveness of counsel with respect to that classification.” Id. at 1072. The\n\ndistrict court denied Bong a COA on the remaining issues asserted in his § 2255\n\nmotion. Id. at 1073.\n\n Bong filed a timely notice of appeal. He has since filed a motion to expand the\n\nCOA to include additional issues.\n\n II\n\n We begin by focusing on the ACCA-related issues on which the district court\n\ngranted Bong a COA. As outlined below, we conclude that Bong’s Kansas\n\nconvictions for robbery and aggravated robbery do not constitute “violent felonies”\n\nfor purposes of the ACCA.\n\n Standards of review\n\n “A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the\n\nexclusive remedy for a federal prisoner seeking to attack the legality of detention.”\n\nUnited States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and\n\nbrackets omitted). We review de novo the district court’s rulings on a § 2255 motion\n\nand its findings of fact for clear error. Id.\n\n “Whether a prior conviction satisfies the ACCA’s violent felony definition is a\n\nlegal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263\n\n(10th Cir. 2017).\n\n\n\n 10\n\f Was Bong properly sentenced under the ACCA?\n\n “[T]he ACCA mandates an enhanced sentence of imprisonment of not less\n\nthan 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a\n\nviolent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)\n\n(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime\n\npunishable by imprisonment for a term exceeding one year” that falls within the\n\nscope of one of three enumerated clauses: (1) the elements clause, which states: “has\n\nas an element the use, attempted use, or threatened use of physical force against the\n\nperson of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which\n\nincludes any crime that “is a categorical match to the generic offenses of ‘burglary,\n\narson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the\n\nresidual clause, which includes any crime that “otherwise involves conduct that\n\npresents a serious potential risk of physical injury to another.” 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).\n\n In Johnson II, the Supreme Court held that the ACCA’s residual clause was\n\nunconstitutionally vague and “that imposing an increased sentence under the residual\n\nclause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.\n\nThe result is that, for a prior conviction to constitute a “violent felony” under the\n\nACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it\n\nmust fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d\n\nat 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery do not fall within the enumerated-offenses clause\n\n 11\n\fand, thus, must fall within the elements clause in order to constitute “violent\n\nfelonies” for purposes of the ACCA.\n\n “To determine if a prior conviction qualifies as a violent felony” under the\n\nACCA’s elements clause, “we apply the categorical approach, focusing on the\n\nelements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d\n\nat 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More\n\nspecifically, we must determine whether the Kansas statutes of conviction “ha[ve] as\n\nan element the use, attempted use, or threatened use of physical force against the\n\nperson of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both\n\nfederal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines\n\nthe meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in\n\n§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime\n\nof conviction.” Id.\n\n The terms employed in the ACCA’s elements clause have, for the most part,\n\nbeen clearly defined by the Supreme Court. The term “use,” as employed in the\n\nACCA’s elements clause, “requires active employment” rather “than negligent or\n\nmerely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the\n\nterm “physical,” as employed in the ACCA’s elements clause, means “force exerted\n\nby and through concrete bodies—distinguishing physical force from, for example,\n\nintellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138\n\n(2010) (Johnson I). As for the term “force,” the Court rejected the traditional\n\ndefinition (i.e., that force can be satisfied by even the slightest offensive touching)\n\n 12\n\fand instead held that in the context of the ACCA, the phrase “physical force” means\n\n“violent force”—“force capable of causing physical pain or injury to another person.”\n\nId. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or\n\nthreatened employment of violent force—force capable of causing physical pain or\n\ninjury—against the person of another.\n\n Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),\n\nthe Supreme Court revisited the ACCA’s elements clause to determine whether a\n\nFlorida robbery conviction constituted a predicate offense under the ACCA. In doing\n\nso, the Court held “that the elements clause encompasses robbery offenses that\n\nrequire the criminal to overcome the victim’s resistance.” 2019 WL 189343 at 3.\n\nThe Court explained that “the force necessary to overcome a victim’s physical\n\nresistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and\n\n‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”\n\nId. at 7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,\n\n“because robbery that must overpower a victim’s will—even a feeble or weak-willed\n\nvictim—necessarily involves a physical confrontation and struggle.” Id. The Court\n\nstated that a physical confrontation or “altercation need not cause pain or injury or\n\neven be prolonged” because “it is the physical contest between the criminal and the\n\nvictim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting\n\nJohnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the\n\nCourt made it a point to emphasize that the “[m]ere ‘snatching of property from\n\nanother’ will not suffice” to constitute robbery under Florida law. Id. at *9.\n\n 13\n\f Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply\n\nthese principles to [the Kansas] robbery statute to determine whether it ‘has as an\n\nelement the use, attempted use, or threatened use of physical force against the person\n\nof another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step\n\ninquiry” for resolving whether a state’s “robbery statute requires physical force as\n\nthat term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the\n\nminimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.\n\nSecond, we must “then determine if that force categorically fits the [ACCA’s]\n\ndefinition of physical force.” Id. (italics in original). The Supreme Court has\n\nemphasized “that in construing the minimum culpable conduct, such conduct only\n\nincludes that in which there is a ‘realistic probability, not a theoretical possibility’ the\n\nstate statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685\n\n(2013)). “Decisions from the state supreme court best indicate a ‘realistic\n\nprobability,’ supplemented by decisions from the intermediate-appellate courts.” Id.\n\n(quoting Moncrieffe, 133 S. Ct. at 1685).\n\n Bong’s ACCA sentence was based, in pertinent part, on three Kansas state\n\nrobbery convictions and three Kansas state aggravated robbery convictions, all of\n\nwhich occurred in April of 1990 (but were based on separate incidents). At the time\n\nof those convictions, the Kansas robbery statute provided as follows: “Robbery is the\n\ntaking of property from the person or presence of another by threat of bodily harm to\n\nhis person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).\n\nAnd the Kansas aggravated robbery statute provided: “Aggravated robbery is a\n\n 14\n\frobbery committed by a person who is armed with a dangerous weapon or who\n\ninflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.\n\n§ 21-3427 (1988).\n\n In the unpublished decision in United States v. Nicholas, 686 F. App’x 570\n\n(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas\n\nrobbery statute required “physical force” as defined in the ACCA. In doing so, the\n\npanel in Nicholas “look[ed] . . . to Kansas state law to define the substantive\n\nelements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat\n\nof bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,\n\n961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the\n\ndefendant’s robbery conviction for purse-snatching. The robbery victim in the case\n\ntestified that she had cashed some checks at a bank and walked outside with a “thing\n\nthat [she] had the money in” when, as she was opening the door to her car, McKinney\n\nappeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the\n\nmoney] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had\n\nsnatched [the victim’s] purse from her arm, but he denied pushing her,” and he\n\nconsequently “argue[d] that the jury should have been instructed on theft as a lesser\n\nincluded offense of robbery.” Id. at 8. The Kansas Supreme Court rejected\n\nMcKinney’s argument, concluding that even if he snatched the victim’s purse without\n\npushing her, simply “snatching the purse away from [the victim] constituted the\n\nthreat of bodily harm, which is an element of robbery.” Id. Although the panel in\n\nNicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will\n\n 15\n\flikely involve a greater degree of force than mere purse-snatching,” it nevertheless\n\nconcluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]\n\nlowest level of culpable conduct.”1 686 F. App’x at 575.\n\n The panel in Nicholas in turn “conclude[d] that Kansas robbery does not\n\nnecessarily require the use, attempted use, or threatened use of violent force against\n\nthe person of another.” Id. at 576. In doing so, the panel in Nicholas noted that\n\n“[s]everal circuit courts have concluded that, because a state’s robbery statute may be\n\nviolated with minimal actual force, it does not qualify as a violent felony under the\n\nACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits\n\nconstruing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).\n\nIn particular, the Nicholas panel noted that the Ninth Circuit in United States v.\n\nParnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a\n\nMassachusetts armed robbery statute, that “the snatching of a purse from a victim’s\n\nhand . . . does not constitute force ‘capable of causing physical pain or injury to\n\nanother person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).\n\n Ultimately, the panel in Nicholas concluded that “the minimum force\n\nnecessary under Kansas law to support a robbery conviction” does not “categorically\n\nfit[] the definition of physical force under the ACCA.” Id. at 575. In other words,\n\n\n 1\n In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not\nidentified a general statement from Kansas courts as to the degree of force required to\nsupport a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel\nnoted that most of the Kansas cases “addressing the force element of Kansas robbery\nhave done so in the context of determining the statute’s temporal requirements, not\nits degree-of-force requirements.” Id.\n 16\n\fthe panel held that “[b]ecause Kansas robbery does not require the use, attempted\n\nuse, or threatened use of violent force as defined in Johnson, it cannot serve as a\n\npredicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.\n\nat 576.\n\n Not surprisingly, the parties in the case before us have divergent views\n\nregarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas\n\nbecause, although “not precedential, it is persuasive and applies here.” Aplt. Br.\n\nat 48. The government, in response, argues that Nicholas “was wrongly decided.”\n\nAplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s\n\nnote in Nicholas that it could not identify a general statement from Kansas courts as\n\nto the degree of force necessary to constitute robbery,” there is in fact “sufficient\n\nguidance” in Kansas case law “establishing the force necessary to support a robbery\n\nconviction.” Aplee. Br. at 30. In particular, the government points to the following\n\nstatement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371\n\n(Kan. 1976):\n\n [T]o constitute the crime of robbery by forcibly taking money\n from the person of its owner, it is necessary that the violence to the\n owner must either precede or be contemporaneous with the taking of the\n property and robbery is not committed where the thief has gained\n peaceable possession of the property and uses no violence except to\n resist arrest or to effect his escape.\n\nId. at 375. The government also cites various dictionaries for the proposition that\n\n“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.\n\n\n\n\n 17\n\fThus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’\n\npossession of property is not robbery; rather, it is theft.” Id. at 31.\n\n Notably, the very same argument was made by the government in Nicholas and\n\nthe panel in that case rejected it, stating as follows:\n\n The primary case relied upon by the government, State v.\n Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to\n robbery while answering the question of when force must occur, not\n what degree of force is required. Id. at 373-75. Moreover, insofar as\n Aldershof appears to conflate “violence” with the force necessary to\n support a robbery conviction, those concepts are later divorced in State\n v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there\n was no violence used in the commission of the robbery . . . . Since there\n was no direct evidence as to violence occurring with that taking, the\n jury acquitted Peck on the charge of aggravated robbery, and instead\n found him guilty of simple robbery.”).\n\n More importantly, the McKinney court explicitly relied on\n Aldershof in concluding that mere purse-snatching can support a\n conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must\n therefore reject any interpretation of Aldershof that would be\n inconsistent with the holding in McKinney. See Jackson v. Harris, 43\n F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in\n conflict, the national courts will follow the latest settled adjudications of\n the highest court of the state rather than the earlier ones . . . .”). In\n doing so, we acknowledge that many, if not most, Kansas robbery\n convictions will likely involve a greater degree of force than mere\n purse-snatching; however, our analysis must focus on the lowest level of\n conduct that can support a conviction under the statute. See Moncrieffe\n v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what\n the state conviction necessarily involved, not the facts underlying the\n case, we must presume that the conviction ‘rested upon nothing more\n than the least of the acts’ criminalized, and then determine whether even\n those acts [would constitute violent felonies].” (quoting Johnson [II],\n 559 U.S. at 137) (alterations omitted)). In the context of Kansas\n robbery, McKinney establishes that lowest level of culpable conduct.\n\n686 F. App’x at 575 (parallel citations omitted).\n\n\n\n 18\n\f The government also argues that the panel in Nicholas “simply established a\n\nquantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.\n\nMore specifically, the government argues that “the panel in Nicholas arguably gave\n\nlittle credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse\n\nsnatching is simply ‘incapable’ of causing physical injury or pain to another person.”\n\nId. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”\n\nId. According to the government, “when considering that grabbing is sufficient to\n\ncause physical injury, it is reasonable to conclude that purse snatching—which\n\nnecessarily involves grabbing—is similarly sufficient force to cause physical injury.”\n\nId.\n\n The problem with the government’s argument is that it treats “purse snatching”\n\nas a singular type of action when, as case law clearly demonstrates, it can be\n\naccomplished in a variety of ways and with varying degrees of physical force. Of\n\ncourse, it is easy to conceive of a particular act of purse-snatching that involves force\n\ncapable of causing physical harm to the victim—or, indeed, that actually causes\n\nphysical harm to the victim. But that was not the task faced by the panel in Nicholas\n\nor by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]\n\nlaw for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas\n\nconcluded, correctly in our view, that this minimum level of force was defined by the\n\nspecific act of purse-snatching that occurred in McKinney—an act that, at least\n\naccording to the defendant, involved the mere snatching of the purse (or whatever the\n\nobject was that actually contained the money) without any application of force\n\n 19\n\fdirectly to the victim, and also, importantly, without any resistance by or injury to the\n\nvictim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that\n\n“neither robbery nor aggravated robbery require bodily contact or the actual\n\napplication of force to the person of another as a necessary element for the\n\ncommission of those crimes”), abrogated on other grounds by State v. Adams, 744\n\nP.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in\n\nKansas can be accomplished with minimal force that falls short of the “violent force”\n\nrequired under the ACCA’s elements clause.\n\n The government also suggests that Nicholas is inconsistent with our published\n\nopinion in Harris. The government notes that in Harris, the “panel rejected the Ninth\n\nCircuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on\n\nParnell to support its conclusion that Kansas’ robbery statute runs afoul of\n\nJohnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,\n\nNicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and\n\nHarris recognized that Parnell dealt with a robbery conviction under Massachusetts\n\nlaw and both noted that under Massachusetts law, a defendant may be convicted of\n\nrobbery without using violence or intimidation of any sort. Nicholas and Harris came\n\nto different outcomes because each case addressed a different state statute. In\n\nNicholas, the panel concluded that robbery under Kansas law was similar to robbery\n\n\n\n\n 20\n\funder Massachusetts law, whereas the panel in Harris concluded that robbery under\n\nColorado law differed from robbery under Massachusetts law. 2\n\n In sum, we conclude that the government has failed to establish that the panel\n\nin Nicholas erred in concluding that “the minimum force necessary under Kansas law\n\nto support a robbery conviction” does not “categorically fit[] the definition of\n\nphysical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the\n\nreasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery\n\ncannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement\n\nprovisions.\n\n The question then becomes whether we should proceed to address the other\n\nconvictions that were cited in the PSR as predicate offenses, or whether we should\n\ninstead remand the case to the district court to determine in the first instance whether\n\nthose convictions are countable predicate offenses. Because the parties have briefed\n\nthe question of whether Bong’s Kansas state aggravated robbery convictions can\n\nserve as predicate offenses under the ACCA, we will proceed to address that\n\nquestion.\n\n\n\n 2\n As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded\nthat a New York conviction for attempted robbery in the second degree was not a\n“crime of violence” for purposes of the career offender guidelines because “there is a\nrealistic probability that [the defendant’s] conviction was for attempting to commit\nan offense for which the least of the acts that may have constituted that offense\nincluded ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st\nCir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.\n1978)).\n\n 21\n\f As noted, Bong has three prior convictions for violating the Kansas aggravated\n\nrobbery statute. At the time of his convictions, that statute provided: “Aggravated\n\nrobbery is a robbery committed by a person who is armed with a dangerous weapon\n\nor who inflicts bodily harm upon any person in the course of such robbery.” Kan.\n\nStat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated\n\nrobbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a\n\nperson who (b) is armed with a dangerous weapon or who inflicts bodily harm upon\n\nany person in the course of such robbery.3 Having concluded that robbery under\n\nKansas law is not a “violent crime” for purposes of the ACCA, the question remains\n\nwhether the second element described above is sufficient to render an aggravated\n\nrobbery a “violent crime.”\n\n In answering this question, we begin and ultimately end by focusing on\n\nwhether being armed with a dangerous weapon during the course of a robbery is\n\nsufficient to render the crime a “violent crime” for purposes of the ACCA. The\n\nKansas aggravated robbery statute does not define “armed,” and we have not found\n\nany Kansas cases expressly defining the term.4 Turning to dictionary definitions,\n\n\n 3\n It appears clear that these two alternative methods of rendering a robbery an\n“aggravated robbery” are not elements of different offenses, but rather only different\nmeans by which a person commits a single armed robbery offense. See Mathis 136\nS. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery\ncan be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts\nbodily harm on any person in the course of such robbery’”).\n 4\n The Kansas pattern jury instructions stated that it was not necessary for the\ndefendant to have exhibited the dangerous weapon to the victim, and that whether or\n (Continued . . .)\n 22\n\fBlack’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or\n\n“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).\n\nSimilarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or\n\ncarrying a weapon or weapons (now typically firearms); involving the use of\n\nweaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being\n\n“equipped” with a weapon is the same as “possessing” a weapon. In other words,\n\nsimple possession of a weapon, rather than actual use of a weapon, is a sufficient\n\nmeans of being “armed” for the purposes of the Kansas aggravated robbery statute.\n\nAnd that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where\n\nthe Kansas Supreme Court held that the Kansas aggravated robbery “statute requires\n\nonly that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the\n\nvictim be aware of its presence.” Id. at 725.\n\n We in turn conclude that merely being “armed” with a weapon during the\n\ncourse of a robbery is not sufficient to render the crime a “violent crime” for\n\npurposes of the ACCA. For example, take the simple robbery that was committed in\n\nMcKinney—i.e., the purse-snatching. Had the defendant in that case been armed\n\nwith a weapon, even a concealed one, at the time of the purse-snatching, that would\n\nhave been sufficient to render the crime an aggravated robbery under Kansas law.\n\nBut, as with the simple crime of purse snatching, nothing about the defendant’s mere\n\npossession of a firearm (or another deadly weapon) would have necessarily caused\n\n\nnot the defendant was armed with a dangerous weapon was determined from the\nvictim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).\n 23\n\fthe crime to involve “the use, attempted use, or threatened use of violent force\n\nagainst the person of another.” § 924(e)(2)(B)(i).\n\n Notably, the Ninth Circuit addressed a similar question in Parnell and\n\nconcluded that “[t]he mere fact that an individual is armed . . . does not mean he or\n\nshe has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like\n\nthe Kansas aggravated robbery statute at issue here, the Massachusetts aggravated\n\nrobbery statute that was before the court in Parnell did “not require a weapon to be\n\nused or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus\n\nconcluded that “[t]here is a material difference between the presence of a weapon,\n\nwhich produces a risk of violent force, and the actual or threatened use of such\n\nforce.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls\n\nwithin the ACCA’s force clause.”5 Id.\n\n To be sure, the government in this case acknowledges Parnell, but states that it\n\n“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the\n\ngovernment makes no attempt to explain why Parnell’s holding on this point was\n\nincorrect.\n\n In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of\n\nColumbia Circuit distinguished Parnell, but it did so on the basis that the statute of\n\n\n\n 5\n As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the\nsame conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th\nCir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not\ncategorically qualify as a violent felony conviction under the ACCA’s force clause).\n\n 24\n\fconviction in the case before it—i.e., Maryland armed robbery—required “that the\n\ndefendant commit the crime with the use of a dangerous or deadly weapon.” Id.\n\nat 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute\n\nrequired the use of a dangerous or deadly weapon, then Bong’s prior aggravated\n\nrobbery convictions would constitute predicate offenses under the ACCA. But, as\n\nnoted, the Kansas aggravated robbery statute does not include this requirement. We\n\ntherefore conclude that the Kansas crime of aggravated robbery is not categorically a\n\n“violent crime” for purposes of the ACCA.\n\n In light of our conclusions regarding Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery, we reverse the district court’s denial of Bong’s\n\n§ 2255 motion and remand to the district court for further proceedings. On remand,\n\nthe district court will need to determine in the first instance whether Bong’s\n\nremaining convictions are sufficient to support application of the ACCA.\n\nSpecifically, Bong has the following convictions that might constitute “crimes of\n\nviolence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a\n\nresidence; (2) a 1990 Kansas conviction for aggravated escape from custody (he\n\nescaped from the Sedgwick County Community Corrections Center); (3) a 1999\n\nKansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for\n\ntrafficking in contraband in a correctional facility. Bong briefly addresses the\n\nburglary and trafficking convictions in his opening appellate brief, but we conclude it\n\nis proper for the district court to consider these prior convictions in the first instance.\n\n Ineffective assistance of trial and appellate counsel—ACCA sentence\n\n 25\n\f The district court also granted Bong a COA on the question of whether his trial\n\nand appellate counsel were ineffective for failing to object to the district court’s\n\nimposition of the ACCA sentence. Having concluded that the district court erred in\n\nbasing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery\n\nconvictions, it is unnecessary for us to address this ineffective assistance claim.\n\n III\n\n We now turn to the two issues as to which we granted Bong a COA:\n\n(1) whether the district court erred in rejecting his claim that his trial counsel was\n\nineffective for failing to independently investigate the facts of the alleged crime; and\n\n(2) whether the district court erred in summarily dismissing his claim regarding the\n\nallegedly newly-discovered videos of his stop and arrest (which his counsel now\n\ncharacterizes as a Brady/Giglio claim).6\n\n Ineffective assistance of trial counsel – failure to investigate\n\n Bong alleged in his original pro se § 2255 motion, and in greater detail in his\n\npro se reply brief, that his trial counsel was ineffective for failing to investigate the\n\nfacts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.\n\nBong argues that had his trial counsel “conducted even a minimally adequate\n\ninvestigation, trial counsel would have discovered and presented multiple witnesses\n\n\n 6\n See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the\nsuppression by the prosecution of evidence favorable to an accused upon request\nviolates due process where the evidence is material either to guilt or to punishment”);\nGiglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,\nunder Brady, that affects the credibility of a witness whose testimony “may well be\ndeterminative of guilt or innocence”).\n 26\n\fto corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm\n\nand ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in\n\nturn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.\n\nRelatedly, Bong argues that “the district court erred in disregarding the factual\n\nallegations set forth in [his] second pro se pleading.” Id. Although Bong concedes\n\nthat he titled this second pro se pleading a “Reply,” he argues this was “immaterial”\n\nbecause “pro se pleadings must be liberally construed” and thus the district court was\n\nobligated “to construe the ‘Reply’ as an amendment.” Id.\n\n The district court considered and rejected Bong’s claim that his trial counsel\n\nfailed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,\n\nthe district court stated:\n\n Defendant’s § 2255 motion fails to identify any material matters\n that defense counsel failed to investigate. His massive Reply Brief\n identifies a multitude of issues that defendant now claims should have\n been further investigated. But defendant fails to address the significant\n evidence weighing against his claim that his statement was involuntary,\n fails to show that counsel’s performance fell below an objective\n standard of reasonableness, and fails to show that the alleged failure to\n investigate likely made a difference in the outcome.\n\nId. at 1068.\n\n [D]efendant fails to cite any material evidence that defense\n counsel failed to discover or to address in the course of the proceedings.\n Defendant now claims a number of other things could have been\n investigated, but most of these items have nothing to do with the issue\n of whether defendant possessed the firearm that was found during the\n stop. Defendant has now produced an affidavit of an individual named\n Roger Schmidt, who says that he talked to defendant and his wife on the\n night of the stop. Even if such evidence had been presented, however,\n there is no reason to believe it could have affected the outcome of the\n trial. Similarly, defendant now presents a statement from an individual\n\n 27\n\f named Richard Sipes, who claims to have seen defendant at the\n suspected drug house on the evening of the stop, and who says “there\n was not a gun around.” But in addition to obvious problems with this\n witness’s credibility, his statement shows no basis for knowing whether\n defendant had a gun in his waistband or in his car. Any failure to\n discover such testimony did not prejudice defendant. Essentially,\n defendant’s claim that additional investigation would have produced\n evidence to exonerate him is unsupported speculation.\n\nId. at 1069–70 (citations omitted). At no point did Bong expressly request an\n\nevidentiary hearing on his failure-to-investigate claim and the district court in turn\n\ndid not address the need for a hearing.\n\n We review de novo Bong’s ineffective assistance of counsel claim and, in\n\ndoing so, accept any underlying factual findings made by the district court unless\n\nthey are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.\n\n2014).\n\n We conclude, with one exception, that the district court properly rejected\n\nBong’s allegations of ineffective assistance as either meritless or time-barred. That\n\none exception concerns Bong’s allegation that his trial counsel was ineffective for\n\nfailing to request copies of any available video recordings of the traffic stop and his\n\narrest. As we have noted, Bong alleged in his pro se reply brief that at some point in\n\n2016, while he was incarcerated, he contacted the City of Wichita and requested\n\ncopies of evidence relevant to his case under KORA. In response, the City of\n\nWichita allegedly acknowledged that “2 AXON videos (patrol car recording\n\nequipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the\n\nCity of Wichita allegedly refused to provide Bong with a copy of the videos due to\n\n\n 28\n\fthe fact that he was incarcerated. Id. Bong now argues that these videos necessarily\n\nmust have been of his traffic stop and arrest and were improperly suppressed by the\n\npolice department or prosecution. Bong in turn alleges that these videos “will show\n\nthat [he] never resisted or attempted to escape before Thatcher just threw him to the\n\nground and began using force on him.” Id.\n\n The district court did not expressly address these allegations in its order\n\ndenying Bong’s § 2255 motion. Instead, the district court treated these allegations as\n\nuntimely because they were raised for the first time in Bong’s pro se reply brief and\n\nthus, in the district court’s view, fell outside of the one-year time limit set by\n\nAEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new\n\nclaims, those claims are barred because they have been raised outside the applicable\n\none-year statute of limitations.”). The district court failed to consider, however, the\n\nfact that Bong’s § 2255 motion was filed within one year after Bong allegedly\n\ndiscovered this new evidence. Based upon the materials contained in the record on\n\nappeal, we conclude that the district court should have, at a minimum, determined\n\n“the date on which the facts supporting the claim . . . could have been discovered\n\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation\n\nperiod shall run from the latest of . . . the date on which the facts supporting the\n\nclaim or claims presented could have been discovered through the exercise of due\n\n\n\n\n 29\n\fdiligence.”). Consequently, we reverse on this narrow issue of ineffective assistance\n\nof trial counsel and remand to the district court for further consideration.7\n\n Brady/Giglio claims – suppression of video evidence\n\n Bong also challenges the district court’s dismissal of his related Brady/Giglio\n\nclaim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”\n\nUnited States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady\n\nclaim requires the defendant to show by a preponderance of the evidence (1) that the\n\ngovernment suppressed evidence, (2) that the evidence was favorable to the\n\ndefendant, and (3) that the evidence was material.” Id.\n\n Bong alleged that “[t]hrough local law enforcement actions attributable to the\n\nGovernment, the Government suppressed the video recordings” of the traffic stop and\n\nhis arrest and that “Officer Thatcher presented false testimony denying that any video\n\nrecordings existed.” Aplt. Br. at 44. The district court did not expressly address this\n\nclaim in its order denying Bong’s § 2255 motion, but instead concluded that it was a\n\nnew claim raised for the first time in Bong’s pro se reply brief and was “barred\n\nbecause [it was] raised outside the applicable one-year statute of limitations.” ROA,\n\nVol. 1 at 1047 n.1.\n\n As with Bong’s related ineffective assistance claim, the district court failed to\n\nconsider the fact that Bong’s § 2255 motion was filed within one year after Bong\n\n\n\n 7\n We note that this ineffective assistance of counsel claim is intertwined with,\nand will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the\nalleged videotapes of his stop and arrest.\n 30\n\fallegedly discovered the existence of the video recordings. And, notably, the\n\ngovernment agreed at oral argument that the district court erred in summarily\n\ndismissing the claim as untimely. Consequently, we reverse the district court’s\n\ndismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for\n\nfurther consideration.8\n\n IV\n\n With respect to Bong’s claims regarding his ACCA sentence, we REVERSE\n\nthe district court’s denial of § 2255 relief and REMAND with directions to the\n\ndistrict court to determine whether Bong’s ACCA sentence can be supported by his\n\nnon-robbery-related convictions. With respect to Bong’s ineffective assistance of\n\ncounsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district\n\ncourt for further proceedings consistent with this opinion. With respect to Bong’s\n\nBrady/Giglio claim, we REVERSE and REMAND for further proceedings consistent\n\nwith this opinion. Bong’s motion for expedited relief in DENIED as moot.\n\n\n\n\n 8\n According to the government, it has evidence, in particular affidavits from\nCity employees, directly refuting Bong’s allegations regarding the purported\nvideotapes. But the government conceded that this evidence is not in the record on\nappeal and thus the proper course is for the district court to consider all of the\nevidence in the first instance.\n 31\n[END_CASE]", "role": "user" } ]
4,585,459	UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant.	United States v. Pullen	2019-01-29	17-3194	U.S. Court of Appeals for the Tenth Circuit	{"judges": "McHugh, Moritz, Eid", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n No. 17-3194\n v.\n\n BOBBY G. PULLEN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)\n _________________________________\n\nDaniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody\nBrannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public\nDefender), Kansas City, Kansas, for Defendant - Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States\nAttorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant\nUnited States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.\n _________________________________\n\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\n\n The district court sentenced Bobby G. Pullen as a career offender pursuant to\n\nUnited States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the\n\fSentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.\n\nUnited States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.\n\n§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)\n\nis identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision\n\nfor USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a\n\nsecond or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a\n\nprima facie showing that Johnson created a retroactive, new rule of constitutional law\n\napplicable to the mandatory Guidelines. The district court, however, concluded Johnson\n\ndid not actually create a new rule applicable to the mandatory Guidelines and dismissed\n\nMr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing\n\nauthorization to file a second or successive § 2255 motion. The district court did,\n\nhowever, grant Mr. Pullen a certificate of appealability (“COA”).\n\n On appeal, Mr. Pullen argues the district court procedurally erred when it relied on\n\n§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when\n\nit determined Johnson did not create a new rule applicable to the mandatory Guidelines.\n\nAs to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,\n\n887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his\n\nargument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has\n\nnever recognized a void for vagueness challenge to the Guidelines and so Johnson neither\n\ncreates a new rule applicable to the Guidelines nor dictates that any provision of the\n\n\n\n\n 2\n\fGuidelines is subject to a void for vagueness challenge. Accordingly, we affirm the\n\ndistrict court’s judgment.\n\n I. BACKGROUND\n\n In 1999, a jury convicted Mr. Pullen of one count of possession with intent to\n\ndistribute 100 kilograms or more of marihuana, or aiding and abetting the same, in\n\nviolation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district\n\ncourt established a total offense level of thirty-four and a criminal history category of VI.\n\nThe offense level and criminal history category resulted from application of the career\n\noffender provision of USSG § 4B1.1 (1998). Application of the career offender provision\n\nrested in part on a prior Missouri conviction for escape. Under the offense level and\n\ncriminal history category compelled by the career offender provision, the presentence\n\ninvestigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’\n\nimprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.\n\nAbsent designation as a career offender, Mr. Pullen’s Guidelines range would have been\n\n92 to 115 months’ imprisonment.\n\n In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the\n\ndistrict court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,\n\n2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court\n\ndecided Johnson, relying on the void for vagueness doctrine to invalidate the residual\n\nclause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is\n\npart of the Armed Career Criminal Act (“ACCA”), which enhances the statutory\n\nmandatory minimum for certain defendants who have three or more previous\n\n 3\n\fconvictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).\n\nSection 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is\n\nburglary, arson, or extortion, involves use of explosives, or otherwise involves\n\nconduct that presents a serious potential risk of physical injury to another.”\n\n(emphasis added). The clause emphasized above is the residual clause invalidated in\n\nJohnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the\n\nresidual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of\n\nthe career offender guideline as an offense that “is burglary of a dwelling, arson, or\n\nextortion, involves use of explosives, or otherwise involves conduct that presents a\n\nserious potential risk of physical injury to another.” USSG 4B1.2(a)(2) (emphasis\n\nadded).\n\n Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.\n\n§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable\n\nto the mandatory Guidelines, filed a motion in this court for authorization to file a\n\nsecond or successive § 2255 motion. We granted the motion for authorization and\n\nMr. Pullen filed his § 2255 motion in district court. The Government filed a response\n\nin which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime\n\nof violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in\n\npart, that (1) Johnson did not create a new rule applicable to the mandatory\n\nGuidelines; (2) a rule allowing void for vagueness challenges to the Guidelines\n\nwould be a new rule that the Supreme Court had not yet recognized; and (3) Mr.\n\nPullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).\n\n 4\n\f The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.\n\nPullen’s motion be based on “a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The\n\ndistrict court concluded Mr. Pullen’s motion was untimely and did not satisfy\n\n§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to\n\nthe Guidelines but neither Johnson nor any other Supreme Court case has recognized a\n\nvoid for vagueness challenge to the Guidelines. Thus, the district court, relying on\n\n§ 2255(h)(2), dismissed Mr. Pullen’s motion.\n\n The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA\n\nreads: “Here, the Court concludes that reasonable jurists could debate whether the Court\n\nwas correct in its ruling. The Court thus grants a COA on the issue of whether Mr.\n\nPullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his\n\nopening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this\n\nprovision is directed at the circuit court’s authority to grant a prisoner authorization to file\n\na second or successive § 2255 motion and, once a circuit court grants authorization, the\n\ndistrict court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,\n\nthe Government argues a grant of authorization by a circuit court only preliminarily\n\ncertifies that the movant satisfied the preconditions for a second or successive § 2255\n\n\n\n 1\n Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen\nis represented by counsel, we deny his motion. See United States v. McDermott, 64\nF.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se\nbrief based on “policy of addressing on direct appeal only those issues raised by\ncounsel”).\n 5\n\fmotion and that the district court has a secondary gatekeeping role to assure the motion\n\ndoes, in fact, satisfy § 2255(h)(2). The Government further argues the district court\n\ncorrectly concluded Johnson did not create a retroactive, new rule applicable to the\n\nmandatory Guidelines.\n\n After briefing concluded, several key developments occurred in the law\n\nsurrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,\n\nholding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which\n\nis similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was\n\nunconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied\n\ncertiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based\n\nchallenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,\n\n138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several\n\nother circuit courts addressed whether Johnson created a retroactive, new rule applicable\n\nto the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,\n\n1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory\n\nGuidelines are susceptible to void for vagueness challenge); Russo v. United States, 902\n\nF.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not\n\nasserting a right based on Johnson because reasonable minds could debate whether\n\nJohnson announced a new rule of constitutional law applicable to the mandatory\n\nGuidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding\n\n§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors\n\nconclusion Johnson did not create new rule applicable to mandatory Guidelines and that\n\n 6\n\fissue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)\n\n(holding Johnson created new rule applicable to all vague, mandatory residual clauses\n\nthat enhance punishment such that § 2255 relief from sentence imposed under mandatory\n\nGuidelines scheme was proper).\n\n In the midst of these developments, we ordered the parties to submit\n\nsimultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues\n\nDimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a\n\n due process right not to have a statutory penalty range fixed by a\n provision that defines a prior conviction as one involving “conduct that\n presents a serious potential risk of physical injury to another,” and that\n uses an ordinary-case categorical approach to measure whether the\n conviction is sufficiently risky to count under the provision.\n\nPullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues\n\nneither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision\n\nor whether the void for vagueness doctrine applies to the Guidelines. Rather, the\n\nGovernment argues, Beckles provides the best guidance on whether Johnson created\n\na new rule relative to the mandatory Guidelines. The majority opinion in Beckles\n\nrejected a Johnson-based challenge to the advisory Guidelines and Justice\n\nSotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory\n\nGuidelines “remains an open question.” Gov. Supp. Br. at 5. The Government\n\n\n 2\n Out of concern that his counsel might not have filed a supplemental brief,\nMr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by\ncounsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.\nSee McDermott, 64 F.3d at 1150 n.1.\n 7\n\ftheorizes that if the question remains open, Johnson does not create a new rule\n\napplicable to the mandatory Guidelines because, if a question is “expressly left open,\n\nthen the right, by definition, has not been recognized.” Id. at 5–6 (quoting United\n\nStates v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14\n\n(2018)).\n\n Finally, subsequent to oral argument, the Supreme Court, over a two justice\n\ndissent, denied certiorari petitions in a second set of cases where circuit courts denied\n\n§ 2255 motions raising Johnson-based challenges to the residual clause of USSG\n\n§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,\n\n139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);\n\nLewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,\n\n2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.\n\n15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.\n\nUnited States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL\n\n3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);\n\nBuckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.\n\nUnited States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL\n\n\n 3\n Footnote 1 of the dissent from the denial of certiorari in Brown v. United\nStates indicates that the dissent also applies to the other nine orders denying\ncertiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,\nJ., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in\nBrown in full and without reservation, we interpret footnote 1 as indicating that\nJustice Ginsburg dissented from the other nine denials of certiorari issued on October\n15, 2018, even though the orders in those denials do not specifically identify Justice\nGinsburg as dissenting.\n 8\n\f3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,\n\n2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).\n\n II. STANDARD OF REVIEW\n\n “Where, as here, the district court does not hold an evidentiary hearing, but\n\nrather denies the motion as a matter of law . . . our review is strictly de novo.” United\n\nStates v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).\n\nFurther, “[w]e are not bound by the district court’s reasoning and may affirm on any\n\nground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,\n\n1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL\n\n2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are\n\nfree to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is\n\na sufficient record to permit conclusions of law.”).\n\n III. DISCUSSION\n\n A. Threshold Requirement for Second or Successive § 2255 Motion\n\n Although prisoners who have not filed a prior § 2255 motion may file such a\n\nmotion directly in the district court, a prisoner who filed a prior § 2255 motion must\n\nobtain authorization from a circuit court judge prior to filing the motion in district\n\ncourt. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or\n\nsuccessive application permitted by this section is filed in the district court, the\n\napplicant shall move in the appropriate court of appeals for an order authorizing the\n\ndistrict court to consider the application.”). Section 2255(h) of Title 28 sets out the\n\nrequirements for authorization and states, in pertinent part:\n\n 9\n\f A second or successive motion must be certified as provided in section\n 2244 by a panel of the appropriate court of appeals to contain—\n ...\n (2) a new rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable.\n\nTo obtain authorization to file a second or successive § 2255 motion, a movant\n\nrelying on a new rule of constitutional law must make a prima facie showing to the\n\ncircuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.\n\n§ 2244(b)(3)(C).\n\n B. Secondary Requirement for Second or Successive § 2255 Motion\n\n Having concluded that Mr. Pullen made a prima facie showing to the circuit court\n\nthat he satisfies the § 2255(h)(2) requirements, we next consider whether the district\n\ncourt possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion\n\npursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.\n\nOur recent decision in Murphy controls our analysis.\n\n As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion\n\nmust be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain\n\na previously unavailable new rule of constitutional law that the Supreme Court has\n\nmade retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at\n\n1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only\n\nmake a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).\n\nBecause § 2244(b)(3) requires only a prima facie showing for certification by the\n\ncourt of appeals, certification amounts to only a “preliminary” determination that the\n\n\n 10\n\fsecond or successive § 2255 motion contains a claim based on a new rule of\n\nconstitutional law made retroactive on collateral review by the Supreme Court. Id.\n\nThe “preliminary” nature of this determination means the movant must pass through\n\na second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the\n\ncourt of appeals grants authorization, the district court must determine whether the\n\npetition does, in fact, satisfy the requirements for filing a second or successive\n\nmotion before the merits of the motion can be considered.” Id. (internal quotation\n\nmarks omitted). In summation, the two procedural gates a prisoner must pass through\n\nbefore obtaining review of the merits of a second or successive § 2255 motion are:\n\n (1) a prima facie showing to the court of appeals that the motion\n satisfies the requirements of § 2255(h), defined as “a sufficient\n showing of possible merit to warrant a fuller exploration by the\n district court” and\n (2) a determination by the district court that the petition does, in fact,\n satisfy those requirements.\n\nId. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).\n\n In accord with this two-gate approach, the district court was required to\n\nanalyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of\n\nconstitutional law, made retroactive to cases on collateral review by the Supreme\n\nCourt” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s\n\n§ 2255 motion did not actually rely on a new rule of constitutional law applicable to\n\nthe mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the\n\nmotion.\n\n\n\n\n 11\n\f With these requirements in mind, we discuss the history of the Sentencing\n\nGuidelines and of Johnson and its progeny before turning to the issue of whether the\n\ndistrict court correctly determined that Mr. Pullen cannot actually satisfy the\n\nrequirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his\n\nmotion relies on a new rule of constitutional law already decided and deemed\n\nretroactively applicable by the Supreme Court.\n\n C. Legal Background\n\n1. History of the Guidelines\n\n In 1984, Congress authorized the United States Sentencing Commission to\n\npromulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362\n\n(1989). Prior to the adoption of the Guidelines, the often expansive statutory\n\nminimum and maximum penalties for an offense served as the only constraint on a\n\nfederal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines\n\nsentencing scheme as one where “Congress delegated almost unfettered discretion to\n\nthe sentencing judge to determine what the sentence should be within the customarily\n\nwide range so selected”). One of the primary purposes behind the creation of the\n\nGuidelines was to “promote uniformity and proportionality in sentencing” across the\n\ncountry. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en\n\nbanc). And in passing the Sentencing Reform Act of 1984, Congress intentionally\n\n“settl[ed] on a mandatory-guideline system,” rather than an advisory system.\n\nMistretta, 488 U.S. at 367.\n\n\n\n 12\n\f Codifying the generally mandatory nature of the Guidelines, Congress enacted\n\n18 U.S.C. § 3553(b)(1), which states, in pertinent part:\n\n Except as provided in paragraph (2), the court shall impose a sentence\n of the kind, and within the range, [produced by the Guidelines] unless\n the court finds that there exists an aggravating or mitigating\n circumstance of a kind, or to a degree, not adequately taken into\n consideration by the Sentencing Commission in formulating the\n guidelines that should result in a sentence different from that described.\n In determining whether a circumstance was adequately taken into\n consideration, the court shall consider only the sentencing guidelines,\n policy statements, and official commentary of the Sentencing\n Commission.\n\n(emphasis added). In 2005, the Supreme Court struck down the above-quoted\n\nstatutory provision, concluding the Sixth Amendment precluded a sentencing judge\n\nfrom finding facts that effectively increased a defendant’s punishment where those\n\nfacts had not been found by a jury or admitted by the defendant as part of a guilty\n\nplea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,\n\nthe Court held the Guidelines acted like a statute because a sentencing judge’s ability\n\nto depart from the Guidelines range was so strictly limited that the Guidelines range\n\ndrove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the\n\nconstitutional problem with a mandatory-Guidelines scheme, the Supreme Court\n\nsevered the portion of the Sentencing Reform Act of 1984 that made the Guidelines\n\n\n\n\n 4\n Despite Booker’s statement about judicial factfinding at sentencing violating\nthe Sixth Amendment, an exception to this general prohibition exists where the\ndistrict court makes factual findings regarding a defendant’s prior criminal history.\nSee Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).\n 13\n\fmandatory, transforming the Guidelines into their present-day, advisory form. Id. at\n\n265; see also id. at 245–60.\n\n2. Johnson and its Progeny\n\n In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.\n\n§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as\n\n any crime punishable by imprisonment for a term exceeding one year\n . . . that—\n (i) has as an element the use, attempted use, or threatened use of\n physical force against the person of another; or\n (ii) is burglary, arson, or extortion, involves use of explosives, or\n otherwise involves conduct that presents a serious potential\n risk of physical injury to another\n\n(emphasis added). In Johnson, the Court concluded the emphasized language, known\n\nas the residual clause, was void for vagueness because “the indeterminacy of the\n\nwide-ranging inquiry required by the residual clause both denies fair notice to\n\ndefendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at\n\n2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it\n\npunishes” and being “so standardless that it invites arbitrary enforcement” as two\n\nbases for finding statute unconstitutionally vague). Johnson, however, limited its\n\nholding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s\n\ndecision does not call into question application of the [ACCA] to the four enumerated\n\noffenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also\n\nGreer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in\n\nJohnson was a defendant’s right not to have his sentence increased under the residual\n\nclause of the ACCA.”).\n\n 14\n\f In the aftermath of Johnson, courts were flooded with challenges, both on\n\ndirect appeal and under § 2255, to convictions or sentences supported by\n\n§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of\n\nSupreme Court cases shape the state of the law post-Johnson. First, in Welch v.\n\nUnited States, the Court held Johnson announced a new rule of constitutional law\n\nthat applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65\n\n(2016). Although Welch never explicitly states the rule from Johnson, the majority\n\nopinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking\n\ndown the residual clause as void for vagueness, Johnson changed the substantive\n\nreach of the Armed Career Criminal Act, altering the range of conduct or the class of\n\npersons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so\n\nit can no longer mandate or authorize any sentence. Johnson establishes . . . that even\n\nthe use of impeccable factfinding procedures could not legitimate a sentence based\n\non that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\nvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).\n\n Second, in Beckles, the Court addressed whether the residual clause of USSG\n\n§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge\n\n\n\n\n 15\n\fsimilar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the\n\nresidual clause of USSG § 4B1.2(a)(2) was identical to the language held void for\n\nvagueness in Johnson, several circuit courts, including this court, concluded the rule\n\nfrom Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)\n\nwithin the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d\n\n902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en\n\nbanc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States\n\nv. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge\n\nto advisory Guidelines).\n\n In Beckles, the Supreme Court rejected the position that the advisory\n\nGuidelines were susceptible to the rule from Johnson or a void for vagueness\n\n\n\n 5\n Recall that USSG § 4B1.2 defined “crime of violence” as:\n\n [A]ny offense under federal or state law, punishable by imprisonment\n for a term exceeding one year, that—\n (1) has as an element the use, attempted use, or threatened use of\n physical force against the person of another, or\n (2) is burglary of a dwelling, arson, or extortion, involves use of\n explosives, or otherwise involves conduct that presents a\n serious potential risk of physical injury to another.\n\nUSSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the\nresidual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),\nand is at issue in this case. In 2016, the Sentencing Commission passed an\namendment to the Guidelines adding several enumerated offenses to subsection (2)\nand removing the residual clause of the subsection. USSG Supp. to App. C., Amend\n798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no\nbearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See\nUSSG § 1B1.10(d) (listing amendments that apply retroactively).\n\n 16\n\fchallenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated\n\ntwo kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses\n\nand laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and\n\nthird emphases added). The Beckles Court further observed that “‘statutes fixing\n\nsentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.\n\n(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United\n\nStates v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range\n\nof penalties that prosecutors and judges may seek and impose,’ Congress ha[s]\n\n‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting\n\nBatchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,\n\nwhich “do not fix the permissible range of sentences,” from the “statute” at issue in\n\nJohnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court\n\nconcluded “[t]he advisory Guidelines . . . do not implicate the twin concerns\n\nunderlying [the] vagueness doctrine—providing notice and preventing arbitrary\n\nenforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice\n\nrequired is provided by the applicable statutory range, which establishes the\n\npermissible bounds of the court’s sentencing discretion.” Id. Along those lines, the\n\nCourt stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any\n\nconduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at\n\n895 (quoting Mistretta, 488 U.S. at 396).\n\n The majority opinion in Beckles, however, indicated that the second concern of\n\nthe void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated\n\n 17\n\fby the advisory nature of the Guidelines post-Booker and the sentencing judge’s\n\ndiscretion to impose a sentence anywhere within the statutory range. Id. The\n\ndistinction between the discretion afforded sentencing judges under the advisory\n\nGuidelines, compared to the mandatory Guidelines, caught the attention of Justice\n\nSotomayor, whose concurrence stated:\n\n The Court’s adherence to the formalistic distinction between mandatory\n and advisory rules at least leaves open the question whether defendants\n sentenced to terms of imprisonment before our decision in United States\n v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the\n Guidelines did “fix the permissible range of sentences”—may mount\n vagueness attacks on their sentences. That question is not presented by\n this case and I, like the majority, take no position on its appropriate\n resolution.\n\nId. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).\n\n Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine\n\nto strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the\n\nCourt described as “similarly worded” to the residual clause struck down in Johnson.\n\nDimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three\n\nstatements potentially important to determining the scope of the new rule from\n\nJohnson. First, Dimaya indicated its ruling was a product of “adhering” to the\n\nanalysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward\n\ndecision, with equally straightforward application here” such that the “reasoning” of\n\nJohnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.\n\n\n 6\n Notably, Dimaya could have, but did not, state that any “rule” from Johnson\n“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n\n 18\n\fFinally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes\n\n“‘require[] a court to picture the kind of conduct that the crime involves in “the\n\nordinary case” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.\n\nCt. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)\n\nproduces, just as the ACCA’s residual clause did, ‘more unpredictability and\n\narbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2558).\n\n D. Analysis\n\n Based on Johnson and its progeny, Mr. Pullen describes the new and\n\nretroactive rule from Johnson as a right not to be sentenced under an ordinary-case\n\ncategorical approach requiring a judge to picture conduct of the crime and predict\n\nwhether that conduct presents a sufficiently large degree of risk. Before considering\n\nthe rule Mr. Pullen advances, we pause to address the iterations of the rule by this\n\ncourt and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,\n\nultimately deciding it does not permit relief on a second or successive § 2255 claim\n\nchallenging the mandatory Guidelines because the Supreme Court has not yet\n\n\n\n\n2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]\ncase announces a new rule if the result was not dictated by precedent existing at the\ntime the defendant’s conviction became final” and concluding that any rule relative\nto the mandatory Guidelines would be a new rule because the rule “is not dictated by\nJohnson”).\n 19\n\fannounced a rule with respect to the mandatory Guidelines. Thus, we agree with the\n\ndistrict court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).\n\n1. Decisions Defining the Rule Announced in Johnson\n\n Several circuit court decisions, including our own decision in Greer, have\n\nstated the new rule created by Johnson as “a defendant’s right not to have his\n\nsentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at\n\n1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to\n\nthe residual clause in the ACCA created a right only as to the ACCA, and not a\n\nbroader right that applied to all similarly worded residual clauses, such as that found\n\nin the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only\n\nrecognized that ACCA’s residual clause was unconstitutionally vague.”). If this\n\nphrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to\n\nproceed on his § 2255 motion because his Guidelines range was increased as a result\n\nof application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the\n\nmandatory Guidelines and not the residual clause of the ACCA.\n\n The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying\n\non Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has\n\nexpressed the new rule from Johnson as “a right not to have his sentence dictated by\n\n\n\n 7\n The narrowness of that statement of the rule from Johnson has been called\ninto question by Dimaya’s application of the rule to a statutory context outside of the\nACCA—albeit on direct review. But we need not define the precise boundaries of the\nrule today because Mr. Pullen’s attempt to apply Johnson to the mandatory\nGuidelines fails even under his more expansive statement of that rule.\n 20\n\fthe unconstitutionally vague language of the mandatory residual clause.” Cross, 892\n\nF.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from\n\nCross as Seventh Circuit’s statement of new right from Johnson). But the Ninth\n\nCircuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a\n\nhigh level of generality that it runs afoul of Supreme Court teachings regarding the\n\nparameters for phrasing a new rule for purposes of a collateral proceeding. See\n\nBlackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our\n\ncourt not to advance on its own in determining what rights have been recognized by\n\nthe Supreme Court under AEDPA.”) (citations omitted). We need not consider\n\nwhether the Seventh Circuit’s articulation of the rule is so broad as to restate existing\n\nlaw, rather than announcing a new rule, because Mr. Pullen has espoused a more\n\nnarrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of\n\nthe new rule now.\n\n2. Mr. Pullen’s Statement of the Rule\n\n Mr. Pullen argues the proper statement of the new rule from Johnson is the\n\nright not to be sentenced under an ordinary-case categorical approach that requires\n\nthe judge to imagine both the conduct necessary to commit the crime and the degree\n\nof risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can\n\nbe drawn from the dissent in Welch and from Dimaya. On the former, as pointed out\n\nabove, the dissent in Welch identified the new rule from Johnson in a manner similar\n\nto the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\n 21\n\fvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the\n\nlatter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally\n\nvague if it “‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct\n\nregarding the proper phrasing of the new rule from Johnson, three considerations\n\ndefeat his ability to rely on the rule to proceed with a second or successive § 2255\n\nmotion challenging the mandatory Guidelines.\n\n First, central to whether Mr. Pullen can rely on any new rule from Johnson is\n\nwhether application of the rule to the mandatory Guidelines is “dictated by\n\nprecedent” and “apparent to all reasonable jurists” as opposed to “susceptible to\n\ndebate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8\n\nNeither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the\n\nGuidelines, mandatory or advisory. Instead, the only case to address a Johnson-based\n\nchallenge to the Guidelines is Beckles, which concluded the advisory Guidelines were\n\n\n 8\n The Eighth Circuit reached this conclusion based on a trio of Supreme Court\ncases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301\n(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,\n494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n2018).\n\n 22\n\fnot susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the\n\nadvisory nature of the Guidelines at issue in Beckles was undoubtedly important to\n\nthe Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability\n\nto the mandatory Guidelines remained an open question. See id. at 903 n.4\n\n(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the\n\nformalistic distinction between mandatory and advisory rules at least leaves open the\n\nquestion whether defendants sentenced to terms of imprisonment before our decision\n\nin United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If\n\na question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at\n\n301 (“[I]f the existence of a right remains an open question as a matter of Supreme\n\nCourt precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,\n\n867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been\n\nnewly recognized by the Supreme Court’ let alone one that was ‘made retroactively\n\napplicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also\n\nBlackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming\n\ndenial of § 2255 relief).\n\n Second, central to why the question remains open is that Johnson involved a\n\nfederal statute, while the Guidelines, even in their mandatory form, were agency-\n\n\n 9\n Even after Dimaya, Justice Sotomayor still believes the question remains\nopen. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting\nfrom denial of certiorari) (“But for petitioners like Brown, who were sentenced long\nbefore Johnson, this Court has thus far left the validity of their sentences an open\nquestion. The Court’s decision today all but ensures that the question will never be\nanswered.” (citation omitted)).\n 23\n\fcreated rules formed by the U.S. Sentencing Commission to supplement existing,\n\ncongressionally-enacted statutory maximum and minimum sentencing ranges. While\n\nthe Guidelines established a mandatory range, this mandatory range always fell\n\nwithin the statutory minimum and maximum affixed by Congress. See USSG\n\n§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the\n\nSupreme Court might conclude the statutory scheme enacted by Congress placed the\n\ndefendant on fair notice of the possible penalties he faced for committing an offense.\n\nCf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors\n\nand judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting\n\nBatchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by\n\nthe applicable statutory range, which establishes the permissible bounds of the\n\ncourt’s sentencing discretion.”).10\n\n Third, where the Guidelines replaced an open-ended sentencing scheme under\n\nwhich judges could impose any sentence within the statutory range, even a somewhat\n\nvague residual clause in the Guidelines provided more guidance to sentencing judges\n\nthan existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,\n\n\n 10\n By concluding that the Supreme Court might not strike the residual clause in\nthe mandatory Guidelines as void for vagueness, we do not mean to suggest the Court\nwill reach such a result.\n 11\n Mr. Pullen does not identify any case holding that an open-ended sentencing\nscheme under which a judge could impose any sentence between a properly\nannounced statutory minimum and statutory maximum failed under the Due Process\nClause and the void for vagueness doctrine.\n\n\n 24\n\f1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to\n\nsentencing only under guidelines, the limitations the Guidelines place on a judge’s\n\ndiscretion cannot violate a defendant’s right to due process by reason of being vague.\n\n. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,\n\nbecause the Supreme Court has already indicated in Beckles that a defendant received\n\nfair notice of the broad, but specified, range of penalties he faced under the statutory\n\nscheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing\n\njudge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)\n\nthan in the absence of any Guidelines, the Court might conclude that the two\n\nconcerns underlying the void for vagueness doctrine are not present in the context of\n\nthe mandatory Guidelines.\n\n\n\n\n 12\n To be sure, the Supreme Court could conclude the language of USSG\n§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process\nand void for vagueness considerations. Justice Sotomayor suggested the possibility of\nsuch a result within her concurrence in Beckles:\n\n [A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]\n creates serious risk of “arbitrary enforcement.” . . . It introduces an\n unacceptable degree of arbitrariness into sentencing proceedings to begin by\n applying a rule that is so vague that efforts to interpret it boil down to\n guesswork and intuition.”\n\n137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the\nSupreme Court has not yet answered the question. This is fatal to Mr. Pullen’s\nsuccessive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis\nwhere Mr. Pullen must identify a new rule retroactively applicable to his claim for\nrelief.\n\n 25\n\f In accord with the second and third reasons discussed above, Beckles observed\n\nthat the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:\n\nlaws that define criminal offenses and laws that fix the permissible sentences for\n\ncriminal offenses.” Id. at 892 (first and third emphases added). As to the second type\n\nof laws, “‘statutes fixing sentences’ must specify the range of available sentences\n\nwith ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at\n\n2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the\n\nmandatory Guidelines were not laws or statutes; rather, they merely operated like\n\nstatutes. Thus, while the Supreme Court might one day conclude, by relying on the\n\nactual innocence gateway,13 that the mandatory Guidelines sufficiently took the form\n\nof a law or a statute so as to expose the mandatory Guidelines to a void for vagueness\n\nchallenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s\n\nability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not\n\nyet established by the Supreme Court and, consequently, not made retroactively\n\napplicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.\n\n\n 13\n This circuit does not recognize actual innocence in the sentencing context,\nexcept in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th\nCir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”\n(internal quotation marks omitted)). But other circuits do permit such arguments, see\nCristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the\nSupreme Court has left open the question of whether a prisoner can rely on the actual\ninnocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.\n386, 393–94 (2004).\n 14\n The Court could conclude that the mandatory Guidelines, although not\nstatutes, are subject to a void for vagueness challenge and that they do not satisfy due\n\n 26\n\fPullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;\n\nRusso, 902 F.3d at 883.\n\n3. Summation\n\n Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration\n\nof the new rule from Johnson. Accordingly, the district court correctly concluded Mr.\n\nPullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing\n\na second or successive § 2255 motion. This conclusion is consistent with the rulings\n\nof six of our seven sibling circuits, which deny § 2255 relief because Johnson either\n\n(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines\n\nfor purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new\n\nrule applicable to the mandatory Sentencing Guidelines for purposes of meeting the\n\nrequirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying\n\n§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory\n\nGuidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);\n\nBrown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re\n\n\n\nprocess concerns because they permitted judges to prescribe sentencing ranges\narbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which\npermits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to\ndate, the Supreme Court has not announced a new rule retroactively applicable to the\nmandatory Guidelines. Nor, as apparent from the denials of certiorari, has the\nSupreme Court seen fit to take up the issue of Johnson’s impact on the mandatory\nGuidelines. And unless and until it does, Mr. Pullen cannot establish that his\nsuccessive § 2255 motion actually relies on a new rule for purposes of authorization\nunder § 2255(h)(2).\n\n\n 27\n\fGriffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because\n\nJohnson did not announce new rule applicable to the mandatory Guidelines).15 But\n\nsee Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent\n\ndenials of certiorari on a series of petitions seeking reversal of the aforementioned\n\ncircuit decisions. And while denials of certiorari often do not shed light on the merits\n\n\n 15\n Although the Fourth, Sixth and Eleventh Circuits reached their decisions\nbefore Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon\nRaybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,\n599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court\ndecision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,\n254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state\nof the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x\n501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not\nappear the Fourth Circuit has revisited the issue since Dimaya.\n Separately, we observe that while In re Griffin involved the denial of\nauthorization for failing to make a prima facie showing under § 2255(h)(2) and 28\nU.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),\nMr. Pullen already passed through the prima facie gate when we granted\nauthorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.\nPullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude\nMr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).\n 16\n Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72\n(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,\ninvolved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)\nthat a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines\nand not the conclusion that the second or successive § 2255 motion was actually\npremised on a new rule of constitutional law made retroactive by the Supreme Court\nfor purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80\n(“Having explained the focused yet tentative nature of the examination called for in\nevaluating a request to file a second or successive § 2255 motion, we turn next to\nMoore’s motion.”). Thus, even if other language in Moore suggests the panel of the\nFirst Circuit would have reached the same conclusion had it been conducting a\n§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent\nas to the § 2244(b)(4) question.\n\n\n 28\n\fof an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of\n\ncertiorari (1) were over a two justice dissent, which expressly states the question is\n\nopen and not likely to ever be resolved; and (2) the individual defendants are now\n\nprecluded from filing new and timely § 2255 motions based on Johnson should the\n\nSupreme Court later adopt the position advanced in their certiorari petitions.17\n\n IV. CONCLUSION\n\n We conclude Johnson did not create a new rule of constitutional law applicable to\n\nthe mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s\n\napplicability to the mandatory Guidelines remains an open question; (2) the Guidelines,\n\neven in their mandatory form, were not statutes; and (3) even a vague provision of the\n\nGuidelines provided more guidance to defendants and sentencing judges than did the\n\ncongressionally-enacted statutory minimum and maximum sentences that provided\n\ndefendants sufficient due process. Although the Supreme Court might reject all of these\n\nconsiderations and invalidate the residual clause of the mandatory Guidelines, it has not\n\nyet done so. Because Johnson did not create a new rule of constitutional law applicable to\n\n\n\n\n 17\n In concluding that, regardless of how the new rule from Johnson is phrased,\nJohnson does not create a new rule of constitutional law relative to the mandatory\nGuidelines, we find it unnecessary to decide whether Greer’s statement of the rule\nfrom Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,\nthat Johnson does not create a new rule of constitutional law applicable to the\nmandatory Guidelines, remains good law.\n\n\n 29\n\fthe mandatory Guidelines, the district court properly denied relief and dismissed Mr.\n\nPullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18\n\n\n\n\n 18\n We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion\nto file a pro se supplemental brief.\n 30", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362712/", "author_raw": "McHUGH"}]}	MCHUGH	MORITZ	EID	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585459/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n No. 17-3194\n v.\n\n BOBBY G. PULLEN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)\n _________________________________\n\nDaniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody\nBrannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public\nDefender), Kansas City, Kansas, for Defendant - Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States\nAttorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant\nUnited States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.\n _________________________________\n\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\n\n The district court sentenced Bobby G. Pullen as a career offender pursuant to\n\nUnited States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the\n\fSentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.\n\nUnited States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.\n\n§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)\n\nis identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision\n\nfor USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a\n\nsecond or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a\n\nprima facie showing that Johnson created a retroactive, new rule of constitutional law\n\napplicable to the mandatory Guidelines. The district court, however, concluded Johnson\n\ndid not actually create a new rule applicable to the mandatory Guidelines and dismissed\n\nMr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing\n\nauthorization to file a second or successive § 2255 motion. The district court did,\n\nhowever, grant Mr. Pullen a certificate of appealability (“COA”).\n\n On appeal, Mr. Pullen argues the district court procedurally erred when it relied on\n\n§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when\n\nit determined Johnson did not create a new rule applicable to the mandatory Guidelines.\n\nAs to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,\n\n887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his\n\nargument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has\n\nnever recognized a void for vagueness challenge to the Guidelines and so Johnson neither\n\ncreates a new rule applicable to the Guidelines nor dictates that any provision of the\n\n\n\n\n 2\n\fGuidelines is subject to a void for vagueness challenge. Accordingly, we affirm the\n\ndistrict court’s judgment.\n\n I. BACKGROUND\n\n In 1999, a jury convicted Mr. Pullen of one count of possession with intent to\n\ndistribute 100 kilograms or more of marihuana, or aiding and abetting the same, in\n\nviolation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district\n\ncourt established a total offense level of thirty-four and a criminal history category of VI.\n\nThe offense level and criminal history category resulted from application of the career\n\noffender provision of USSG § 4B1.1 (1998). Application of the career offender provision\n\nrested in part on a prior Missouri conviction for escape. Under the offense level and\n\ncriminal history category compelled by the career offender provision, the presentence\n\ninvestigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’\n\nimprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.\n\nAbsent designation as a career offender, Mr. Pullen’s Guidelines range would have been\n\n92 to 115 months’ imprisonment.\n\n In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the\n\ndistrict court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,\n\n2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court\n\ndecided Johnson, relying on the void for vagueness doctrine to invalidate the residual\n\nclause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is\n\npart of the Armed Career Criminal Act (“ACCA”), which enhances the statutory\n\nmandatory minimum for certain defendants who have three or more previous\n\n 3\n\fconvictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).\n\nSection 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is\n\nburglary, arson, or extortion, involves use of explosives, or otherwise involves\n\nconduct that presents a serious potential risk of physical injury to another.”\n\n(emphasis added). The clause emphasized above is the residual clause invalidated in\n\nJohnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the\n\nresidual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of\n\nthe career offender guideline as an offense that “is burglary of a dwelling, arson, or\n\nextortion, involves use of explosives, or otherwise involves conduct that presents a\n\nserious potential risk of physical injury to another.” USSG 4B1.2(a)(2) (emphasis\n\nadded).\n\n Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.\n\n§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable\n\nto the mandatory Guidelines, filed a motion in this court for authorization to file a\n\nsecond or successive § 2255 motion. We granted the motion for authorization and\n\nMr. Pullen filed his § 2255 motion in district court. The Government filed a response\n\nin which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime\n\nof violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in\n\npart, that (1) Johnson did not create a new rule applicable to the mandatory\n\nGuidelines; (2) a rule allowing void for vagueness challenges to the Guidelines\n\nwould be a new rule that the Supreme Court had not yet recognized; and (3) Mr.\n\nPullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).\n\n 4\n\f The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.\n\nPullen’s motion be based on “a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The\n\ndistrict court concluded Mr. Pullen’s motion was untimely and did not satisfy\n\n§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to\n\nthe Guidelines but neither Johnson nor any other Supreme Court case has recognized a\n\nvoid for vagueness challenge to the Guidelines. Thus, the district court, relying on\n\n§ 2255(h)(2), dismissed Mr. Pullen’s motion.\n\n The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA\n\nreads: “Here, the Court concludes that reasonable jurists could debate whether the Court\n\nwas correct in its ruling. The Court thus grants a COA on the issue of whether Mr.\n\nPullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his\n\nopening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this\n\nprovision is directed at the circuit court’s authority to grant a prisoner authorization to file\n\na second or successive § 2255 motion and, once a circuit court grants authorization, the\n\ndistrict court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,\n\nthe Government argues a grant of authorization by a circuit court only preliminarily\n\ncertifies that the movant satisfied the preconditions for a second or successive § 2255\n\n\n\n 1\n Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen\nis represented by counsel, we deny his motion. See United States v. McDermott, 64\nF.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se\nbrief based on “policy of addressing on direct appeal only those issues raised by\ncounsel”).\n 5\n\fmotion and that the district court has a secondary gatekeeping role to assure the motion\n\ndoes, in fact, satisfy § 2255(h)(2). The Government further argues the district court\n\ncorrectly concluded Johnson did not create a retroactive, new rule applicable to the\n\nmandatory Guidelines.\n\n After briefing concluded, several key developments occurred in the law\n\nsurrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,\n\nholding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which\n\nis similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was\n\nunconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied\n\ncertiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based\n\nchallenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,\n\n138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several\n\nother circuit courts addressed whether Johnson created a retroactive, new rule applicable\n\nto the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,\n\n1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory\n\nGuidelines are susceptible to void for vagueness challenge); Russo v. United States, 902\n\nF.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not\n\nasserting a right based on Johnson because reasonable minds could debate whether\n\nJohnson announced a new rule of constitutional law applicable to the mandatory\n\nGuidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding\n\n§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors\n\nconclusion Johnson did not create new rule applicable to mandatory Guidelines and that\n\n 6\n\fissue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)\n\n(holding Johnson created new rule applicable to all vague, mandatory residual clauses\n\nthat enhance punishment such that § 2255 relief from sentence imposed under mandatory\n\nGuidelines scheme was proper).\n\n In the midst of these developments, we ordered the parties to submit\n\nsimultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues\n\nDimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a\n\n due process right not to have a statutory penalty range fixed by a\n provision that defines a prior conviction as one involving “conduct that\n presents a serious potential risk of physical injury to another,” and that\n uses an ordinary-case categorical approach to measure whether the\n conviction is sufficiently risky to count under the provision.\n\nPullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues\n\nneither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision\n\nor whether the void for vagueness doctrine applies to the Guidelines. Rather, the\n\nGovernment argues, Beckles provides the best guidance on whether Johnson created\n\na new rule relative to the mandatory Guidelines. The majority opinion in Beckles\n\nrejected a Johnson-based challenge to the advisory Guidelines and Justice\n\nSotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory\n\nGuidelines “remains an open question.” Gov. Supp. Br. at 5. The Government\n\n\n 2\n Out of concern that his counsel might not have filed a supplemental brief,\nMr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by\ncounsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.\nSee McDermott, 64 F.3d at 1150 n.1.\n 7\n\ftheorizes that if the question remains open, Johnson does not create a new rule\n\napplicable to the mandatory Guidelines because, if a question is “expressly left open,\n\nthen the right, by definition, has not been recognized.” Id. at 5–6 (quoting United\n\nStates v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14\n\n(2018)).\n\n Finally, subsequent to oral argument, the Supreme Court, over a two justice\n\ndissent, denied certiorari petitions in a second set of cases where circuit courts denied\n\n§ 2255 motions raising Johnson-based challenges to the residual clause of USSG\n\n§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,\n\n139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);\n\nLewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,\n\n2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.\n\n15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.\n\nUnited States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL\n\n3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);\n\nBuckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.\n\nUnited States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL\n\n\n 3\n Footnote 1 of the dissent from the denial of certiorari in Brown v. United\nStates indicates that the dissent also applies to the other nine orders denying\ncertiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,\nJ., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in\nBrown in full and without reservation, we interpret footnote 1 as indicating that\nJustice Ginsburg dissented from the other nine denials of certiorari issued on October\n15, 2018, even though the orders in those denials do not specifically identify Justice\nGinsburg as dissenting.\n 8\n\f3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,\n\n2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).\n\n II. STANDARD OF REVIEW\n\n “Where, as here, the district court does not hold an evidentiary hearing, but\n\nrather denies the motion as a matter of law . . . our review is strictly de novo.” United\n\nStates v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).\n\nFurther, “[w]e are not bound by the district court’s reasoning and may affirm on any\n\nground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,\n\n1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL\n\n2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are\n\nfree to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is\n\na sufficient record to permit conclusions of law.”).\n\n III. DISCUSSION\n\n A. Threshold Requirement for Second or Successive § 2255 Motion\n\n Although prisoners who have not filed a prior § 2255 motion may file such a\n\nmotion directly in the district court, a prisoner who filed a prior § 2255 motion must\n\nobtain authorization from a circuit court judge prior to filing the motion in district\n\ncourt. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or\n\nsuccessive application permitted by this section is filed in the district court, the\n\napplicant shall move in the appropriate court of appeals for an order authorizing the\n\ndistrict court to consider the application.”). Section 2255(h) of Title 28 sets out the\n\nrequirements for authorization and states, in pertinent part:\n\n 9\n\f A second or successive motion must be certified as provided in section\n 2244 by a panel of the appropriate court of appeals to contain—\n ...\n (2) a new rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable.\n\nTo obtain authorization to file a second or successive § 2255 motion, a movant\n\nrelying on a new rule of constitutional law must make a prima facie showing to the\n\ncircuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.\n\n§ 2244(b)(3)(C).\n\n B. Secondary Requirement for Second or Successive § 2255 Motion\n\n Having concluded that Mr. Pullen made a prima facie showing to the circuit court\n\nthat he satisfies the § 2255(h)(2) requirements, we next consider whether the district\n\ncourt possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion\n\npursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.\n\nOur recent decision in Murphy controls our analysis.\n\n As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion\n\nmust be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain\n\na previously unavailable new rule of constitutional law that the Supreme Court has\n\nmade retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at\n\n1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only\n\nmake a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).\n\nBecause § 2244(b)(3) requires only a prima facie showing for certification by the\n\ncourt of appeals, certification amounts to only a “preliminary” determination that the\n\n\n 10\n\fsecond or successive § 2255 motion contains a claim based on a new rule of\n\nconstitutional law made retroactive on collateral review by the Supreme Court. Id.\n\nThe “preliminary” nature of this determination means the movant must pass through\n\na second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the\n\ncourt of appeals grants authorization, the district court must determine whether the\n\npetition does, in fact, satisfy the requirements for filing a second or successive\n\nmotion before the merits of the motion can be considered.” Id. (internal quotation\n\nmarks omitted). In summation, the two procedural gates a prisoner must pass through\n\nbefore obtaining review of the merits of a second or successive § 2255 motion are:\n\n (1) a prima facie showing to the court of appeals that the motion\n satisfies the requirements of § 2255(h), defined as “a sufficient\n showing of possible merit to warrant a fuller exploration by the\n district court” and\n (2) a determination by the district court that the petition does, in fact,\n satisfy those requirements.\n\nId. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).\n\n In accord with this two-gate approach, the district court was required to\n\nanalyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of\n\nconstitutional law, made retroactive to cases on collateral review by the Supreme\n\nCourt” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s\n\n§ 2255 motion did not actually rely on a new rule of constitutional law applicable to\n\nthe mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the\n\nmotion.\n\n\n\n\n 11\n\f With these requirements in mind, we discuss the history of the Sentencing\n\nGuidelines and of Johnson and its progeny before turning to the issue of whether the\n\ndistrict court correctly determined that Mr. Pullen cannot actually satisfy the\n\nrequirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his\n\nmotion relies on a new rule of constitutional law already decided and deemed\n\nretroactively applicable by the Supreme Court.\n\n C. Legal Background\n\n1. History of the Guidelines\n\n In 1984, Congress authorized the United States Sentencing Commission to\n\npromulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362\n\n(1989). Prior to the adoption of the Guidelines, the often expansive statutory\n\nminimum and maximum penalties for an offense served as the only constraint on a\n\nfederal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines\n\nsentencing scheme as one where “Congress delegated almost unfettered discretion to\n\nthe sentencing judge to determine what the sentence should be within the customarily\n\nwide range so selected”). One of the primary purposes behind the creation of the\n\nGuidelines was to “promote uniformity and proportionality in sentencing” across the\n\ncountry. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en\n\nbanc). And in passing the Sentencing Reform Act of 1984, Congress intentionally\n\n“settl[ed] on a mandatory-guideline system,” rather than an advisory system.\n\nMistretta, 488 U.S. at 367.\n\n\n\n 12\n\f Codifying the generally mandatory nature of the Guidelines, Congress enacted\n\n18 U.S.C. § 3553(b)(1), which states, in pertinent part:\n\n Except as provided in paragraph (2), the court shall impose a sentence\n of the kind, and within the range, [produced by the Guidelines] unless\n the court finds that there exists an aggravating or mitigating\n circumstance of a kind, or to a degree, not adequately taken into\n consideration by the Sentencing Commission in formulating the\n guidelines that should result in a sentence different from that described.\n In determining whether a circumstance was adequately taken into\n consideration, the court shall consider only the sentencing guidelines,\n policy statements, and official commentary of the Sentencing\n Commission.\n\n(emphasis added). In 2005, the Supreme Court struck down the above-quoted\n\nstatutory provision, concluding the Sixth Amendment precluded a sentencing judge\n\nfrom finding facts that effectively increased a defendant’s punishment where those\n\nfacts had not been found by a jury or admitted by the defendant as part of a guilty\n\nplea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,\n\nthe Court held the Guidelines acted like a statute because a sentencing judge’s ability\n\nto depart from the Guidelines range was so strictly limited that the Guidelines range\n\ndrove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the\n\nconstitutional problem with a mandatory-Guidelines scheme, the Supreme Court\n\nsevered the portion of the Sentencing Reform Act of 1984 that made the Guidelines\n\n\n\n\n 4\n Despite Booker’s statement about judicial factfinding at sentencing violating\nthe Sixth Amendment, an exception to this general prohibition exists where the\ndistrict court makes factual findings regarding a defendant’s prior criminal history.\nSee Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).\n 13\n\fmandatory, transforming the Guidelines into their present-day, advisory form. Id. at\n\n265; see also id. at 245–60.\n\n2. Johnson and its Progeny\n\n In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.\n\n§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as\n\n any crime punishable by imprisonment for a term exceeding one year\n . . . that—\n (i) has as an element the use, attempted use, or threatened use of\n physical force against the person of another; or\n (ii) is burglary, arson, or extortion, involves use of explosives, or\n otherwise involves conduct that presents a serious potential\n risk of physical injury to another\n\n(emphasis added). In Johnson, the Court concluded the emphasized language, known\n\nas the residual clause, was void for vagueness because “the indeterminacy of the\n\nwide-ranging inquiry required by the residual clause both denies fair notice to\n\ndefendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at\n\n2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it\n\npunishes” and being “so standardless that it invites arbitrary enforcement” as two\n\nbases for finding statute unconstitutionally vague). Johnson, however, limited its\n\nholding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s\n\ndecision does not call into question application of the [ACCA] to the four enumerated\n\noffenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also\n\nGreer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in\n\nJohnson was a defendant’s right not to have his sentence increased under the residual\n\nclause of the ACCA.”).\n\n 14\n\f In the aftermath of Johnson, courts were flooded with challenges, both on\n\ndirect appeal and under § 2255, to convictions or sentences supported by\n\n§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of\n\nSupreme Court cases shape the state of the law post-Johnson. First, in Welch v.\n\nUnited States, the Court held Johnson announced a new rule of constitutional law\n\nthat applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65\n\n(2016). Although Welch never explicitly states the rule from Johnson, the majority\n\nopinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking\n\ndown the residual clause as void for vagueness, Johnson changed the substantive\n\nreach of the Armed Career Criminal Act, altering the range of conduct or the class of\n\npersons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so\n\nit can no longer mandate or authorize any sentence. Johnson establishes . . . that even\n\nthe use of impeccable factfinding procedures could not legitimate a sentence based\n\non that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\nvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).\n\n Second, in Beckles, the Court addressed whether the residual clause of USSG\n\n§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge\n\n\n\n\n 15\n\fsimilar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the\n\nresidual clause of USSG § 4B1.2(a)(2) was identical to the language held void for\n\nvagueness in Johnson, several circuit courts, including this court, concluded the rule\n\nfrom Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)\n\nwithin the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d\n\n902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en\n\nbanc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States\n\nv. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge\n\nto advisory Guidelines).\n\n In Beckles, the Supreme Court rejected the position that the advisory\n\nGuidelines were susceptible to the rule from Johnson or a void for vagueness\n\n\n\n 5\n Recall that USSG § 4B1.2 defined “crime of violence” as:\n\n [A]ny offense under federal or state law, punishable by imprisonment\n for a term exceeding one year, that—\n (1) has as an element the use, attempted use, or threatened use of\n physical force against the person of another, or\n (2) is burglary of a dwelling, arson, or extortion, involves use of\n explosives, or otherwise involves conduct that presents a\n serious potential risk of physical injury to another.\n\nUSSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the\nresidual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),\nand is at issue in this case. In 2016, the Sentencing Commission passed an\namendment to the Guidelines adding several enumerated offenses to subsection (2)\nand removing the residual clause of the subsection. USSG Supp. to App. C., Amend\n798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no\nbearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See\nUSSG § 1B1.10(d) (listing amendments that apply retroactively).\n\n 16\n\fchallenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated\n\ntwo kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses\n\nand laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and\n\nthird emphases added). The Beckles Court further observed that “‘statutes fixing\n\nsentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.\n\n(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United\n\nStates v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range\n\nof penalties that prosecutors and judges may seek and impose,’ Congress ha[s]\n\n‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting\n\nBatchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,\n\nwhich “do not fix the permissible range of sentences,” from the “statute” at issue in\n\nJohnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court\n\nconcluded “[t]he advisory Guidelines . . . do not implicate the twin concerns\n\nunderlying [the] vagueness doctrine—providing notice and preventing arbitrary\n\nenforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice\n\nrequired is provided by the applicable statutory range, which establishes the\n\npermissible bounds of the court’s sentencing discretion.” Id. Along those lines, the\n\nCourt stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any\n\nconduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at\n\n895 (quoting Mistretta, 488 U.S. at 396).\n\n The majority opinion in Beckles, however, indicated that the second concern of\n\nthe void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated\n\n 17\n\fby the advisory nature of the Guidelines post-Booker and the sentencing judge’s\n\ndiscretion to impose a sentence anywhere within the statutory range. Id. The\n\ndistinction between the discretion afforded sentencing judges under the advisory\n\nGuidelines, compared to the mandatory Guidelines, caught the attention of Justice\n\nSotomayor, whose concurrence stated:\n\n The Court’s adherence to the formalistic distinction between mandatory\n and advisory rules at least leaves open the question whether defendants\n sentenced to terms of imprisonment before our decision in United States\n v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the\n Guidelines did “fix the permissible range of sentences”—may mount\n vagueness attacks on their sentences. That question is not presented by\n this case and I, like the majority, take no position on its appropriate\n resolution.\n\nId. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).\n\n Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine\n\nto strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the\n\nCourt described as “similarly worded” to the residual clause struck down in Johnson.\n\nDimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three\n\nstatements potentially important to determining the scope of the new rule from\n\nJohnson. First, Dimaya indicated its ruling was a product of “adhering” to the\n\nanalysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward\n\ndecision, with equally straightforward application here” such that the “reasoning” of\n\nJohnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.\n\n\n 6\n Notably, Dimaya could have, but did not, state that any “rule” from Johnson\n“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n\n 18\n\fFinally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes\n\n“‘require[] a court to picture the kind of conduct that the crime involves in “the\n\nordinary case” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.\n\nCt. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)\n\nproduces, just as the ACCA’s residual clause did, ‘more unpredictability and\n\narbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2558).\n\n D. Analysis\n\n Based on Johnson and its progeny, Mr. Pullen describes the new and\n\nretroactive rule from Johnson as a right not to be sentenced under an ordinary-case\n\ncategorical approach requiring a judge to picture conduct of the crime and predict\n\nwhether that conduct presents a sufficiently large degree of risk. Before considering\n\nthe rule Mr. Pullen advances, we pause to address the iterations of the rule by this\n\ncourt and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,\n\nultimately deciding it does not permit relief on a second or successive § 2255 claim\n\nchallenging the mandatory Guidelines because the Supreme Court has not yet\n\n\n\n\n2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]\ncase announces a new rule if the result was not dictated by precedent existing at the\ntime the defendant’s conviction became final” and concluding that any rule relative\nto the mandatory Guidelines would be a new rule because the rule “is not dictated by\nJohnson”).\n 19\n\fannounced a rule with respect to the mandatory Guidelines. Thus, we agree with the\n\ndistrict court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).\n\n1. Decisions Defining the Rule Announced in Johnson\n\n Several circuit court decisions, including our own decision in Greer, have\n\nstated the new rule created by Johnson as “a defendant’s right not to have his\n\nsentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at\n\n1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to\n\nthe residual clause in the ACCA created a right only as to the ACCA, and not a\n\nbroader right that applied to all similarly worded residual clauses, such as that found\n\nin the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only\n\nrecognized that ACCA’s residual clause was unconstitutionally vague.”). If this\n\nphrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to\n\nproceed on his § 2255 motion because his Guidelines range was increased as a result\n\nof application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the\n\nmandatory Guidelines and not the residual clause of the ACCA.\n\n The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying\n\non Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has\n\nexpressed the new rule from Johnson as “a right not to have his sentence dictated by\n\n\n\n 7\n The narrowness of that statement of the rule from Johnson has been called\ninto question by Dimaya’s application of the rule to a statutory context outside of the\nACCA—albeit on direct review. But we need not define the precise boundaries of the\nrule today because Mr. Pullen’s attempt to apply Johnson to the mandatory\nGuidelines fails even under his more expansive statement of that rule.\n 20\n\fthe unconstitutionally vague language of the mandatory residual clause.” Cross, 892\n\nF.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from\n\nCross as Seventh Circuit’s statement of new right from Johnson). But the Ninth\n\nCircuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a\n\nhigh level of generality that it runs afoul of Supreme Court teachings regarding the\n\nparameters for phrasing a new rule for purposes of a collateral proceeding. See\n\nBlackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our\n\ncourt not to advance on its own in determining what rights have been recognized by\n\nthe Supreme Court under AEDPA.”) (citations omitted). We need not consider\n\nwhether the Seventh Circuit’s articulation of the rule is so broad as to restate existing\n\nlaw, rather than announcing a new rule, because Mr. Pullen has espoused a more\n\nnarrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of\n\nthe new rule now.\n\n2. Mr. Pullen’s Statement of the Rule\n\n Mr. Pullen argues the proper statement of the new rule from Johnson is the\n\nright not to be sentenced under an ordinary-case categorical approach that requires\n\nthe judge to imagine both the conduct necessary to commit the crime and the degree\n\nof risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can\n\nbe drawn from the dissent in Welch and from Dimaya. On the former, as pointed out\n\nabove, the dissent in Welch identified the new rule from Johnson in a manner similar\n\nto the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\n 21\n\fvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the\n\nlatter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally\n\nvague if it “‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct\n\nregarding the proper phrasing of the new rule from Johnson, three considerations\n\ndefeat his ability to rely on the rule to proceed with a second or successive § 2255\n\nmotion challenging the mandatory Guidelines.\n\n First, central to whether Mr. Pullen can rely on any new rule from Johnson is\n\nwhether application of the rule to the mandatory Guidelines is “dictated by\n\nprecedent” and “apparent to all reasonable jurists” as opposed to “susceptible to\n\ndebate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8\n\nNeither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the\n\nGuidelines, mandatory or advisory. Instead, the only case to address a Johnson-based\n\nchallenge to the Guidelines is Beckles, which concluded the advisory Guidelines were\n\n\n 8\n The Eighth Circuit reached this conclusion based on a trio of Supreme Court\ncases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301\n(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,\n494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n2018).\n\n 22\n\fnot susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the\n\nadvisory nature of the Guidelines at issue in Beckles was undoubtedly important to\n\nthe Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability\n\nto the mandatory Guidelines remained an open question. See id. at 903 n.4\n\n(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the\n\nformalistic distinction between mandatory and advisory rules at least leaves open the\n\nquestion whether defendants sentenced to terms of imprisonment before our decision\n\nin United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If\n\na question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at\n\n301 (“[I]f the existence of a right remains an open question as a matter of Supreme\n\nCourt precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,\n\n867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been\n\nnewly recognized by the Supreme Court’ let alone one that was ‘made retroactively\n\napplicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also\n\nBlackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming\n\ndenial of § 2255 relief).\n\n Second, central to why the question remains open is that Johnson involved a\n\nfederal statute, while the Guidelines, even in their mandatory form, were agency-\n\n\n 9\n Even after Dimaya, Justice Sotomayor still believes the question remains\nopen. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting\nfrom denial of certiorari) (“But for petitioners like Brown, who were sentenced long\nbefore Johnson, this Court has thus far left the validity of their sentences an open\nquestion. The Court’s decision today all but ensures that the question will never be\nanswered.” (citation omitted)).\n 23\n\fcreated rules formed by the U.S. Sentencing Commission to supplement existing,\n\ncongressionally-enacted statutory maximum and minimum sentencing ranges. While\n\nthe Guidelines established a mandatory range, this mandatory range always fell\n\nwithin the statutory minimum and maximum affixed by Congress. See USSG\n\n§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the\n\nSupreme Court might conclude the statutory scheme enacted by Congress placed the\n\ndefendant on fair notice of the possible penalties he faced for committing an offense.\n\nCf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors\n\nand judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting\n\nBatchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by\n\nthe applicable statutory range, which establishes the permissible bounds of the\n\ncourt’s sentencing discretion.”).10\n\n Third, where the Guidelines replaced an open-ended sentencing scheme under\n\nwhich judges could impose any sentence within the statutory range, even a somewhat\n\nvague residual clause in the Guidelines provided more guidance to sentencing judges\n\nthan existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,\n\n\n 10\n By concluding that the Supreme Court might not strike the residual clause in\nthe mandatory Guidelines as void for vagueness, we do not mean to suggest the Court\nwill reach such a result.\n 11\n Mr. Pullen does not identify any case holding that an open-ended sentencing\nscheme under which a judge could impose any sentence between a properly\nannounced statutory minimum and statutory maximum failed under the Due Process\nClause and the void for vagueness doctrine.\n\n\n 24\n\f1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to\n\nsentencing only under guidelines, the limitations the Guidelines place on a judge’s\n\ndiscretion cannot violate a defendant’s right to due process by reason of being vague.\n\n. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,\n\nbecause the Supreme Court has already indicated in Beckles that a defendant received\n\nfair notice of the broad, but specified, range of penalties he faced under the statutory\n\nscheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing\n\njudge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)\n\nthan in the absence of any Guidelines, the Court might conclude that the two\n\nconcerns underlying the void for vagueness doctrine are not present in the context of\n\nthe mandatory Guidelines.\n\n\n\n\n 12\n To be sure, the Supreme Court could conclude the language of USSG\n§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process\nand void for vagueness considerations. Justice Sotomayor suggested the possibility of\nsuch a result within her concurrence in Beckles:\n\n [A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]\n creates serious risk of “arbitrary enforcement.” . . . It introduces an\n unacceptable degree of arbitrariness into sentencing proceedings to begin by\n applying a rule that is so vague that efforts to interpret it boil down to\n guesswork and intuition.”\n\n137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the\nSupreme Court has not yet answered the question. This is fatal to Mr. Pullen’s\nsuccessive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis\nwhere Mr. Pullen must identify a new rule retroactively applicable to his claim for\nrelief.\n\n 25\n\f In accord with the second and third reasons discussed above, Beckles observed\n\nthat the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:\n\nlaws that define criminal offenses and laws that fix the permissible sentences for\n\ncriminal offenses.” Id. at 892 (first and third emphases added). As to the second type\n\nof laws, “‘statutes fixing sentences’ must specify the range of available sentences\n\nwith ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at\n\n2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the\n\nmandatory Guidelines were not laws or statutes; rather, they merely operated like\n\nstatutes. Thus, while the Supreme Court might one day conclude, by relying on the\n\nactual innocence gateway,13 that the mandatory Guidelines sufficiently took the form\n\nof a law or a statute so as to expose the mandatory Guidelines to a void for vagueness\n\nchallenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s\n\nability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not\n\nyet established by the Supreme Court and, consequently, not made retroactively\n\napplicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.\n\n\n 13\n This circuit does not recognize actual innocence in the sentencing context,\nexcept in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th\nCir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”\n(internal quotation marks omitted)). But other circuits do permit such arguments, see\nCristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the\nSupreme Court has left open the question of whether a prisoner can rely on the actual\ninnocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.\n386, 393–94 (2004).\n 14\n The Court could conclude that the mandatory Guidelines, although not\nstatutes, are subject to a void for vagueness challenge and that they do not satisfy due\n\n 26\n\fPullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;\n\nRusso, 902 F.3d at 883.\n\n3. Summation\n\n Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration\n\nof the new rule from Johnson. Accordingly, the district court correctly concluded Mr.\n\nPullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing\n\na second or successive § 2255 motion. This conclusion is consistent with the rulings\n\nof six of our seven sibling circuits, which deny § 2255 relief because Johnson either\n\n(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines\n\nfor purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new\n\nrule applicable to the mandatory Sentencing Guidelines for purposes of meeting the\n\nrequirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying\n\n§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory\n\nGuidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);\n\nBrown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re\n\n\n\nprocess concerns because they permitted judges to prescribe sentencing ranges\narbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which\npermits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to\ndate, the Supreme Court has not announced a new rule retroactively applicable to the\nmandatory Guidelines. Nor, as apparent from the denials of certiorari, has the\nSupreme Court seen fit to take up the issue of Johnson’s impact on the mandatory\nGuidelines. And unless and until it does, Mr. Pullen cannot establish that his\nsuccessive § 2255 motion actually relies on a new rule for purposes of authorization\nunder § 2255(h)(2).\n\n\n 27\n\fGriffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because\n\nJohnson did not announce new rule applicable to the mandatory Guidelines).15 But\n\nsee Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent\n\ndenials of certiorari on a series of petitions seeking reversal of the aforementioned\n\ncircuit decisions. And while denials of certiorari often do not shed light on the merits\n\n\n 15\n Although the Fourth, Sixth and Eleventh Circuits reached their decisions\nbefore Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon\nRaybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,\n599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court\ndecision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,\n254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state\nof the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x\n501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not\nappear the Fourth Circuit has revisited the issue since Dimaya.\n Separately, we observe that while In re Griffin involved the denial of\nauthorization for failing to make a prima facie showing under § 2255(h)(2) and 28\nU.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),\nMr. Pullen already passed through the prima facie gate when we granted\nauthorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.\nPullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude\nMr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).\n 16\n Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72\n(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,\ninvolved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)\nthat a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines\nand not the conclusion that the second or successive § 2255 motion was actually\npremised on a new rule of constitutional law made retroactive by the Supreme Court\nfor purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80\n(“Having explained the focused yet tentative nature of the examination called for in\nevaluating a request to file a second or successive § 2255 motion, we turn next to\nMoore’s motion.”). Thus, even if other language in Moore suggests the panel of the\nFirst Circuit would have reached the same conclusion had it been conducting a\n§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent\nas to the § 2244(b)(4) question.\n\n\n 28\n\fof an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of\n\ncertiorari (1) were over a two justice dissent, which expressly states the question is\n\nopen and not likely to ever be resolved; and (2) the individual defendants are now\n\nprecluded from filing new and timely § 2255 motions based on Johnson should the\n\nSupreme Court later adopt the position advanced in their certiorari petitions.17\n\n IV. CONCLUSION\n\n We conclude Johnson did not create a new rule of constitutional law applicable to\n\nthe mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s\n\napplicability to the mandatory Guidelines remains an open question; (2) the Guidelines,\n\neven in their mandatory form, were not statutes; and (3) even a vague provision of the\n\nGuidelines provided more guidance to defendants and sentencing judges than did the\n\ncongressionally-enacted statutory minimum and maximum sentences that provided\n\ndefendants sufficient due process. Although the Supreme Court might reject all of these\n\nconsiderations and invalidate the residual clause of the mandatory Guidelines, it has not\n\nyet done so. Because Johnson did not create a new rule of constitutional law applicable to\n\n\n\n\n 17\n In concluding that, regardless of how the new rule from Johnson is phrased,\nJohnson does not create a new rule of constitutional law relative to the mandatory\nGuidelines, we find it unnecessary to decide whether Greer’s statement of the rule\nfrom Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,\nthat Johnson does not create a new rule of constitutional law applicable to the\nmandatory Guidelines, remains good law.\n\n\n 29\n\fthe mandatory Guidelines, the district court properly denied relief and dismissed Mr.\n\nPullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18\n\n\n\n\n 18\n We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion\nto file a pro se supplemental brief.\n 30\n[END_CASE]", "role": "user" } ]
4,585,526	In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee.	Rodriguez v. Fed. Deposit Ins. Corp. (In Re United W. Bancorp, Inc.)	2019-01-29	17-1281	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Seymour, Holmes", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n (D.C. No. 1:16-CV-02475-WJM)\n FEDERAL DEPOSIT INSURANCE (D. Colo.)\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n ORDER\n _________________________________\n\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\n This matter is before the court on the appellant’s Petition for Panel Rehearing and\n\nMotion for Clarification. Upon consideration, the request for panel rehearing is granted in\n\npart and to the limited extent that footnote 3 of the original Opinion will be deleted. The\n\nPetition is otherwise denied, as is the motion to clarify. A copy of the revised version is\n\fattached to this order. The clerk is directed to file the amended version of the Opinion\n\neffective the date of this order.\n\n\n Entered for the Court\n\n\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n\n 2\n\f FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n\n FEDERAL DEPOSIT INSURANCE\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:16-CV-02475-WJM)\n _________________________________\n\nMark E. Haynes (Michael M. Lane, with him on the briefs), Ireland Stapleton Pryor &\nPascoe, P.C., Denver, Colorado, appearing for Appellant.\n\nJoseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Kathryn R.\nNorcross, Senior Counsel, and Michelle Ognibene, Counsel, on the brief), Federal\nDeposit Insurance Corporation, Appellate Litigation, Arlington, Virginia, appearing for\nAppellees.\n _________________________________\n\fBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n This appeal, which arises out of a bankruptcy adversary proceeding, concerns\n\nthe ownership of a federal tax refund. The tax refund was issued by the Internal\n\nRevenue Service (IRS) to United Western Bancorp, Inc. (UWBI), a thrift holding\n\ncompany that had, under the terms of a written “Tax Allocation Agreement,” filed\n\nconsolidated returns on behalf of itself and several subsidiary corporations. The tax\n\nrefund was the result, however, of net operating losses incurred by United Western\n\nBank (the Bank), one of UWBI’s subsidiaries.\n\n Simon Rodriguez, in his capacity as the Chapter 7 Trustee for the bankruptcy\n\nestate of UWBI, initiated this adversary proceeding against the Federal Deposit\n\nInsurance Corporation (FDIC), as receiver for the Bank, alleging that the tax refund\n\nwas owned by UWBI and was thus part of the bankruptcy estate. The bankruptcy\n\ncourt agreed and entered summary judgment in favor of the Trustee. The FDIC\n\nappealed to the district court, which reversed the decision of the bankruptcy court.\n\nThe Trustee now appeals from the district court’s decision.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we agree with the\n\ndistrict court that the tax refund belongs to the FDIC, as receiver for the Bank.\n\nConsequently, we affirm the judgment of the district court and remand to the\n\nbankruptcy court for further proceedings.\n\n\n\n 2\n\f I\n\n a) UWBI and its affiliates\n\n UWBI is a Colorado corporation and a “unitary thrift [or bank] holding\n\ncompany.” Aplt. App., Vol. I at 41. UWBI owned several affiliate subsidiaries,\n\nincluding the Bank. The Bank, UWBI’s principal subsidiary, was headquartered in\n\nDenver and operated a community-based banking network that was comprised of\n\neight banking locations and a loan servicing office.\n\n b) The Tax Allocation Agreement\n\n UWBI’s affiliate subsidiaries were “members of an affiliated group . . . within\n\nthe meaning of Section 1504(a) of the Internal Revenue Code of 1986.” Id. at 41;\n\nsee 26 U.S.C. § 1504(a). Beginning in 2004 and continuing thereafter, the affiliated\n\ngroup “file[d] . . . consolidated federal income tax returns.” Aplt. App., Vol. I at 41.\n\n On January 1, 2008, UWBI and its affiliate subsidiaries entered into a Tax\n\nAllocation Agreement (the Agreement).1 The Agreement’s preamble noted that the\n\naffiliates had previously filed, and intended to continue to file, “consolidated federal\n\nincome tax return[s].” Id. The preamble further stated that “UWBI and the Affiliates\n\ndesire[d] to establish a method for (i) allocating the consolidated tax liability of the\n\nGroup among its members, (ii) reimbursing UWBI for the payment of such tax\n\nliability, and (iii) compensating each member of the Group for the use of its losses by\n\nany other member of the Group.” Id.\n\n\n 1\n Prior to 2008, UWBI and its affiliates had filed taxes under similar, but not\nidentical, written agreements. Aplt. App., Vol. I at 182.\n 3\n\f The Agreement in turn, under Section A, entitled “General Rule – Federal,”\n\noutlined how federal tax payments would be made:\n\n 1. Except as specifically set forth herein to the contrary, each\n Affiliate shall pay UWBI an amount equal to the federal income tax\n liability such Affiliate would have incurred were it to file a separate\n return (or, if appropriate, a consolidated return with its subsidiary\n affiliates). If a regulated first-tier Affiliate incurs a net operating loss or\n excess tax credits, the regulated Affiliate is entitled to a refund equal to\n the amount that it would have been entitled to receive had it not joined\n in the filing of a consolidated return with UWBI. Similar treatment is\n optional at UWBI discretion for nonregulated first-tier Affiliates. Any\n refund shall generally not exceed the amount claimed or received as a\n refund resulting from a carryback claim filed by UWBI. However, this\n shall not prevent UWBI from the ability to make a refund over the\n amount received or claimed as a refund or carryback, if in its sole\n discretion it believes such payment is in its best interest. Additionally,\n if part of [sic] all of an unused consolidated net operating loss, net\n capital loss, tax credit or similar type item is allocated to an Affiliate\n pursuant to Regulations Section 1.1502-21, and it is carried back, if\n utilized, or it is carried forward, whether or not utilized, to a year in\n which such Affiliate filed a separate income tax return or a consolidated\n federal income tax return with another group, any refund or reduction in\n tax liability arising from the carryback or carryforward shall be retained\n by such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\n 2. In essence, this Agreement requires that each first-tier\n subsidiary be treated as a separate taxpayer with UWBI merely being an\n intermediary between an Affiliate and the Internal Revenue Service\n (“IRS”).\n\nId. The Agreement also, in Section C, included “specific policies designed to cover\n\ncertain factual scenarios” including, for example, “[c]haritable contributions.” Id. at\n\n42.\n\n Section G of the Agreement stated that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent, as long as such Affiliate is a member of the UWBI group, for the\n\n\n 4\n\fpurpose of filing such consolidated Federal income tax returns for the UWBI group\n\nas UWBI may elect to file and making any election, application or taking any action\n\nin connection therewith on behalf of the Affiliates.” Id. at 44. Each affiliate also,\n\nunder Section G, “consent[ed] to the filing of any such returns and the making of any\n\nsuch elections and applications.” Id.\n\n Under Section H, entitled “Miscellaneous,” the Agreement contained a\n\nprovision regarding refunds from the IRS:\n\n In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. (quoting § H.1).\n\n Also under Section H, the Agreement stated, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45 (quoting § H.4).\n\n c) UWBI’s filing of federal tax returns on behalf of the group\n\n UWBI proceeded, in accordance with the terms of the Agreement, to file\n\nfederal income tax returns for the consolidated group. In doing so, “the tax liabilities\n\n\n\n\n 5\n\fand tax benefits” were computed “on a separate-entity basis for each Affiliate,” but\n\nUWBI ultimately filed one tax return “on a consolidated basis.” Id. at 82.\n\n For the tax year 2008, UWBI filed a federal income tax return for the affiliated\n\ngroup and reported that the Bank generated $34,397,709 in taxable income. The\n\nreturn indicated that UWBI itself did not generate taxable income in 2008.\n\n In 2010, the Bank suffered at least $35,351,690 in losses. Based upon the\n\nBank’s 2010 net operating losses, UWBI, at some point in 2011, filed on behalf of\n\nthe affiliated group a tax refund request of $4,846,625 to recover a portion of the\n\ntaxes paid by the Bank on its 2008 taxable income.2\n\n d) Appointment of the FDIC as receiver for the Bank\n\n The Bank was a federally chartered savings and loan association. On January\n\n21, 2011, the Office of Thrift Supervision (OTS) closed the Bank and appointed the\n\nFederal Deposit Insurance Corporation (FDIC) as receiver. Shortly thereafter, the\n\nFDIC notified the IRS of these events.\n\n e) UWBI’s bankruptcy proceedings\n\n Because the Bank was UWBI’s principal, if not sole, source of income, the\n\nBank’s receivership resulted in UWBI becoming insolvent. On March 2, 2012,\n\nUWBI filed a petition for Chapter 11 bankruptcy. As of that date, the tax refund\n\nrequest that UWBI filed in 2011 was still pending before the IRS.\n\n\n\n\n 2\n The Internal Revenue Code permits corporations to “carryback” net operating\nlosses for up to two taxable years. See 26 U.S.C. § 172.\n 6\n\f On August 30, 2012, the FDIC filed a proof of claim in UWBI’s bankruptcy\n\ncase in the aggregate amount of $4,847,000. The FDIC alleged that, as receiver for\n\nthe Bank, it was entitled to the federal tax refund that was due and owing from the\n\nIRS to the affiliate group because the refund stemmed exclusively from the Bank’s\n\nbusiness loss carrybacks. The FDIC also alleged that its claim covered “potential\n\nfraudulent transfers or unlawful dividends, unearned insurance premiums to the\n\nextent that the source of the premium payments was the Bank, insurance proceeds\n\npaid under applicable insurance coverage for any such losses, and other protective\n\nclaims.” Id. at 62.\n\n The bankruptcy case was converted to a Chapter 7 proceeding on April 15,\n\n2013. Rodriguez was appointed as the Chapter 7 trustee for the bankruptcy estate.\n\n f) The adversary proceeding\n\n On April 16, 2014, the Trustee initiated this adversary proceeding by filing a\n\ncomplaint against the FDIC asserting three claims: (1) a claim for declaratory relief\n\nin the form of a determination that the tax refund was the property of the debtor\n\nrather than the FDIC, (2) a claim for turnover of the tax refund, pursuant to 11 U.S.C.\n\n§ 542, to the extent the FDIC possessed the tax refund, and (3) an objection to the\n\nFDIC’s proof of claim. The bankruptcy court subsequently authorized the tax refund\n\nto be deposited into the court’s registry. On November 25, 2014, the FDIC filed a\n\ncounterclaim alleging that the FDIC, as the receiver for and successor to the Bank,\n\nowned the tax refund.\n\n\n\n 7\n\f On October 30, 2015, the parties filed cross motions for summary judgment.\n\nThe FDIC argued that there was “no provision in the . . . Agreement that transfers\n\nownership of the Bank-generated tax refunds to [UWBI], indicates that the Bank\n\nintended to transfer beneficial ownership of the tax refunds to [UWBI], or otherwise\n\nalters the widely recognized default rule regarding ownership of tax refunds by the\n\nentity in a consolidated tax group that generated those tax refunds.” Aplt. App., Vol.\n\nI at 78. The FDIC also argued that “[e]ven if the anticipated tax refund is paid to\n\n[UWBI], [UWBI] acts as agent for the Affiliated Group and, therefore, would only\n\nhold bare legal title in the tax refund.” Id. The Trustee argued, in contrast, that the\n\nAgreement “establishe[d] a debtor-creditor relationship between [UWBI] and the\n\nBank with respect to any tax refunds” and that “[i]f and when the Refund [wa]s paid\n\nto UWBI the funds w[ould] therefore become property of the [bankruptcy] Estate and\n\n[the FDIC] w[ould] have an unsecured, nonpriority claim for its pro rata share.” Id.\n\nat 178.\n\n In 2015, the IRS, after completing an audit, issued a refund in the amount of\n\n$4,081,334.67.\n\n On September 16, 2016, the bankruptcy court issued an opinion and order\n\ngranting summary judgment in favor of the Trustee and denying the FDIC’s motion\n\nfor summary judgment. In doing so, the bankruptcy court began by noting that 11\n\nU.S.C. § 541 outlines the creation of a bankruptcy estate and provides, in pertinent\n\npart, that the estate includes “‘all legal or equitable interests of the debtor in property\n\nas of the commencement of the case . . . wherever located and by whomever held.’”\n\n 8\n\fAplt. App., Vol. II at 382 (quoting § 541(a)). The bankruptcy court also noted that\n\n“[a] long line of bankruptcy cases (even pre-dating the modern Bankruptcy Code)\n\ndictate that if a debtor owns or is entitled to a federal loss carryback tax refund, such\n\nrefund generally becomes property of the debtor’s bankruptcy estate.” Id. at 383.\n\n The bankruptcy court concluded that the Agreement, “the Internal Revenue\n\nCode, and the IRS regulations all dictate that [UWBI], as the bank holding company\n\nfor the Affiliated Group has at least bare legal title to the Tax Refund.” Id. at 386\n\n(emphasis in original). “After all,” the bankruptcy court noted, “26 C.F.R. § 1.1502-\n\n77(d)(5) requires that the Tax Refund be made ‘directly to and in the name of’\n\n[UWBI].” Id.\n\n The bankruptcy court in turn concluded that the FDIC failed to establish that\n\nthe Bank had equitable ownership of the Tax Refund. In support of this conclusion,\n\nthe bankruptcy court noted that “neither the Internal Revenue Code nor the IRS\n\nregulations establish which entity, [UWBI] or the Bank, has equitable or beneficial\n\nownership of the Tax Refund.” Id.\n\n The bankruptcy court also determined that the Agreement created a debtor-\n\ncreditor relationship between UWBI and the Bank with respect to the tax refund. In\n\nparticular, the bankruptcy court concluded that the Agreement (a) “created fungible\n\npayment obligations through an intercompany account of payments and\n\nreimbursements” that indicated “the parties were creating a debtor-creditor\n\nrelationship,” (b) contains no escrow, segregation, or use restrictions regarding what\n\nUWBI can or cannot do when it receives a tax refund from the IRS, and (c) delegates\n\n 9\n\fdecision-making on tax matters to UWBI. Id. at 390. Consequently, the bankruptcy\n\ncourt concluded that UWBI was “the beneficial owner of the Tax Refunds,” and thus\n\nthe Tax Refund “belong[ed] to the Trustee (as Trustee of the [UWBI] bankruptcy\n\nestate).” Id.\n\n Based upon these conclusions, the bankruptcy court determined “that the\n\nTrustee [wa]s entitled to the Tax Refund.” Id. at 400. The bankruptcy court\n\nemphasized that this “d[id] not leave the FDIC without a remedy” because it was\n\n“still a general unsecured creditor of the [UWBI] bankruptcy estate and [could] share\n\npari passu with any other allowed general unsecured claims.” Id. at 400-01.\n\n The bankruptcy court entered judgment in the adversary proceeding on\n\nSeptember 16, 2016.\n\n g) The district court’s decision\n\n The FDIC appealed and, on July 10, 2017, the district court issued an order\n\nreversing the judgment of the bankruptcy court. The district court concluded, in\n\npertinent part, that the Agreement was “ambiguous regarding whether [UWBI] may\n\nkeep the tax refund in the present circumstances” and “that any ambiguity [should] be\n\nconstrued in favor of the Bank.” Aplt. App., Vol. III at 529. The district court noted\n\nthat the plain language of Section A.2 of the Agreement “declare[d] that the purpose\n\nof the [Agreement] is to set up an arrangement in which [UWBI] acts as nothing\n\nmore than a go-between, as between the subsidiaries and the IRS.” Id. at 552. The\n\ndistrict court also concluded that Section H.4 of the Agreement required it to construe\n\nany ambiguities in favor of the Bank and that, consequently, it was required to\n\n 10\n\finterpret the Agreement as requiring UWBI “to act as agent on behalf of the Bank in\n\nobtaining and remitting the refund.” Id. at 559. Accordingly, the district court\n\nconcluded that UWBI “held no more than legal title to the Refund, while the Bank\n\nheld equitable title,” and thus “[t]he Refund [wa]s not part of [UWBI’s] bankruptcy\n\nestate.” Id. at 560.\n\n The Trustee now appeals from the district court’s decision.\n\n II\n\n The Trustee’s arguments on appeal\n\n The Trustee argues that under “[t]he plain language” of the Agreement,\n\n“UWBI holds equitable title to the Tax Refund, and thus . . . the Refund is property\n\nof the UWBI estate.” Aplt. Br. at 12. In support, the Trustee asserts that the\n\nAgreement “imposes two reciprocal obligations.” Id. He contends that “[i]t requires\n\neach affiliate to pay to UWBI funds equal to the amount the affiliate would have been\n\nliable to pay the IRS had the affiliate filed an individual . . . tax return,” and it in turn\n\n“obliges UWBI to pay each affiliate funds equal to the amount of the refund to which\n\nthat affiliate would have been entitled had it filed a separate tax return.” Id. at 12-13.\n\nFurther, the Trustee argues that “[n]othing in the [Agreement] grants [the Bank] any\n\ninterest in any IRS tax refund actually received by UWBI.” Id. at 13. In short, the\n\nTrustee argues, the Agreement “creates a debtor-creditor relationship, and the Bank\n\nholds only an unsecured claim against the UWBI estate in the amount of funds the\n\nBank would have received had it filed a separate tax return.” Id. at 14.\n\n\n\n 11\n\f Standard of review\n\n “When hearing an appeal from a district court’s review of a bankruptcy-court\n\norder, ‘we independently review the bankruptcy court’s decision, applying the same\n\nstandard as the . . . district court.’” In re Peeples, 880 F.3d 1207, 1212 (10th Cir.\n\n2018) (quoting In re C.W. Min. Co., 798 F.3d 983, 986 (10th Cir. 2015)). “We\n\nreview bankruptcy-court orders granting summary judgment in adversarial\n\nproceedings de novo, and affirm if ‘there is no genuine dispute as to any material fact\n\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.\n\nP. 56(a)).\n\n The scope of UWBI’s bankruptcy estate\n\n It is well established that “[f]iling for Chapter 11 [or Chapter 7] bankruptcy\n\nhas several relevant legal consequences,” the most important of which, for purposes\n\nof this appeal, is that “an estate is created comprising all property of the debtor.”\n\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017) (citing 11 U.S.C.\n\n§ 541(a)(1)). This includes “all legal or equitable interests of the debtor in property\n\nas of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). The\n\nestate does not include, however, “[p]roperty in which the debtor holds, as of the\n\ncommencement of the [bankruptcy] case, only legal title and not an equitable interest\n\n. . . .” 11 U.S.C. § 541(d). Thus, in order for the tax refund to be considered part of\n\nUWBI’s estate, UWBI must hold both legal and equitable title to the tax refund.\n\n\n\n\n 12\n\f The analytical framework for resolving ownership of the tax refund\n\n Section 1501 of the Internal Revenue Code (the Code) authorizes an “affiliated\n\ngroup” of corporations to “mak[e] a consolidated return with respect to income tax\n\n. . . .” 26 U.S.C. § 1501. The Code defines the term “affiliated group” to mean, in\n\npertinent part, “1 or more chains of includible corporations connected through stock\n\nownership with a common parent corporation which is an includible corporation\n\n. . . .” 26 U.S.C. § 1504(a)(1)(A). The Code does not, however, specify what\n\nhappens when an affiliated group that has filed a consolidated federal tax return\n\nreceives a tax refund. More specifically, the Code is silent with respect to the legal\n\nand equitable ownership of such a tax refund.\n\n Federal common law, however, provides a framework for resolving this issue.\n\nThe general rule in this circuit, as outlined in Barnes v. Harris, 783 F.3d 1185, 1195\n\n(10th Cir. 2015), is that “a tax refund due from a joint return generally belongs to the\n\ncompany responsible for the losses that form the basis of the refund.” In adopting\n\nthis principle, Barnes cited to and effectively adopted the Ninth Circuit’s decision in\n\nIn re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.\n\n1973).3\n\n\n\n\n 3\n In Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757 F.3d 530 (6th Cir.\n2014), the Sixth Circuit declined to adopt the Bob Richards rule on the grounds that\nit “is a creature of federal common law” and that “federal common law constitutes an\nunusual exercise of lawmaking which should be indulged only in a few restricted\ninstances.” Id. at 535. Whether or not this is a valid criticism, we are bound by the\ndecision in Barnes.\n 13\n\f Bob Richards involved facts somewhat similar, but not identical, to those at\n\nissue here. Western Dealer Management, Inc. (WDM) was a parent corporation that\n\nwholly owned two subsidiary corporations, one of which was Bob Richards Chrysler-\n\nPlymouth Corporation, Inc. (Bob Richards). In October 1965, Bob Richards filed a\n\npetition in bankruptcy. While that bankruptcy proceeding was pending, WDM filed\n\nconsolidated federal income tax returns on behalf of itself and its two subsidiaries for\n\nthe tax years 1965 and 1966. Notably, “[t]he return for 1966 showed that the\n\nconsolidated group was entitled to a refund of taxes” in the amount of $10,063.25\n\nand “[t]he entire refund . . . was due to the earnings history of” Bob Richards. Id. at\n\n263. The bankruptcy trustee claimed that the refund belonged to the bankruptcy\n\nestate, but WDM claimed a right to the entire tax refund “as a set-off” of a “$45,000\n\nunsecured obligation of” Bob Richards. Id.\n\n The Ninth Circuit concluded that “[t]he Trustee, not WDM, [wa]s entitled to\n\nthe refund.” Id. at 264. In reaching this conclusion, the Ninth Circuit first “note[d]\n\nthat at the date of the filing of the petition in bankruptcy, the Trustee acquired any\n\ninterest [Bob Richards] had in the carryback tax refund.” Id. The Ninth Circuit in\n\nturn noted there was “no evidence that [Bob Richards] or the Trustee at any time\n\nvoluntarily assigned its rights in the refund to WDM.” Id. Although the Ninth\n\nCircuit acknowledged that Bob Richards “consented to the filing of a consolidated\n\ntax return,” it noted that “such consent [could not] be construed to include the\n\ntransfer of a valuable asset without further consideration.” Id.\n\n\n\n 14\n\f Relatedly, the Ninth Circuit noted “that there is nothing in the [Internal\n\nRevenue] Code or Regulations that compels the conclusion that a tax saving must or\n\nshould inure to the benefit of the parent company or of the company which has\n\nsustained the loss that makes possible the tax saving.” Id. (quotations and brackets\n\nomitted). Thus, the Ninth Circuit noted, the normal rule is that “where there is an\n\nexplicit agreement, or where an agreement can fairly be implied, as a matter of state\n\ncorporation law the parties are free to adjust among themselves the ultimate tax\n\nliability.” Id. In the case before it, however, “the parties made no agreement\n\nconcerning the ultimate disposition of the tax refund.” Id. at 265.\n\n All of which led the Ninth Circuit to adopt what has since become known as\n\n“the Bob Richards rule”:\n\n Absent any differing agreement we feel that a tax refund resulting solely\n from offsetting the losses of one member of a consolidated filing group\n against the income of that same member in a prior or subsequent year\n should inure to the benefit of that member. Allowing the parent to keep\n any refunds arising solely from a subsidiary’s losses simply because the\n parent and subsidiary chose a procedural device to facilitate their\n income tax reporting unjustly enriches the parent.\n\nId.\n\n Applying these principles to the facts before it, the Ninth Circuit emphasized\n\nthat “WDM received the tax refund from the government only in its capacity as agent\n\nfor the consolidated group.” Id. And because “there [wa]s no express or implied\n\nagreement that the agent had any right to keep the refund,” it concluded “that WDM\n\nwas acting as a trustee of a specific trust and was under a duty to return the tax\n\nrefund to the estate of the bankrupt.” Id.\n\n 15\n\f The Trustee argues that Barnes and Bob Richards are inapplicable here\n\nbecause of the existence of the Agreement. But the Trustee is only partially correct.\n\nBarnes, which adopted Bob Richards, clearly applies to this case and outlines the\n\ngeneral framework that we must apply in resolving the parties’ dispute. The Trustee\n\nis correct, however, that this case differs from Barnes and Bob Richards because\n\nthere was a written agreement in place—the Agreement—that discussed the filing of\n\na consolidated federal tax return. Consequently, as directed by Barnes and Bob\n\nRichards, we must look to the terms of the Agreement and, taking into account\n\nColorado case law, decide whether it unambiguously addresses how tax refunds are\n\nto be handled and, if so, whether it purports to deviate from the general rule outlined\n\nin Barnes and Bob Richards. See generally Barnhill v. Johnson, 503 U.S. 393, 398\n\n(1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in\n\nproperty’ are creatures of state law.” (quotations omitted)).\n\n What does the Agreement say about tax refunds?\n\n As we shall explain, the written terms of the Agreement are, at best,\n\nambiguous regarding the nature of the relationship that UWBI and the Bank intended\n\nto create with one another. Specifically, certain of its provisions suggest the\n\nexistence of an agency relationship, while other provisions suggest the intent to\n\ncreate something other than an agency relationship.\n\n As noted, Section A.1 of the Agreement, which is contained under the heading\n\n“General Rule – Federal,” provides, in pertinent part:\n\n\n\n 16\n\f If a regulated first-tier Affiliate incurs a net operating loss or excess tax\n credits, the regulated Affiliate is entitled to a refund equal to the amount\n that it would have been entitled to receive had it not joined in the filing\n of a consolidated return with UWBI. Similar treatment is optional at\n UWBI discretion for nonregulated first-tier Affiliates. Any refund shall\n generally not exceed the amount claimed or received as a refund\n resulting from a carryback claim filed by UWBI. However, this shall\n not prevent UWBI from the ability to make a refund over the amount\n received or claimed as a refund or carryback, if in its sole discretion it\n believes such payment is in its best interest. Additionally, if part of\n [sic] all of an unused consolidated net operating loss, net capital loss,\n tax credit or similar type item is allocated to an Affiliate pursuant to\n Regulations Section 1.1502-21, and it is carried back, if utilized, or it is\n carried forward, whether or not utilized, to a year in which such\n Affiliate filed a separate income tax return or a consolidated federal\n income tax return with another group, any refund or reduction in tax\n liability arising from the carryback or carryforward shall be retained by\n such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\nAplt. App., Vol. I at 41.\n\n The first of these sentences—stating that “[i]f a regulated first-tier Affiliate,”\n\ni.e., the Bank, “incurs a net operating loss or excess tax credits, the regulated\n\nAffiliate is entitled to a refund equal to the amount that it would have been entitled to\n\nreceive had it not joined in the filing of a consolidated return with USBI”—is\n\narguably ambiguous. On the one hand, it purports to “entitle[]” the regulated affiliate\n\n“to a refund equal to the amount that it would have received had it not joined in the\n\nfiling of a consolidated return.” On the other hand, when contrasted with the last\n\nsentence, it does not give the Bank the right to “retain” the refund. Instead, under the\n\nfirst sentence, a refund received by UWBI as a result of a net operating loss incurred\n\nby the Bank is taken into account by the parties in calculating their year-end\n\nliabilities to each other.\n\n 17\n\f The second and third sentences of Section A.1 afford UWBI with two types of\n\ndiscretion: (1) whether to pay any refund at all to a nonregulated affiliate; and (2)\n\nwhen it pays a refund to any affiliate, whether to pay an amount equivalent to the\n\namount the affiliate would have received had it filed its own income tax return, or\n\ninstead to pay a greater amount. These sentences thus arguably point toward\n\nsomething more than a mere agency relationship.\n\n The last sentence of Section A.1 indicates that if a net operating loss of any\n\naffiliate is carried back to a year when that affiliate was filing a separate income tax\n\nreturn (or filing a consolidated return with another group), then “any refund . . . shall\n\nbe retained by such Affiliate and such item will not enter into the calculation of\n\nliability to or from UWBI.” This arguably suggests that, in all other situations, an\n\naffiliate does not “retain” a tax refund and, instead, refunds are taken into\n\nconsideration during the annual reconciliation of liability between the parties.\n\n Section A.2 of the Agreement, which is also contained under the heading\n\n“General Rule – Federal,” states: “In essence, this Agreement requires that each first-\n\ntier subsidiary be treated as a separate taxpayer with UWBI merely being an\n\nintermediary between an Affiliate and the Internal Revenue Service . . . .” Id.\n\nAlthough the term “intermediary” is not expressly defined in the Agreement, it is\n\ncommonly understood to mean “[a] mediator or go-between.” Intermediary, Black’s\n\nLaw Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1, Section\n\nA.2 clearly points to the existence of an agency relationship between UWBI and its\n\n\n\n 18\n\faffiliates, rather than a debtor/creditor relationship. In other words, it suggests that\n\nUWBI will simply act as a conduit through which the refund will pass.\n\n Section F of the Agreement, entitled “Tax Settlement Payments – Federal and\n\nState,” states, in pertinent part, that affiliates are to make “[e]stimated payments of\n\nFederal . . . taxes” to UWBI on a specified quarterly basis (April 15, June 15,\n\nSeptember 15, and December 15). Id. at 44. Those estimated payments are to be in\n\n“an amount equal to the amount of any estimated federal income taxes which the\n\nAffiliate would have been required to pay on or before such dates if the Affiliate had\n\nfiled its own separate income tax return for such taxable period.” Id. “Payments [by\n\nUWBI] to an Affiliate for net operating losses or similar items shall not be made\n\nunder this provision, but rather on an annual basis pursuant to Section A” of the\n\nAgreement. Id.\n\n In turn, Section E of the Agreement, entitled “Tax Settlement Payments –\n\nFederal,” provides in pertinent part:\n\n 1. Preliminary tax settlement payments are due on or before March 15\n following the end of the appropriate taxable year. Although\n overpayments of estimated taxes made by Affiliates are not refunded\n until final tax settlement is done, an Affiliate with a taxable loss for the\n year may recover estimated taxes paid for that year before final\n settlement if an “expedited refund” claim is filed with UWBI by\n February 15 following the end of the tax year.\n\n 2. Each first-tier Affiliate shall compute its final tax settlement liability\n based on the amounts included for that Affiliate (and its subsidiaries, if\n applicable) in the consolidated federal income tax return filed. A copy\n of such computation will be prepared by October 31, and any\n differences will be resolved. Final tax settlement payments or refunds\n are due on or before November 15.\n\n\n 19\n\fId. at 43-44.\n\n Considered together, Sections E and F obligate affiliates to make quarterly\n\nestimated tax payments to UWBI during the course of a taxable year, preliminary tax\n\nsettlement payments to UWBI on or before March 15th following the end of the\n\ntaxable year, and final tax settlement payments, if necessary, to UWBI on or before\n\nNovember 15th following the end of the taxable year. In turn, Section E, when\n\nconsidered together with Section A, obligates UWBI to (1) refund to its affiliates, by\n\nNovember 15th following the end of the taxable year, any overpayments of estimated\n\ntaxes, (2) expedite any such refund if an affiliate has a taxable loss for the year in\n\nquestion and the affiliate files with UWBI an expedited refund claim by February\n\n15th following the end of the taxable year, and (3) ensure that, when a regulated first-\n\ntier affiliate incurs a net operating loss or excess tax credits, any such refunds paid to\n\nthat affiliate are equal to or greater than the amount that such affiliate would have\n\nbeen entitled to receive had it not joined in the filing of the consolidated tax return.\n\n Section G of the Agreement states that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent . . . for the purpose of filing such consolidated Federal income tax\n\nreturns for the UWBI group as UWBI may elect to file and making any election,\n\napplication, or taking any action in connection therewith on behalf of the Affiliates.”\n\nId. at 44.\n\n Lastly, Section H of the Agreement, entitled “Miscellaneous,” contains two\n\nrelevant paragraphs. Section H.1 states:\n\n\n\n 20\n\f In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. Further, Subsection H.4 states, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45.\n\n Considered in its entirety, it is apparent that the Agreement was intended to\n\nauthorize the filing of a consolidated tax return and, in turn, to create a series of\n\npayment obligations between UWBI and its affiliates—including the Bank—in order\n\nto carry out the goal of filing a consolidated tax return. Affiliates are obligated, by\n\nway of both estimated and final tax payments, to pay UWBI the precise amount of\n\ntheir federal income tax obligations. UWBI, in turn, is obligated to refund to its\n\naffiliates any overpayments of estimated taxes. When an affiliate incurs a taxable\n\nloss due to net operating losses or excess tax credits, UWBI’s obligations depend\n\nupon the nature of the affiliate. If the affiliate is a regulated, first-tier affiliate such\n\nas the Bank, then UWBI is obligated to pay that affiliate “a refund equal to” or\n\ngreater than “the amount that it would have been entitled to receive had it not joined\n\nin the filing of a consolidated return with UWBI.” Id. at 41 (§ A.1 of the\n\n\n 21\n\fAgreement). For “nonregulated first-tier Affiliates,” UWBI has the discretion to\n\ndecide whether or not to treat them similarly to regulated first-tier affiliates in terms\n\nof tax refunds. Id.\n\n Critically, however, the Agreement is, on its face, ambiguous with respect to\n\nthe type of relationship it intends to create between UWBI and regulated, first-tier\n\naffiliates, such as the Bank, regarding the ownership of refunds from the IRS. 4 See\n\nPinnacol Assurance v. Hoff, 375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract\n\nis ambiguous if it is reasonably susceptible of more than one meaning); id. (“Whether\n\na written contract is ambiguous is a question of law that we review de novo.”). On\n\nthe one hand, portions of the Agreement quite clearly indicate the intent to create an\n\nagency relationship between UWBI and its regulated, first-tier affiliates. For\n\nexample, Section A.2 states that “each first-tier subsidiary [is to] be treated as a\n\nseparate taxpayer with UWBI merely being an intermediary between an Affiliate and\n\nthe” IRS. Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being\n\nappointed by each affiliate to act as its agent for purposes of filing the consolidated\n\ntax return and taking any action in connection therewith. On the other hand, portions\n\nof the Agreement arguably suggest the intent for UWBI to retain tax refunds before\n\nforwarding them on to regulated, first-tier affiliates. For example, parts of Section\n\n\n 4\n Rodriguez argues the FDIC has waived any argument that the Agreement is\nambiguous. We reject that argument. The FDIC has consistently argued the\nAgreement creates an agency relationship, rather than a debtor/creditor relationship.\nThe FDIC has also consistently argued that any ambiguity in the Agreement must be\nresolved in the Bank’s favor. Aplt. App., Vol. I at 89, 237; Vol. III at 423, 434, 452,\n453, 500, 520-21.\n 22\n\fA.1 imply that UWBI will retain tax refunds and then later take them into account\n\nduring the annual settlement process. In addition, the fact that Section A.1 affords\n\nUWBI with discretion regarding the amount to refund a regulated, first-tier affiliate\n\n(i.e, the exact amount of the refund or a greater amount) seems to suggest something\n\nother than an agency relationship. Finally, the ambiguity of the Agreement on this\n\nissue is compounded by the fact that it contains no language requiring UWBI to\n\nutilize a trust or escrow for tax refunds—which would suggest the existence of an\n\nagency or trust relationship—nor does it contain provisions for interest and\n\ncollateral—which would be indicative of a debtor-creditor relationship. See In re\n\nNetBank, Inc., 729 F.3d 1344, 1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v.\n\nAmFin Fin. Corp., 757 F.3d 530, 535 (6th Cir. 2014).\n\n Resolving the Agreement’s ambiguity\n\n Notably, the Agreement itself provides a method for resolving the ambiguity.\n\nSection H.4 of the Agreement states that “[a]ny ambiguity in the interpretation hereof\n\nshall be resolved, with a view to effectuating such intent [i.e., to provide an equitable\n\nallocation of the tax liability of the Group among UWBI and the Affiliates], in favor\n\nof any insured depository institution.” Aplt. App., Vol. I at 45. Quite clearly,\n\nconstruing the Agreement to create an agency relationship between UWBI and the\n\nBank with respect to federal tax refunds—and thereby affording ownership of the tax\n\nrefund to the Bank—is more favorable to the Bank than construing the Agreement to\n\ncreate a debtor/creditor relationship and thus affording ownership of federal tax\n\nrefunds to UWBI. We therefore conclude that the ambiguity in the Agreement must\n\n 23\n\fbe construed in favor of the Bank and the FDIC, and that, consequently, the\n\nAgreement must be read as creating only an agency relationship between UWBI and\n\nthe Bank.\n\n Conclusion\n\n In sum, we conclude that the Agreement creates an agency relationship\n\nbetween UWBI and the Bank and that, consequently, the Agreement’s intended\n\ntreatment of tax refunds does not differ from the general rule outlined in Barnes and\n\nBob Richards. Therefore, we conclude that the tax refund at issue belongs to the\n\nBank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment\n\nin its favor.\n\n III\n\n We AFFIRM the judgment of the district court and REMAND to the\n\nbankruptcy court for further proceedings consistent with this opinion.\n\n\n\n\n 24", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362779/", "author_raw": "BRISCOE, Circuit Judge."}]}	BRISCOE	SEYMOUR	HOLMES	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4585526/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n (D.C. No. 1:16-CV-02475-WJM)\n FEDERAL DEPOSIT INSURANCE (D. Colo.)\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n ORDER\n _________________________________\n\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\n This matter is before the court on the appellant’s Petition for Panel Rehearing and\n\nMotion for Clarification. Upon consideration, the request for panel rehearing is granted in\n\npart and to the limited extent that footnote 3 of the original Opinion will be deleted. The\n\nPetition is otherwise denied, as is the motion to clarify. A copy of the revised version is\n\fattached to this order. The clerk is directed to file the amended version of the Opinion\n\neffective the date of this order.\n\n\n Entered for the Court\n\n\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n\n 2\n\f FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n\n FEDERAL DEPOSIT INSURANCE\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:16-CV-02475-WJM)\n _________________________________\n\nMark E. Haynes (Michael M. Lane, with him on the briefs), Ireland Stapleton Pryor &\nPascoe, P.C., Denver, Colorado, appearing for Appellant.\n\nJoseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Kathryn R.\nNorcross, Senior Counsel, and Michelle Ognibene, Counsel, on the brief), Federal\nDeposit Insurance Corporation, Appellate Litigation, Arlington, Virginia, appearing for\nAppellees.\n _________________________________\n\fBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n This appeal, which arises out of a bankruptcy adversary proceeding, concerns\n\nthe ownership of a federal tax refund. The tax refund was issued by the Internal\n\nRevenue Service (IRS) to United Western Bancorp, Inc. (UWBI), a thrift holding\n\ncompany that had, under the terms of a written “Tax Allocation Agreement,” filed\n\nconsolidated returns on behalf of itself and several subsidiary corporations. The tax\n\nrefund was the result, however, of net operating losses incurred by United Western\n\nBank (the Bank), one of UWBI’s subsidiaries.\n\n Simon Rodriguez, in his capacity as the Chapter 7 Trustee for the bankruptcy\n\nestate of UWBI, initiated this adversary proceeding against the Federal Deposit\n\nInsurance Corporation (FDIC), as receiver for the Bank, alleging that the tax refund\n\nwas owned by UWBI and was thus part of the bankruptcy estate. The bankruptcy\n\ncourt agreed and entered summary judgment in favor of the Trustee. The FDIC\n\nappealed to the district court, which reversed the decision of the bankruptcy court.\n\nThe Trustee now appeals from the district court’s decision.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we agree with the\n\ndistrict court that the tax refund belongs to the FDIC, as receiver for the Bank.\n\nConsequently, we affirm the judgment of the district court and remand to the\n\nbankruptcy court for further proceedings.\n\n\n\n 2\n\f I\n\n a) UWBI and its affiliates\n\n UWBI is a Colorado corporation and a “unitary thrift [or bank] holding\n\ncompany.” Aplt. App., Vol. I at 41. UWBI owned several affiliate subsidiaries,\n\nincluding the Bank. The Bank, UWBI’s principal subsidiary, was headquartered in\n\nDenver and operated a community-based banking network that was comprised of\n\neight banking locations and a loan servicing office.\n\n b) The Tax Allocation Agreement\n\n UWBI’s affiliate subsidiaries were “members of an affiliated group . . . within\n\nthe meaning of Section 1504(a) of the Internal Revenue Code of 1986.” Id. at 41;\n\nsee 26 U.S.C. § 1504(a). Beginning in 2004 and continuing thereafter, the affiliated\n\ngroup “file[d] . . . consolidated federal income tax returns.” Aplt. App., Vol. I at 41.\n\n On January 1, 2008, UWBI and its affiliate subsidiaries entered into a Tax\n\nAllocation Agreement (the Agreement).1 The Agreement’s preamble noted that the\n\naffiliates had previously filed, and intended to continue to file, “consolidated federal\n\nincome tax return[s].” Id. The preamble further stated that “UWBI and the Affiliates\n\ndesire[d] to establish a method for (i) allocating the consolidated tax liability of the\n\nGroup among its members, (ii) reimbursing UWBI for the payment of such tax\n\nliability, and (iii) compensating each member of the Group for the use of its losses by\n\nany other member of the Group.” Id.\n\n\n 1\n Prior to 2008, UWBI and its affiliates had filed taxes under similar, but not\nidentical, written agreements. Aplt. App., Vol. I at 182.\n 3\n\f The Agreement in turn, under Section A, entitled “General Rule – Federal,”\n\noutlined how federal tax payments would be made:\n\n 1. Except as specifically set forth herein to the contrary, each\n Affiliate shall pay UWBI an amount equal to the federal income tax\n liability such Affiliate would have incurred were it to file a separate\n return (or, if appropriate, a consolidated return with its subsidiary\n affiliates). If a regulated first-tier Affiliate incurs a net operating loss or\n excess tax credits, the regulated Affiliate is entitled to a refund equal to\n the amount that it would have been entitled to receive had it not joined\n in the filing of a consolidated return with UWBI. Similar treatment is\n optional at UWBI discretion for nonregulated first-tier Affiliates. Any\n refund shall generally not exceed the amount claimed or received as a\n refund resulting from a carryback claim filed by UWBI. However, this\n shall not prevent UWBI from the ability to make a refund over the\n amount received or claimed as a refund or carryback, if in its sole\n discretion it believes such payment is in its best interest. Additionally,\n if part of [sic] all of an unused consolidated net operating loss, net\n capital loss, tax credit or similar type item is allocated to an Affiliate\n pursuant to Regulations Section 1.1502-21, and it is carried back, if\n utilized, or it is carried forward, whether or not utilized, to a year in\n which such Affiliate filed a separate income tax return or a consolidated\n federal income tax return with another group, any refund or reduction in\n tax liability arising from the carryback or carryforward shall be retained\n by such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\n 2. In essence, this Agreement requires that each first-tier\n subsidiary be treated as a separate taxpayer with UWBI merely being an\n intermediary between an Affiliate and the Internal Revenue Service\n (“IRS”).\n\nId. The Agreement also, in Section C, included “specific policies designed to cover\n\ncertain factual scenarios” including, for example, “[c]haritable contributions.” Id. at\n\n42.\n\n Section G of the Agreement stated that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent, as long as such Affiliate is a member of the UWBI group, for the\n\n\n 4\n\fpurpose of filing such consolidated Federal income tax returns for the UWBI group\n\nas UWBI may elect to file and making any election, application or taking any action\n\nin connection therewith on behalf of the Affiliates.” Id. at 44. Each affiliate also,\n\nunder Section G, “consent[ed] to the filing of any such returns and the making of any\n\nsuch elections and applications.” Id.\n\n Under Section H, entitled “Miscellaneous,” the Agreement contained a\n\nprovision regarding refunds from the IRS:\n\n In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. (quoting § H.1).\n\n Also under Section H, the Agreement stated, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45 (quoting § H.4).\n\n c) UWBI’s filing of federal tax returns on behalf of the group\n\n UWBI proceeded, in accordance with the terms of the Agreement, to file\n\nfederal income tax returns for the consolidated group. In doing so, “the tax liabilities\n\n\n\n\n 5\n\fand tax benefits” were computed “on a separate-entity basis for each Affiliate,” but\n\nUWBI ultimately filed one tax return “on a consolidated basis.” Id. at 82.\n\n For the tax year 2008, UWBI filed a federal income tax return for the affiliated\n\ngroup and reported that the Bank generated $34,397,709 in taxable income. The\n\nreturn indicated that UWBI itself did not generate taxable income in 2008.\n\n In 2010, the Bank suffered at least $35,351,690 in losses. Based upon the\n\nBank’s 2010 net operating losses, UWBI, at some point in 2011, filed on behalf of\n\nthe affiliated group a tax refund request of $4,846,625 to recover a portion of the\n\ntaxes paid by the Bank on its 2008 taxable income.2\n\n d) Appointment of the FDIC as receiver for the Bank\n\n The Bank was a federally chartered savings and loan association. On January\n\n21, 2011, the Office of Thrift Supervision (OTS) closed the Bank and appointed the\n\nFederal Deposit Insurance Corporation (FDIC) as receiver. Shortly thereafter, the\n\nFDIC notified the IRS of these events.\n\n e) UWBI’s bankruptcy proceedings\n\n Because the Bank was UWBI’s principal, if not sole, source of income, the\n\nBank’s receivership resulted in UWBI becoming insolvent. On March 2, 2012,\n\nUWBI filed a petition for Chapter 11 bankruptcy. As of that date, the tax refund\n\nrequest that UWBI filed in 2011 was still pending before the IRS.\n\n\n\n\n 2\n The Internal Revenue Code permits corporations to “carryback” net operating\nlosses for up to two taxable years. See 26 U.S.C. § 172.\n 6\n\f On August 30, 2012, the FDIC filed a proof of claim in UWBI’s bankruptcy\n\ncase in the aggregate amount of $4,847,000. The FDIC alleged that, as receiver for\n\nthe Bank, it was entitled to the federal tax refund that was due and owing from the\n\nIRS to the affiliate group because the refund stemmed exclusively from the Bank’s\n\nbusiness loss carrybacks. The FDIC also alleged that its claim covered “potential\n\nfraudulent transfers or unlawful dividends, unearned insurance premiums to the\n\nextent that the source of the premium payments was the Bank, insurance proceeds\n\npaid under applicable insurance coverage for any such losses, and other protective\n\nclaims.” Id. at 62.\n\n The bankruptcy case was converted to a Chapter 7 proceeding on April 15,\n\n2013. Rodriguez was appointed as the Chapter 7 trustee for the bankruptcy estate.\n\n f) The adversary proceeding\n\n On April 16, 2014, the Trustee initiated this adversary proceeding by filing a\n\ncomplaint against the FDIC asserting three claims: (1) a claim for declaratory relief\n\nin the form of a determination that the tax refund was the property of the debtor\n\nrather than the FDIC, (2) a claim for turnover of the tax refund, pursuant to 11 U.S.C.\n\n§ 542, to the extent the FDIC possessed the tax refund, and (3) an objection to the\n\nFDIC’s proof of claim. The bankruptcy court subsequently authorized the tax refund\n\nto be deposited into the court’s registry. On November 25, 2014, the FDIC filed a\n\ncounterclaim alleging that the FDIC, as the receiver for and successor to the Bank,\n\nowned the tax refund.\n\n\n\n 7\n\f On October 30, 2015, the parties filed cross motions for summary judgment.\n\nThe FDIC argued that there was “no provision in the . . . Agreement that transfers\n\nownership of the Bank-generated tax refunds to [UWBI], indicates that the Bank\n\nintended to transfer beneficial ownership of the tax refunds to [UWBI], or otherwise\n\nalters the widely recognized default rule regarding ownership of tax refunds by the\n\nentity in a consolidated tax group that generated those tax refunds.” Aplt. App., Vol.\n\nI at 78. The FDIC also argued that “[e]ven if the anticipated tax refund is paid to\n\n[UWBI], [UWBI] acts as agent for the Affiliated Group and, therefore, would only\n\nhold bare legal title in the tax refund.” Id. The Trustee argued, in contrast, that the\n\nAgreement “establishe[d] a debtor-creditor relationship between [UWBI] and the\n\nBank with respect to any tax refunds” and that “[i]f and when the Refund [wa]s paid\n\nto UWBI the funds w[ould] therefore become property of the [bankruptcy] Estate and\n\n[the FDIC] w[ould] have an unsecured, nonpriority claim for its pro rata share.” Id.\n\nat 178.\n\n In 2015, the IRS, after completing an audit, issued a refund in the amount of\n\n$4,081,334.67.\n\n On September 16, 2016, the bankruptcy court issued an opinion and order\n\ngranting summary judgment in favor of the Trustee and denying the FDIC’s motion\n\nfor summary judgment. In doing so, the bankruptcy court began by noting that 11\n\nU.S.C. § 541 outlines the creation of a bankruptcy estate and provides, in pertinent\n\npart, that the estate includes “‘all legal or equitable interests of the debtor in property\n\nas of the commencement of the case . . . wherever located and by whomever held.’”\n\n 8\n\fAplt. App., Vol. II at 382 (quoting § 541(a)). The bankruptcy court also noted that\n\n“[a] long line of bankruptcy cases (even pre-dating the modern Bankruptcy Code)\n\ndictate that if a debtor owns or is entitled to a federal loss carryback tax refund, such\n\nrefund generally becomes property of the debtor’s bankruptcy estate.” Id. at 383.\n\n The bankruptcy court concluded that the Agreement, “the Internal Revenue\n\nCode, and the IRS regulations all dictate that [UWBI], as the bank holding company\n\nfor the Affiliated Group has at least bare legal title to the Tax Refund.” Id. at 386\n\n(emphasis in original). “After all,” the bankruptcy court noted, “26 C.F.R. § 1.1502-\n\n77(d)(5) requires that the Tax Refund be made ‘directly to and in the name of’\n\n[UWBI].” Id.\n\n The bankruptcy court in turn concluded that the FDIC failed to establish that\n\nthe Bank had equitable ownership of the Tax Refund. In support of this conclusion,\n\nthe bankruptcy court noted that “neither the Internal Revenue Code nor the IRS\n\nregulations establish which entity, [UWBI] or the Bank, has equitable or beneficial\n\nownership of the Tax Refund.” Id.\n\n The bankruptcy court also determined that the Agreement created a debtor-\n\ncreditor relationship between UWBI and the Bank with respect to the tax refund. In\n\nparticular, the bankruptcy court concluded that the Agreement (a) “created fungible\n\npayment obligations through an intercompany account of payments and\n\nreimbursements” that indicated “the parties were creating a debtor-creditor\n\nrelationship,” (b) contains no escrow, segregation, or use restrictions regarding what\n\nUWBI can or cannot do when it receives a tax refund from the IRS, and (c) delegates\n\n 9\n\fdecision-making on tax matters to UWBI. Id. at 390. Consequently, the bankruptcy\n\ncourt concluded that UWBI was “the beneficial owner of the Tax Refunds,” and thus\n\nthe Tax Refund “belong[ed] to the Trustee (as Trustee of the [UWBI] bankruptcy\n\nestate).” Id.\n\n Based upon these conclusions, the bankruptcy court determined “that the\n\nTrustee [wa]s entitled to the Tax Refund.” Id. at 400. The bankruptcy court\n\nemphasized that this “d[id] not leave the FDIC without a remedy” because it was\n\n“still a general unsecured creditor of the [UWBI] bankruptcy estate and [could] share\n\npari passu with any other allowed general unsecured claims.” Id. at 400-01.\n\n The bankruptcy court entered judgment in the adversary proceeding on\n\nSeptember 16, 2016.\n\n g) The district court’s decision\n\n The FDIC appealed and, on July 10, 2017, the district court issued an order\n\nreversing the judgment of the bankruptcy court. The district court concluded, in\n\npertinent part, that the Agreement was “ambiguous regarding whether [UWBI] may\n\nkeep the tax refund in the present circumstances” and “that any ambiguity [should] be\n\nconstrued in favor of the Bank.” Aplt. App., Vol. III at 529. The district court noted\n\nthat the plain language of Section A.2 of the Agreement “declare[d] that the purpose\n\nof the [Agreement] is to set up an arrangement in which [UWBI] acts as nothing\n\nmore than a go-between, as between the subsidiaries and the IRS.” Id. at 552. The\n\ndistrict court also concluded that Section H.4 of the Agreement required it to construe\n\nany ambiguities in favor of the Bank and that, consequently, it was required to\n\n 10\n\finterpret the Agreement as requiring UWBI “to act as agent on behalf of the Bank in\n\nobtaining and remitting the refund.” Id. at 559. Accordingly, the district court\n\nconcluded that UWBI “held no more than legal title to the Refund, while the Bank\n\nheld equitable title,” and thus “[t]he Refund [wa]s not part of [UWBI’s] bankruptcy\n\nestate.” Id. at 560.\n\n The Trustee now appeals from the district court’s decision.\n\n II\n\n The Trustee’s arguments on appeal\n\n The Trustee argues that under “[t]he plain language” of the Agreement,\n\n“UWBI holds equitable title to the Tax Refund, and thus . . . the Refund is property\n\nof the UWBI estate.” Aplt. Br. at 12. In support, the Trustee asserts that the\n\nAgreement “imposes two reciprocal obligations.” Id. He contends that “[i]t requires\n\neach affiliate to pay to UWBI funds equal to the amount the affiliate would have been\n\nliable to pay the IRS had the affiliate filed an individual . . . tax return,” and it in turn\n\n“obliges UWBI to pay each affiliate funds equal to the amount of the refund to which\n\nthat affiliate would have been entitled had it filed a separate tax return.” Id. at 12-13.\n\nFurther, the Trustee argues that “[n]othing in the [Agreement] grants [the Bank] any\n\ninterest in any IRS tax refund actually received by UWBI.” Id. at 13. In short, the\n\nTrustee argues, the Agreement “creates a debtor-creditor relationship, and the Bank\n\nholds only an unsecured claim against the UWBI estate in the amount of funds the\n\nBank would have received had it filed a separate tax return.” Id. at 14.\n\n\n\n 11\n\f Standard of review\n\n “When hearing an appeal from a district court’s review of a bankruptcy-court\n\norder, ‘we independently review the bankruptcy court’s decision, applying the same\n\nstandard as the . . . district court.’” In re Peeples, 880 F.3d 1207, 1212 (10th Cir.\n\n2018) (quoting In re C.W. Min. Co., 798 F.3d 983, 986 (10th Cir. 2015)). “We\n\nreview bankruptcy-court orders granting summary judgment in adversarial\n\nproceedings de novo, and affirm if ‘there is no genuine dispute as to any material fact\n\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.\n\nP. 56(a)).\n\n The scope of UWBI’s bankruptcy estate\n\n It is well established that “[f]iling for Chapter 11 [or Chapter 7] bankruptcy\n\nhas several relevant legal consequences,” the most important of which, for purposes\n\nof this appeal, is that “an estate is created comprising all property of the debtor.”\n\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017) (citing 11 U.S.C.\n\n§ 541(a)(1)). This includes “all legal or equitable interests of the debtor in property\n\nas of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). The\n\nestate does not include, however, “[p]roperty in which the debtor holds, as of the\n\ncommencement of the [bankruptcy] case, only legal title and not an equitable interest\n\n. . . .” 11 U.S.C. § 541(d). Thus, in order for the tax refund to be considered part of\n\nUWBI’s estate, UWBI must hold both legal and equitable title to the tax refund.\n\n\n\n\n 12\n\f The analytical framework for resolving ownership of the tax refund\n\n Section 1501 of the Internal Revenue Code (the Code) authorizes an “affiliated\n\ngroup” of corporations to “mak[e] a consolidated return with respect to income tax\n\n. . . .” 26 U.S.C. § 1501. The Code defines the term “affiliated group” to mean, in\n\npertinent part, “1 or more chains of includible corporations connected through stock\n\nownership with a common parent corporation which is an includible corporation\n\n. . . .” 26 U.S.C. § 1504(a)(1)(A). The Code does not, however, specify what\n\nhappens when an affiliated group that has filed a consolidated federal tax return\n\nreceives a tax refund. More specifically, the Code is silent with respect to the legal\n\nand equitable ownership of such a tax refund.\n\n Federal common law, however, provides a framework for resolving this issue.\n\nThe general rule in this circuit, as outlined in Barnes v. Harris, 783 F.3d 1185, 1195\n\n(10th Cir. 2015), is that “a tax refund due from a joint return generally belongs to the\n\ncompany responsible for the losses that form the basis of the refund.” In adopting\n\nthis principle, Barnes cited to and effectively adopted the Ninth Circuit’s decision in\n\nIn re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.\n\n1973).3\n\n\n\n\n 3\n In Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757 F.3d 530 (6th Cir.\n2014), the Sixth Circuit declined to adopt the Bob Richards rule on the grounds that\nit “is a creature of federal common law” and that “federal common law constitutes an\nunusual exercise of lawmaking which should be indulged only in a few restricted\ninstances.” Id. at 535. Whether or not this is a valid criticism, we are bound by the\ndecision in Barnes.\n 13\n\f Bob Richards involved facts somewhat similar, but not identical, to those at\n\nissue here. Western Dealer Management, Inc. (WDM) was a parent corporation that\n\nwholly owned two subsidiary corporations, one of which was Bob Richards Chrysler-\n\nPlymouth Corporation, Inc. (Bob Richards). In October 1965, Bob Richards filed a\n\npetition in bankruptcy. While that bankruptcy proceeding was pending, WDM filed\n\nconsolidated federal income tax returns on behalf of itself and its two subsidiaries for\n\nthe tax years 1965 and 1966. Notably, “[t]he return for 1966 showed that the\n\nconsolidated group was entitled to a refund of taxes” in the amount of $10,063.25\n\nand “[t]he entire refund . . . was due to the earnings history of” Bob Richards. Id. at\n\n263. The bankruptcy trustee claimed that the refund belonged to the bankruptcy\n\nestate, but WDM claimed a right to the entire tax refund “as a set-off” of a “$45,000\n\nunsecured obligation of” Bob Richards. Id.\n\n The Ninth Circuit concluded that “[t]he Trustee, not WDM, [wa]s entitled to\n\nthe refund.” Id. at 264. In reaching this conclusion, the Ninth Circuit first “note[d]\n\nthat at the date of the filing of the petition in bankruptcy, the Trustee acquired any\n\ninterest [Bob Richards] had in the carryback tax refund.” Id. The Ninth Circuit in\n\nturn noted there was “no evidence that [Bob Richards] or the Trustee at any time\n\nvoluntarily assigned its rights in the refund to WDM.” Id. Although the Ninth\n\nCircuit acknowledged that Bob Richards “consented to the filing of a consolidated\n\ntax return,” it noted that “such consent [could not] be construed to include the\n\ntransfer of a valuable asset without further consideration.” Id.\n\n\n\n 14\n\f Relatedly, the Ninth Circuit noted “that there is nothing in the [Internal\n\nRevenue] Code or Regulations that compels the conclusion that a tax saving must or\n\nshould inure to the benefit of the parent company or of the company which has\n\nsustained the loss that makes possible the tax saving.” Id. (quotations and brackets\n\nomitted). Thus, the Ninth Circuit noted, the normal rule is that “where there is an\n\nexplicit agreement, or where an agreement can fairly be implied, as a matter of state\n\ncorporation law the parties are free to adjust among themselves the ultimate tax\n\nliability.” Id. In the case before it, however, “the parties made no agreement\n\nconcerning the ultimate disposition of the tax refund.” Id. at 265.\n\n All of which led the Ninth Circuit to adopt what has since become known as\n\n“the Bob Richards rule”:\n\n Absent any differing agreement we feel that a tax refund resulting solely\n from offsetting the losses of one member of a consolidated filing group\n against the income of that same member in a prior or subsequent year\n should inure to the benefit of that member. Allowing the parent to keep\n any refunds arising solely from a subsidiary’s losses simply because the\n parent and subsidiary chose a procedural device to facilitate their\n income tax reporting unjustly enriches the parent.\n\nId.\n\n Applying these principles to the facts before it, the Ninth Circuit emphasized\n\nthat “WDM received the tax refund from the government only in its capacity as agent\n\nfor the consolidated group.” Id. And because “there [wa]s no express or implied\n\nagreement that the agent had any right to keep the refund,” it concluded “that WDM\n\nwas acting as a trustee of a specific trust and was under a duty to return the tax\n\nrefund to the estate of the bankrupt.” Id.\n\n 15\n\f The Trustee argues that Barnes and Bob Richards are inapplicable here\n\nbecause of the existence of the Agreement. But the Trustee is only partially correct.\n\nBarnes, which adopted Bob Richards, clearly applies to this case and outlines the\n\ngeneral framework that we must apply in resolving the parties’ dispute. The Trustee\n\nis correct, however, that this case differs from Barnes and Bob Richards because\n\nthere was a written agreement in place—the Agreement—that discussed the filing of\n\na consolidated federal tax return. Consequently, as directed by Barnes and Bob\n\nRichards, we must look to the terms of the Agreement and, taking into account\n\nColorado case law, decide whether it unambiguously addresses how tax refunds are\n\nto be handled and, if so, whether it purports to deviate from the general rule outlined\n\nin Barnes and Bob Richards. See generally Barnhill v. Johnson, 503 U.S. 393, 398\n\n(1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in\n\nproperty’ are creatures of state law.” (quotations omitted)).\n\n What does the Agreement say about tax refunds?\n\n As we shall explain, the written terms of the Agreement are, at best,\n\nambiguous regarding the nature of the relationship that UWBI and the Bank intended\n\nto create with one another. Specifically, certain of its provisions suggest the\n\nexistence of an agency relationship, while other provisions suggest the intent to\n\ncreate something other than an agency relationship.\n\n As noted, Section A.1 of the Agreement, which is contained under the heading\n\n“General Rule – Federal,” provides, in pertinent part:\n\n\n\n 16\n\f If a regulated first-tier Affiliate incurs a net operating loss or excess tax\n credits, the regulated Affiliate is entitled to a refund equal to the amount\n that it would have been entitled to receive had it not joined in the filing\n of a consolidated return with UWBI. Similar treatment is optional at\n UWBI discretion for nonregulated first-tier Affiliates. Any refund shall\n generally not exceed the amount claimed or received as a refund\n resulting from a carryback claim filed by UWBI. However, this shall\n not prevent UWBI from the ability to make a refund over the amount\n received or claimed as a refund or carryback, if in its sole discretion it\n believes such payment is in its best interest. Additionally, if part of\n [sic] all of an unused consolidated net operating loss, net capital loss,\n tax credit or similar type item is allocated to an Affiliate pursuant to\n Regulations Section 1.1502-21, and it is carried back, if utilized, or it is\n carried forward, whether or not utilized, to a year in which such\n Affiliate filed a separate income tax return or a consolidated federal\n income tax return with another group, any refund or reduction in tax\n liability arising from the carryback or carryforward shall be retained by\n such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\nAplt. App., Vol. I at 41.\n\n The first of these sentences—stating that “[i]f a regulated first-tier Affiliate,”\n\ni.e., the Bank, “incurs a net operating loss or excess tax credits, the regulated\n\nAffiliate is entitled to a refund equal to the amount that it would have been entitled to\n\nreceive had it not joined in the filing of a consolidated return with USBI”—is\n\narguably ambiguous. On the one hand, it purports to “entitle[]” the regulated affiliate\n\n“to a refund equal to the amount that it would have received had it not joined in the\n\nfiling of a consolidated return.” On the other hand, when contrasted with the last\n\nsentence, it does not give the Bank the right to “retain” the refund. Instead, under the\n\nfirst sentence, a refund received by UWBI as a result of a net operating loss incurred\n\nby the Bank is taken into account by the parties in calculating their year-end\n\nliabilities to each other.\n\n 17\n\f The second and third sentences of Section A.1 afford UWBI with two types of\n\ndiscretion: (1) whether to pay any refund at all to a nonregulated affiliate; and (2)\n\nwhen it pays a refund to any affiliate, whether to pay an amount equivalent to the\n\namount the affiliate would have received had it filed its own income tax return, or\n\ninstead to pay a greater amount. These sentences thus arguably point toward\n\nsomething more than a mere agency relationship.\n\n The last sentence of Section A.1 indicates that if a net operating loss of any\n\naffiliate is carried back to a year when that affiliate was filing a separate income tax\n\nreturn (or filing a consolidated return with another group), then “any refund . . . shall\n\nbe retained by such Affiliate and such item will not enter into the calculation of\n\nliability to or from UWBI.” This arguably suggests that, in all other situations, an\n\naffiliate does not “retain” a tax refund and, instead, refunds are taken into\n\nconsideration during the annual reconciliation of liability between the parties.\n\n Section A.2 of the Agreement, which is also contained under the heading\n\n“General Rule – Federal,” states: “In essence, this Agreement requires that each first-\n\ntier subsidiary be treated as a separate taxpayer with UWBI merely being an\n\nintermediary between an Affiliate and the Internal Revenue Service . . . .” Id.\n\nAlthough the term “intermediary” is not expressly defined in the Agreement, it is\n\ncommonly understood to mean “[a] mediator or go-between.” Intermediary, Black’s\n\nLaw Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1, Section\n\nA.2 clearly points to the existence of an agency relationship between UWBI and its\n\n\n\n 18\n\faffiliates, rather than a debtor/creditor relationship. In other words, it suggests that\n\nUWBI will simply act as a conduit through which the refund will pass.\n\n Section F of the Agreement, entitled “Tax Settlement Payments – Federal and\n\nState,” states, in pertinent part, that affiliates are to make “[e]stimated payments of\n\nFederal . . . taxes” to UWBI on a specified quarterly basis (April 15, June 15,\n\nSeptember 15, and December 15). Id. at 44. Those estimated payments are to be in\n\n“an amount equal to the amount of any estimated federal income taxes which the\n\nAffiliate would have been required to pay on or before such dates if the Affiliate had\n\nfiled its own separate income tax return for such taxable period.” Id. “Payments [by\n\nUWBI] to an Affiliate for net operating losses or similar items shall not be made\n\nunder this provision, but rather on an annual basis pursuant to Section A” of the\n\nAgreement. Id.\n\n In turn, Section E of the Agreement, entitled “Tax Settlement Payments –\n\nFederal,” provides in pertinent part:\n\n 1. Preliminary tax settlement payments are due on or before March 15\n following the end of the appropriate taxable year. Although\n overpayments of estimated taxes made by Affiliates are not refunded\n until final tax settlement is done, an Affiliate with a taxable loss for the\n year may recover estimated taxes paid for that year before final\n settlement if an “expedited refund” claim is filed with UWBI by\n February 15 following the end of the tax year.\n\n 2. Each first-tier Affiliate shall compute its final tax settlement liability\n based on the amounts included for that Affiliate (and its subsidiaries, if\n applicable) in the consolidated federal income tax return filed. A copy\n of such computation will be prepared by October 31, and any\n differences will be resolved. Final tax settlement payments or refunds\n are due on or before November 15.\n\n\n 19\n\fId. at 43-44.\n\n Considered together, Sections E and F obligate affiliates to make quarterly\n\nestimated tax payments to UWBI during the course of a taxable year, preliminary tax\n\nsettlement payments to UWBI on or before March 15th following the end of the\n\ntaxable year, and final tax settlement payments, if necessary, to UWBI on or before\n\nNovember 15th following the end of the taxable year. In turn, Section E, when\n\nconsidered together with Section A, obligates UWBI to (1) refund to its affiliates, by\n\nNovember 15th following the end of the taxable year, any overpayments of estimated\n\ntaxes, (2) expedite any such refund if an affiliate has a taxable loss for the year in\n\nquestion and the affiliate files with UWBI an expedited refund claim by February\n\n15th following the end of the taxable year, and (3) ensure that, when a regulated first-\n\ntier affiliate incurs a net operating loss or excess tax credits, any such refunds paid to\n\nthat affiliate are equal to or greater than the amount that such affiliate would have\n\nbeen entitled to receive had it not joined in the filing of the consolidated tax return.\n\n Section G of the Agreement states that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent . . . for the purpose of filing such consolidated Federal income tax\n\nreturns for the UWBI group as UWBI may elect to file and making any election,\n\napplication, or taking any action in connection therewith on behalf of the Affiliates.”\n\nId. at 44.\n\n Lastly, Section H of the Agreement, entitled “Miscellaneous,” contains two\n\nrelevant paragraphs. Section H.1 states:\n\n\n\n 20\n\f In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. Further, Subsection H.4 states, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45.\n\n Considered in its entirety, it is apparent that the Agreement was intended to\n\nauthorize the filing of a consolidated tax return and, in turn, to create a series of\n\npayment obligations between UWBI and its affiliates—including the Bank—in order\n\nto carry out the goal of filing a consolidated tax return. Affiliates are obligated, by\n\nway of both estimated and final tax payments, to pay UWBI the precise amount of\n\ntheir federal income tax obligations. UWBI, in turn, is obligated to refund to its\n\naffiliates any overpayments of estimated taxes. When an affiliate incurs a taxable\n\nloss due to net operating losses or excess tax credits, UWBI’s obligations depend\n\nupon the nature of the affiliate. If the affiliate is a regulated, first-tier affiliate such\n\nas the Bank, then UWBI is obligated to pay that affiliate “a refund equal to” or\n\ngreater than “the amount that it would have been entitled to receive had it not joined\n\nin the filing of a consolidated return with UWBI.” Id. at 41 (§ A.1 of the\n\n\n 21\n\fAgreement). For “nonregulated first-tier Affiliates,” UWBI has the discretion to\n\ndecide whether or not to treat them similarly to regulated first-tier affiliates in terms\n\nof tax refunds. Id.\n\n Critically, however, the Agreement is, on its face, ambiguous with respect to\n\nthe type of relationship it intends to create between UWBI and regulated, first-tier\n\naffiliates, such as the Bank, regarding the ownership of refunds from the IRS. 4 See\n\nPinnacol Assurance v. Hoff, 375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract\n\nis ambiguous if it is reasonably susceptible of more than one meaning); id. (“Whether\n\na written contract is ambiguous is a question of law that we review de novo.”). On\n\nthe one hand, portions of the Agreement quite clearly indicate the intent to create an\n\nagency relationship between UWBI and its regulated, first-tier affiliates. For\n\nexample, Section A.2 states that “each first-tier subsidiary [is to] be treated as a\n\nseparate taxpayer with UWBI merely being an intermediary between an Affiliate and\n\nthe” IRS. Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being\n\nappointed by each affiliate to act as its agent for purposes of filing the consolidated\n\ntax return and taking any action in connection therewith. On the other hand, portions\n\nof the Agreement arguably suggest the intent for UWBI to retain tax refunds before\n\nforwarding them on to regulated, first-tier affiliates. For example, parts of Section\n\n\n 4\n Rodriguez argues the FDIC has waived any argument that the Agreement is\nambiguous. We reject that argument. The FDIC has consistently argued the\nAgreement creates an agency relationship, rather than a debtor/creditor relationship.\nThe FDIC has also consistently argued that any ambiguity in the Agreement must be\nresolved in the Bank’s favor. Aplt. App., Vol. I at 89, 237; Vol. III at 423, 434, 452,\n453, 500, 520-21.\n 22\n\fA.1 imply that UWBI will retain tax refunds and then later take them into account\n\nduring the annual settlement process. In addition, the fact that Section A.1 affords\n\nUWBI with discretion regarding the amount to refund a regulated, first-tier affiliate\n\n(i.e, the exact amount of the refund or a greater amount) seems to suggest something\n\nother than an agency relationship. Finally, the ambiguity of the Agreement on this\n\nissue is compounded by the fact that it contains no language requiring UWBI to\n\nutilize a trust or escrow for tax refunds—which would suggest the existence of an\n\nagency or trust relationship—nor does it contain provisions for interest and\n\ncollateral—which would be indicative of a debtor-creditor relationship. See In re\n\nNetBank, Inc., 729 F.3d 1344, 1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v.\n\nAmFin Fin. Corp., 757 F.3d 530, 535 (6th Cir. 2014).\n\n Resolving the Agreement’s ambiguity\n\n Notably, the Agreement itself provides a method for resolving the ambiguity.\n\nSection H.4 of the Agreement states that “[a]ny ambiguity in the interpretation hereof\n\nshall be resolved, with a view to effectuating such intent [i.e., to provide an equitable\n\nallocation of the tax liability of the Group among UWBI and the Affiliates], in favor\n\nof any insured depository institution.” Aplt. App., Vol. I at 45. Quite clearly,\n\nconstruing the Agreement to create an agency relationship between UWBI and the\n\nBank with respect to federal tax refunds—and thereby affording ownership of the tax\n\nrefund to the Bank—is more favorable to the Bank than construing the Agreement to\n\ncreate a debtor/creditor relationship and thus affording ownership of federal tax\n\nrefunds to UWBI. We therefore conclude that the ambiguity in the Agreement must\n\n 23\n\fbe construed in favor of the Bank and the FDIC, and that, consequently, the\n\nAgreement must be read as creating only an agency relationship between UWBI and\n\nthe Bank.\n\n Conclusion\n\n In sum, we conclude that the Agreement creates an agency relationship\n\nbetween UWBI and the Bank and that, consequently, the Agreement’s intended\n\ntreatment of tax refunds does not differ from the general rule outlined in Barnes and\n\nBob Richards. Therefore, we conclude that the tax refund at issue belongs to the\n\nBank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment\n\nin its favor.\n\n III\n\n We AFFIRM the judgment of the district court and REMAND to the\n\nbankruptcy court for further proceedings consistent with this opinion.\n\n\n\n\n 24\n[END_CASE]", "role": "user" } ]
8,443,852	United States v. Richard ROE	United States v. Roe	2019-01-29	No. 19-600	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Murphy", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415279/", "author_raw": ""}]}	MURPHY	MURPHY		0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443852/	Published	0	1	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: United States v. Richard ROE\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]", "role": "user" } ]
4,578,980	Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.	Jimmy Meders v. Warden, Georgia Diagnostic Prison	2019-01-04	14-14178; 15-14734	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Carnes, Marcus, Newsom", "parties": "", "opinions": [{"author": "ED CARNES, Chief Judge", "type": "010combined", "text": "Case: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 14-14178; 15-14734\n ________________________\n\n D.C. Docket No. 2:07-cv-00090-LGW-JEG\n\n\n\nJIMMY FLETCHER MEDERS,\n\n Petitioner-Appellant,\n\n versus\n\nWARDEN, GEORGIA DIAGNOSTIC PRISON,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n ________________________\n\n On Petition for Rehearing by the Panel\n\n ––––––––––––––––––––––––\n\n (January 4, 2019)\n\nBefore ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.\n\nED CARNES, Chief Judge:\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 2 of 44\n\n\n The Appellant, Jimmy Fletcher Meders, filed a petition for rehearing en\n\nbanc, which under our rules also counts as a petition for panel rehearing. See 11th\n\nCir. R. 35, I.O.P. 2 (“A petition for rehearing en banc will also be treated as a\n\npetition for rehearing before the original panel.”); Cadet v. Fla. Dep’t of Corr., 853\n\nF.3d 1216, 1218 (11th Cir. 2017) (“At least until an order granting or denying the\n\npetition for rehearing en banc is issued, a panel retains authority to modify its\n\ndecision and opinion.”).\n\n The petition, insofar as it requests panel rehearing, is granted to the extent\n\nthat we vacate our earlier opinion, Meders v. Warden, Ga. Diagnostic Prison, 900\n\nF.3d 1330 (11th Cir. 2018), and issue this one in its place.\n\n The petition for rehearing en banc remains pending. In light of the issuance\n\nof this revised panel opinion, the Appellant is granted 21 days to file a supplement\n\nto his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P.\n\n40(a)(4)(C); cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1188\n\nn.14 (11th Cir. 2018). He is not required to file a supplement. If he does file one\n\nand the Court desires a response from the Appellee, one will be requested.\n\n Our revised opinion follows:1\n\n\n\n 1\n Our only revisions involve Part II of the opinion. We have removed the seven\nparagraphs of the former opinion beginning with: “The Georgia Supreme Court denied Meders’\n. . .” and ending with “hearing in the state trial court on remand.” In their place we have added\nthe 10 paragraphs beginning with: “The Georgia Supreme Court denied Meders’ . . .” and\nending with “that are relevant to the ineffective assistance of counsel claims.”\n\n\n 2\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 3 of 44\n\n\n Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C. § 2254\n\npetition in the Southern District of Georgia raising 18 claims. After the district\n\ncourt denied his petition, Meders moved for a certificate of appealability on several\n\nof his claims. The district court granted that motion only as to his claim alleging\n\nthat trial counsel was ineffective at the guilt phase of his trial. This is his appeal.\n\n I. BACKGROUND\n\n A. Facts\n\n The facts that follow in these two paragraphs are not disputed. On October\n\n13, 1987, Meders went to help his boss, Randy Harris, fix a car at Harris’ house.\n\nBill Arnold and Greg Creel later arrived at the house. Arnold is Harris’ cousin,\n\nand Creel is Arnold’s friend. Meders, Harris, Arnold, and Creel spent the\n\nafternoon drinking beer and liquor. The four of them went to a Best Western motel\n\nlater that evening, where Harris had rented a room for a young woman with whom\n\nhe was having an extramarital affair. Meders, Arnold, and Creel left the motel\n\nlater that night.\n\n Around 2:35 the next morning (October 14), the three men stopped by a\n\nJiffy Store. Don Anderson, the store clerk, was shot twice — once in the chest,\n\nonce in the head — and he died. The weapon used in the shooting was a Dan\n\nWesson .357 Magnum revolver. Meders took between $31 and $38 from the cash\n\nregister. Included in the cash taken were two $1 bills and a $5 bill that the store\n\n\n\n 3\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 4 of 44\n\n\nmanager had planted as bait money — she had written down the three bills’ serial\n\nnumbers and kept them in the store’s records so that the money could be identified\n\nif the store was robbed and the money was recovered. That bait money and some\n\nfood stamps were found in Meders’ wallet and in his house after he was arrested\n\nlater that same day. The murder weapon was found under his bed two days later.\n\n B. The Trial\n\n Meders was indicted in Georgia state court in December 1987 for the murder\n\nand armed robbery of Anderson, the store clerk. The case proceeded to a jury trial.\n\n 1. The State’s Witnesses\n\n Because the claim Meders presses in this Court involves the trial testimony\n\nof several of the State’s witnesses, we recount their testimony in some detail.\n\n The State first called Harris to the stand. He testified that he spent the\n\nafternoon of October 13 drinking with Meders, Arnold, and Creel. He paid Meders\n\nabout $200 for his work on a car, and while they were sitting around drinking and\n\ntalking, Meders kept mentioning that he owed some people in Florida $2,000 for\n\nsome drugs, and that they were “going to come down here and kill him if he didn’t\n\npay them.”\n\n Harris testified that later that evening all four men went to a Best Western\n\nmotel. They continued to drink, “smoked a joint or two,” and sat around talking in\n\nthe motel room. Meders, Arnold, and Creel left the motel around 8:30 p.m. but\n\n\n\n 4\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 5 of 44\n\n\nMeders returned to it around 3:15 a.m. After he did so, according to Harris,\n\nMeders pulled out a revolver and told him: “I just blowed a man’s head off over\n\n$38.00.” Harris thought he was joking, so Meders threw some cash and some\n\n“little white pieces of paper” about “the same size [as] a dollar bill” on the bed.\n\nMeders also opened the revolver’s chambers and dumped the bullets on the bed.\n\nHarris said that two of the bullets had been “freshly fired.” He testified that\n\nMeders picked up the cash and the pieces of paper, put them back in his pocket,\n\nand left the motel.\n\n Harris testified that around that same time, Arnold called his motel room and\n\nasked Harris to pick up Creel and him from a trailer park. Harris drove Creel’s\n\ntruck to the trailer park, picked up both of them, and took them to Harris’ house.\n\nAfter arriving at his house around 4:00 or 5:00 a.m., Harris urged the two of them\n\nto go to the police and report what had happened. He testified that the three of\n\nthem talked for about an hour and then all three went to sleep at his house. Around\n\n9:00 a.m., Harris woke up and went to his shop; the police questioned him there\n\nand then took him to the police station for more questioning.\n\n Creel testified next for the State. He stated that he, Harris, Arnold, and\n\nMeders had spent the afternoon of October 13 drinking before going to the Best\n\nWestern later that evening. After spending a few hours in the motel room, he,\n\nArnold, and Meders left and went riding around, stopping at a couple of bars.\n\n\n\n 5\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 6 of 44\n\n\nArnold was driving, Meders was in the passenger seat, and Creel was in the back\n\nseat. They later stopped at a Jiffy Store because Creel was hungry. He testified\n\nthat both he and Meders got out of the car and went into the store. Once inside,\n\nCreel grabbed a Yoo-hoo and a package of sausage and biscuits. While he was\n\nheating up his sausage and biscuits in a microwave in the back of the store, he\n\nheard a gunshot. He turned around and saw the store clerk falling against the wall\n\nand Meders facing the wounded clerk.\n\n Creel testified that he “tore out” of the store, and as he was running out, he\n\nheard a second gunshot. He exited the store, jumped in the back seat of the car,\n\nand told Arnold to “go” because Meders had “just shot a man.” He recounted how\n\nMeders had run out of the store, jumped in the front passenger seat of the car, and\n\npointed his gun at Arnold and Creel. Arnold drove to Shady Acres, a trailer park,\n\nwhere he and Creel got out. Meders got in the driver’s seat, and Arnold told\n\nMeders “to never come around him again.” Meders asked Arnold and Creel if they\n\nwanted any of the money or food stamps he had taken from the store. They both\n\nsaid no, that they didn’t want any part of it. Creel and Arnold then walked to one\n\nof the trailers where they called Harris to pick them up. Creel testified that he\n\ndidn’t know Meders until the day before the shooting, that he didn’t know that\n\nMeders had a gun until the shooting, and that he had no idea that Meders was\n\n\n\n\n 6\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 7 of 44\n\n\ngoing to rob the store or shoot the clerk. He also stated that he had given the police\n\ntwo statements about the incident: one on October 15, and one a few weeks later.\n\n On cross-examination Creel confirmed that, after they all were finished\n\ndrinking at Harris’ house, they did not take Meders back to his house but instead\n\nwent to the Best Western. For that reason, Creel thought Meders “must have” had\n\nthe gun on him during the afternoon of October 13. Defense counsel also asked\n\nCreel whether he shot at a couple of trucks while they were riding around that\n\nevening. Creel testified that he did not — that he didn’t even know Meders had a\n\ngun until the shooting inside the store.\n\n The State next presented Arnold, who is Harris’ cousin. For the most part\n\nArnold’s testimony tracked Creel’s. Arnold testified that he had grown up with\n\nCreel and that he had known Meders for about “a year or two” before the shooting.\n\nArnold told how, after the four of them spent the afternoon of October 13 drinking,\n\nthey all went to a room at the Best Western, and later he, Creel, and Meders left\n\n(without Harris) to go riding around. In the early morning hours of October 14,\n\nthey stopped at a Jiffy Store because Creel was hungry and Meders wanted some\n\ncigarettes. After Arnold parked the car, Creel and Meders both went inside the\n\nstore. The next thing Arnold heard was a gunshot, and the next thing he saw was\n\nCreel running out of the store. Then Arnold heard another shot, and Creel jumped\n\nin the car and “hollered that Jimmy [Meders] had just killed that man.” Meders\n\n\n\n 7\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 8 of 44\n\n\nthen jumped in the car, waved his gun around and pointed it at Arnold and Creel,\n\nand told Arnold to drive off and “get away from the store.”\n\n Which Arnold did. He drove them to the Shady Acres Trailer Park, where\n\nhe and Creel got out of the car and refused to take any of the cash Meders had\n\nstolen. Meders got in the driver’s seat and drove off, while Arnold and Creel went\n\ninto a friend’s trailer and called Harris and asked him to pick them up. Arnold\n\ntestified that Harris picked them up and they all went to Harris’ house, where he\n\ntold them that they should go to the police. Instead, the three went to sleep.\n\nArnold went to the police station the next morning, October 15, to give a\n\nstatement.\n\n On cross-examination Arnold testified that he did not take Meders back to\n\nhis house in the hours before the shooting but that they did stop by a bar while they\n\nwere driving around. He stated that no one in the car had “shot at a truck” while\n\nthey were driving around.\n\n Margaret Clements, who was the manager of the Jiffy Store at the time of\n\nthe shooting, was the next witness for the State. She testified that a couple of days\n\nbefore the shooting she had recorded the serial numbers from a $5 bill and two $1\n\nbills, and that those three bills were put in a money clip in the register to use as the\n\nstore’s “bait money.” When the bait money was removed from the register, it\n\nwould trigger a silent alarm. She said that when she went to the store after the\n\n\n\n 8\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 9 of 44\n\n\nshooting, between $31.00 and $38.00 — which included the $7.00 in bait money\n\n— had been taken from the register, but she couldn’t determine how many food\n\nstamps were taken. She also testified that a receipt was left sticking out of the\n\nregister, which showed a transaction for 51 cents at 2:35 a.m. on October 14, 1987.\n\n The State then presented several witnesses who testified about the scene of\n\nthe crime, the evidence related to the crime, and the police department’s\n\ninvestigation of the crime.2 Among them was Charles Byerley, an investigator\n\nwith the county police department, who testified about the evidence found during\n\nthe search of Meders’ house. He and two other officers found a holster containing\n\nseveral rounds of .357 Magnum bullets. They also found a dollar bill that was torn\n\nin half sitting on top of a television in the house. Byerley testified that the torn\n\ndollar bill had the same serial number as one of the $1 bills from the Jiffy Store’s\n\nbait money. He also stated that after Meders was arrested later that day, he had\n\ninventoried Meders’ wallet and found $82 in cash, as well as some food stamps.\n\n\n 2\n Abe Brown, the Glynn County coroner, and David Griffin, the county medical\nexaminer, testified about Anderson’s gunshot wounds and the cause of his death. Charlie\nBeasley from the Glynn County Police Department’s evidence and investigation unit testified\nthat he secured the evidence from the crime scene and a few days later he delivered it to Roger\nParian, a firearms examiner from the Georgia Bureau of Investigation. Parian testified that,\nbased on the evidence from the crime scene, the two .357 Magnum bullets recovered there came\nfrom the Dan Wesson .357 revolver that Beasley had provided to him.\n Greg McMichael, a Glynn County police officer at the time of the shooting, testified that\nwhen he responded to the call at the Jiffy Store, he passed a car with several occupants driving\naway from the location of the Jiffy Store. And Matthew Doering, a detective from the Glynn\nCounty Police Department, testified that on October 14 he found that same car at Meders’ house.\nAfter impounding it, he searched the car and found a “Dandy Sausage Biscuits” wrapper.\n\n\n 9\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 10 of 44\n\n\nThe serial numbers of a $1 bill and a $5 bill from Meders’ wallet matched the\n\nserial numbers of the other $1 bill and the $5 bill from the bait money.3 A Georgia\n\ncitation for the sale of cocaine was also found in Meders’ wallet and it was\n\nadmitted into evidence.\n\n The State called Jack Boyet as its last witness. Boyet was a detective with\n\nthe Glynn County Police Department at the time of the murder. He responded to\n\nthe scene at the Jiffy Store and also went with two other officers to Meders’ house\n\nlater that morning to question him. At the house Boyet told Meders that he had\n\nsome questions about a homicide at the Jiffy Store, and Meders falsely stated that\n\nhe didn’t know anything about it. Boyet then asked Meders whether he had a gun\n\nor knife on him, and Meders admitted that he did. The officers took a “small .22\n\npistol,” which was loaded and had a shell in the chamber, from the right pocket of\n\nhis jacket. They also found 17 food stamps in the left pocket of Meders’ jacket.\n\nAfter reading him his Miranda rights, Boyet asked him if he had any other firearms\n\nin the house, and Meders said he had a .357 revolver. The officers obtained that\n\nfirearm (a fully loaded Ruger Black Hawk .357 revolver) and the .22 pistol and\n\ntook Meders to the station for more questioning.\n\n\n\n\n 3\n Neal Harrell, a special agent with the Georgia Bureau of Investigation, testified that he\nwent with Byerley to Meders’ house around 11:15 a.m. on October 14, and confirmed that he\nand Byerley discovered the evidence that Byerley testified about at trial.\n\n\n 10\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 11 of 44\n\n\n Detective Boyet told the jury that at the police station Meders again stated\n\nthat he didn’t know anything about the robbery-murder and had not gone to the\n\nJiffy Store. He claimed, instead, that he had been at the Best Western and had\n\ngone home around midnight. Boyet then informed Meders that Harris had just\n\ngiven a statement to detectives that Meders had told him that he “had blew a man’s\n\nhead off for $38.00.” Meders denied saying that and told Boyet that Harris was\n\n“trying to get him” because he thought Meders was having an affair with his wife.\n\nAfter Boyet finished interviewing him, Meders was arrested.\n\n Boyet testified that on October 16, Harris came to the police station and said\n\nthat he “had received information” that the gun used in the shooting was under\n\nMeders’ waterbed. Boyet executed a search warrant at Meders’ house that day and\n\nfound a Dan Wesson .357 Magnum revolver “under the center of the [waterbed’s]\n\nmattress.” The firearms examiner later concluded that the revolver had fired the\n\ntwo bullets that killed the Jiffy Store clerk.\n\n Boyet also testified that on November 14, 1988 — a year and one month\n\nafter the murder and Meders’ first statement to police, and four months before the\n\ntrial — Meders asked to talk with him again. Despite his previous statements\n\ndenying that he knew anything about the crime, Meders now told Boyet a different\n\nstory. Here’s how Boyet recounted on the witness stand Meders’ new story:\n\n He said that he first got with Bill Arnold and Greg Creel on the\n afternoon of October 13th, 1987. . . . They drank beer, smoked several\n\n 11\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 12 of 44\n\n\n joints, got high, got drunk, and they [ ] went to a motel room where\n Randy Harris was [ ] with a girl. . . .\n\n They rode around that afternoon and took him home. He was\n drunk, passed out on the couch. Around 11:00 [p.m.] they came back\n to his house. Bill Arnold woke him up and told him they needed him\n to go with him, and to bring his gun. He told the[m] he didn’t want to\n go, said we need you to go, get your gun and come with us, said he got\n his gun, the Dan Wesson revolver out from under the couch, got in the\n car with them. At that time they went to the Best Western Motel where\n Randy and Sandra Ruggles were at. At that point [Harris] and [Arnold]\n got over in the side of the room, were whispering low voices. He\n couldn’t understand what they were saying. [Arnold, Creel, and\n Meders] then got in the Roadrunner and left, went riding around, rode\n around the County. At one point Bill Arnold took the gun, the Dan\n Wesson, and shot at a truck. They shot at a . . . flower shop . . . on 303,\n shot a new Chevy truck somewhere on 303. They passed a young man\n by the name of Keith Bowen on Community Road. [Arnold] asked\n [Meders] to shoot [Bowen], or give him a gun, he would shoot him, and\n [Meders] said he got scared and told him he was crazy, and they kept\n riding. Said they rode several hours still drinking. They pulled into the\n Jiffy Store to get something to eat at Marshes of Mackay. All three\n went in. He said Creel went to the back, got something, put it in a\n microwave oven. He stayed up by the counter, didn’t go any further\n because he was drunk. Said at that time Bill Arnold pulled out the gun,\n shot the man, that he fell. He shot him again, and [Meders] said he told\n him, you shot that man. He said [Arnold] laughed, and said, yes, no\n witnesses, get the money. Then he said he then took the money out of\n the cash register. They got in the car and left. After leaving there, they\n went to Shady Acres Trailer Park. . . . [Creel] and [Arnold] got out of\n the car there, left him with the car, said he left the gun with [Arnold].\n He drove directly home, did not go anywhere, and went to bed.\n\nMeders also told Boyet that he did not go to Harris’ motel room after the murder,\n\nthat Harris had told him later that morning that the best thing he could do is keep\n\nhis mouth shut about the shooting, and that Harris had put the gun under Meders’\n\nmattress. Boyet testified that Meders said he had waited more than a year to tell\n\n\n 12\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 13 of 44\n\n\nthe police about the incident because he was scared of what would happen if he\n\ntold them. Boyet confirmed that he had not found any evidence that Arnold or\n\nCreel ever had the gun that killed the store clerk, or any evidence that corroborated\n\nMeders’ story about what had happened.\n\n Defense counsel then cross-examined Boyet. Boyet stated that when he\n\nquestioned Creel and Arnold on October 15 about whether they had shot at a truck\n\nas they were riding around during the night of October 13, they both denied it.\n\nDefense counsel then asked: “And did you have any reason to, to doubt that they\n\nwere telling you the truth?” Boyet responded: “The only thing I had to indicate\n\nthat they did do it was, is Jimmy Meders saying that they did.” He added: “There,\n\nthere is no other evidence to indicate that they did. There, there are no witnesses\n\nthat saw it other than the, the three who were allegedly in the [car], and I have no\n\nproof that they did do it.”\n\n 2. The Defense Witnesses\n\n The State rested, and the defense presented its case. Five witnesses testified\n\nfor the defense before Meders himself took the stand. His wife Sherry testified that\n\nMeders had passed out from drinking around 10:00 p.m. on October 13, 1987, that\n\nArnold came inside their house later that night asking to borrow a gun, and Meders\n\nleft the house with him. On cross-examination Sherry Meders admitted telling\n\nofficers on October 14 that she did not know whether her husband had left the\n\n\n\n 13\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 14 of 44\n\n\nhouse during the previous night and that she did not tell them that Arnold came by\n\nthe house to pick up Meders or Meders’ gun. She had told the police that Meders\n\nhad, among other guns, two .357 caliber guns in the house. She testified that she\n\nnever told Harris that the murder weapon was under Meders’ waterbed.\n\n Wayne Martin, a friend of Meders, testified that after going by the Best\n\nWestern for about 10 minutes on the night of October 13, he and Meders went to\n\nMeders’ house to drink some beer. He stated that when he left around 10:00 p.m.\n\nMeders was “passed out . . . on the couch.” Martin stated that a couple of months\n\nafter the shooting, Meders told him that he had been with Arnold and Creel at the\n\ntime of the shooting, that they had his gun, but that he didn’t remember what\n\nhappened during the shooting.\n\n Meders’ brother and his brother’s wife both testified that they saw Meders\n\naround 2:25 a.m. on October 14, that he was with Arnold and Creel then, and that\n\nthe three men had a gun in the car. His brother also stated that about six to seven\n\nmonths after the shooting, Meders told him that either Arnold or Creel had shot the\n\nclerk. Another witness testified that he saw Arnold at a bar around 5:00 or 6:00\n\np.m. on October 14, the day of the murder, and that Arnold told him and a few\n\nothers that he had to go see Harris and Creel to “see what the deal was” and “get\n\nthe story straight.”\n\n\n\n\n 14\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 15 of 44\n\n\n Finally, Meders testified on his own behalf. He said that during the\n\nafternoon of October 13, 1987, he and Harris took two 10 milligram Valiums each\n\nand drank some beer at the auto shop before Arnold and Creel met them at Harris’\n\nhouse, where they all drank some more. He stated that Harris gave him $250 for\n\nsome work he had done on a car, and Harris also bought a bulldog from Creel for\n\n$50. Meders testified that he, Arnold, and Creel “felt like getting drunk” so they\n\nwent to the liquor store and bought some alcohol. Around 5:30 p.m., Meders felt\n\nlike he had “had enough to drink,” so he stopped drinking — at least for a little\n\nwhile. He said that Harris then told him, Arnold, and Creel that he had to go pick\n\nhis wife up from work, so Arnold and Creel drove Meders home.\n\n Meders testified that later that night, his friend Wayne Martin took him to\n\nthe motel room that Harris had rented. Meders and Harris talked for a little while,\n\nthen Martin took Meders back home, where Meders drank some beer and passed\n\nout on the couch. The next thing Meders recalled was Arnold waking him up\n\naround 11:00 or 11:30 p.m. insisting that he “go with him.” Arnold picked him up\n\nunder the arms, and then as they were leaving Meders’ house Arnold grabbed the\n\nDan Wesson .357 Magnum, which was the murder weapon. They got in the car\n\nwith Creel and went to Harris’ motel room. Meders testified that after leaving the\n\nmotel, Arnold drove Creel and Meders by two houses. He said that Arnold and\n\nCreel had gotten in a fight with some people (one of whom was a man named\n\n\n\n 15\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 16 of 44\n\n\nKeith Bowen) and “wanted revenge,” and as the three men were driving by those\n\ntwo houses, Arnold fired Meders’ gun twice — once at a dark truck parked at one\n\nhouse, and the other time at a white truck parked at the other house. Meders then\n\ntold Arnold to take him home because he didn’t want to be involved in any trouble.\n\n According to Meders, Arnold did not take him home but instead drove to a\n\nconvenience store. After that Meders started driving the car, and as he was\n\nheading back to his house, he saw his brother and his brother’s wife making a\n\ndeposit at a bank “right around the corner from [his] house.” When they stopped at\n\nthe bank to talk to Meders’ brother and sister-in-law, Arnold got back in the\n\ndriver’s seat. They then drove to another convenience store, and Arnold went in\n\nwith Meders’ gun in his pocket while Creel and Meders sat in the car. Meders\n\ntestified that they thought Arnold was just “kidding” around by taking the gun\n\ninside.\n\n Meders testified that after Arnold returned to the car, he drove to the Jiffy\n\nStore, and all three men went inside. Meders testified that he and Arnold were\n\nstanding near the counter while Creel went to the microwave. He stated that out of\n\nnowhere, Arnold “pulled the gun and shot” the clerk twice, then told Meders: “No\n\nwitnesses. Get the money.” Meders grabbed the money out of the cash register,\n\nand the three men exited the store “pretty quickly,” got in the car, and Arnold\n\ndrove to Shady Acres Trailer Park, where he and Creel got out. Meders told\n\n\n\n 16\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 17 of 44\n\n\nArnold to keep the gun, that he didn’t want it back, and then he drove back to his\n\nhouse. He testified that after getting to his house, an officer pulled up and told him\n\nthat he had a brake light out. Meders went inside and went to sleep on the couch.\n\n Later that morning Harris came by Meders’ house and told him to “go on to\n\nwork” and that he would be there shortly. Meders testified that Harris later told\n\nhim at the shop that he should keep his mouth shut and “let [it] blow over” because\n\nMeders had a wife and child to take care of. Meders went back to his house, and\n\nseveral officers showed up. He told the officers multiple times that he did not\n\nknow anything about the shooting, which he admitted at trial was not true. Meders\n\nwent to the police station around 11:15 that morning and, as he claimed that Harris\n\nhad advised him, told the officers again that he did not know anything about the\n\nrobbery-murder.\n\n Meders acknowledged at trial that he did not tell Detective Boyet that he\n\nwitnessed the shooting until more than a year after the murder. He also conceded\n\nthat although he did not know how the torn $1 bill from the bait money ended up\n\non his television, the officers did find the other two bills of the bait money (the $5\n\nbill and the other $1 bill) in his wallet. And he acknowledged that the officers\n\nfound the murder weapon under his bed after Harris told them on October 16,\n\n1987, exactly where to find it. He claimed that he had no idea how the firearm got\n\nthere.\n\n\n\n 17\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 18 of 44\n\n\n 3. The State’s Rebuttal Witnesses\n\n Harris and a Brunswick City police officer testified in rebuttal for the State.\n\nHarris admitted that he had previously pleaded guilty to selling marijuana. He also\n\ntestified that it was Meders’ wife Sherry who had told him where the murder\n\nweapon was.\n\n The city police officer testified that around 3:30 a.m. on October 14, 1987,\n\nhe saw a vehicle speeding about a quarter mile from Meders’ house, and he later\n\nlocated that vehicle at Meders’ house. After he stopped in front of the house\n\nMeders came out to see “what was wrong.” The officer asked Meders if he had\n\nbeen driving the vehicle, and Meders, who was acting “very, very nervous,” told\n\nthe officer that he had just driven it back from the Amoco station where he had\n\ncalled his girlfriend, and that he was nervous because his wife “would kill him” if\n\nshe found out that he had a girlfriend.\n\n 4. The Closing Arguments\n\n The State waived its opening argument to the jury but reserved the right to\n\nconclude. Defense counsel argued in closing that the State had allowed Harris,\n\nArnold, and Creel to “design its case,” and he pointed out inconsistencies between\n\ntheir testimonies. He told the jury that he didn’t believe the “Arnold-Creel-Harris\n\nversion of this case speaks the truth” and argued that Harris planted the murder\n\nweapon under Meders’ bed.\n\n\n\n 18\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 19 of 44\n\n\n The State told the jurors in its closing argument that they would have to\n\njudge the credibility of the witnesses, and that “Randy Harris, Bill Arnold, Greg\n\nCreel, [and] the police officers all told the same story all the way down the line\n\nfrom day one.” It argued that Meders, his wife, and Martin had made up their\n\nstories about a year after the incident. And it noted that Meders had never\n\nexplained what he did in the “twenty-five minute[ ]” gap between leaving the\n\nShady Acres Trailer Park and arriving at his house. The State argued that what he\n\nhad done was stop by the Best Western and tell Harris what he had done, just as\n\nHarris had recounted to the jury. The State pointed out that Meders had several\n\nopportunities to tell the police what he knew about the crime, but he failed to do so\n\nuntil more than a year after the murder — unlike Harris, Arnold, and Creel.\n\n 5. The Jury Verdict and Sentence\n\n During its deliberations, the jury asked six questions, three of which Meders\n\ndiscusses in his briefs to this Court:\n\n During the execution of the first search warrant, was the bedroom\n searched, if so was the waterbed searched?\n Can fingerprints be taken and if so were they taken on the waterbed\n mattress??\n [Were] there any reports filed on the incident of the truck, on Ga Hwy\n 303, [r]eported between the day after or between then and now, being\n shot at??\n\nThe court told the jury that it could not “respond to you in any regard concerning\n\nthe evidence in this case,” and that the jury must base all of its findings on the\n\n\n 19\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 20 of 44\n\n\nevidence that had been presented to it. After two hours of deliberations, the jury\n\nreturned a guilty verdict on the charges of malice murder and armed robbery.\n\nMeders was sentenced to death for the murder offense and to a consecutive life\n\nsentence for the armed robbery offense. (There are no sentence stage issues in this\n\nappeal.)\n\n C. The Direct Appeal and Remand Proceedings\n\n Meders appealed his convictions and sentences to the Georgia Supreme\n\nCourt. See Meders v. State, 389 S.E.2d 320 (Ga. 1990). Although his trial counsel\n\ninitially represented him in the appeal, other counsel appeared for him and filed a\n\nnew brief on his behalf that “raised questions about the effectiveness of trial\n\ncounsel.” Id. at 324. Because the ineffective assistance of trial counsel was raised\n\nfor the first time on appeal by Meders’ new attorney, the Georgia Supreme Court\n\ngranted the State’s request to remand the case to the trial court for a hearing on that\n\nissue. Id. at 325. Before doing so, it rejected all of Meders’ other claims of error.\n\nId. at 321–24.\n\n At the remand hearing Meders contended that his trial counsel was\n\nineffective during the guilt phase for:\n\n [1] failing to use police incident reports found in the prosecutor’s open\n file and failing to develop testimony of the shootings near Highway 303\n that corroborated [his] trial testimony and impeached the testimony of\n the State’s key witnesses; [2] failing to utilize prior inconsistent\n recorded statements of the State’s three eyewitnesses found in the\n prosecutor’s open file; [3] failing to object to the admission of an\n\n 20\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 21 of 44\n\n\n unadjudicated citation for cocaine sales; [and] [4] failing to object to\n the admission and use of food stamps based upon a note in the\n prosecutor’s open file that the food stamps could not be linked to the\n robbery.\n\nThe evidence presented at the hearing included the complete files of the prosecutor\n\nand of Meders’ trial counsel as well as documents from the Glynn County Police\n\nDepartment relating to Meders’ case.\n\n The prosecutor’s file contained pretrial statements from Harris, Arnold, and\n\nCreel, including transcripts of Harris’ October 14, 1987 interview and of Arnold’s\n\nand Creel’s October 15 interviews. There were several inconsistencies between\n\nthose pretrial statements and trial testimony. For example, in their pretrial\n\nstatements Arnold and Creel told the police that they had taken Meders home and\n\npicked him up on the night of October 13, but in their trial testimony they denied\n\ndoing that. Creel’s pretrial statement showed that he told the police he knew\n\nMeders had a gun when Meders went into the Jiffy Store, but he testified at trial\n\nthat he did not know about the gun until Meders actually shot the clerk.\n\n A report prepared by Boyet shows that when the police went to Harris’ body\n\nshop around 11:00 a.m. on October 14, Harris told them that he had not seen\n\nMeders since the night before and he did not say anything about the shooting or\n\nMeders’ involvement in it. But at the police station just over an hour later, Harris\n\ntold the police that Meders had stopped by his motel room around 3:00 to 4:00 that\n\nmorning and told him that he had just “killed a man over $38.” Harris also told the\n\n 21\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 22 of 44\n\n\nofficers that Meders did not say where (that is, in what part of the body) he had\n\nshot the clerk but “just [that] he shot him.” At trial Harris had testified that Meders\n\nstopped by his motel room around 3:15 a.m. and told him that: “I just blowed a\n\nman’s head off over $38.00.”\n\n The pretrial statements also show that Harris told the officers on October 14\n\nthat he had no idea where Meders would keep the murder weapon. Two days later\n\nhe told Boyet that he “had been thinking about it and the only place he could think\n\nof where Meders would have hidden the gun he used was the water bed in\n\nMeders[’] bedroom.” At trial, however, he had testified that Meders’ wife Sherry\n\nhad told him where the gun was located.\n\n The prosecutor’s file also contained two police reports that supported\n\nMeders’ trial testimony about the truck shootings and contradicted the testimony of\n\nArnold, Creel, and Detective Boyet on that subject. One police report stated that\n\naround 12:30 a.m. on October 14, a car passed by the complainant’s house several\n\ntimes and someone in the car “fired a shot” on the last pass. The bullet struck the\n\nwall near the house, missing the truck parked in the driveway “by about a foot.”\n\nThe complainant’s son was Keith Bowen — the same person that Meders testified\n\nhad been in a fight with Arnold and Creel. See supra at 16. The other report stated\n\nthat around 1:30 that same morning, someone “fired a round” at the complainant’s\n\ntruck, and that the complainant “feels that the incident was caused by Larry\n\n\n\n 22\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 23 of 44\n\n\nBrockington and Greig [sic] Creel due to some problems he has had with them in\n\nthe past.”\n\n Finally, the prosecutor’s file also contained a note that stated “[u]nable to\n\ntrace any food coupons to store,” as well as a report by a Glynn County police\n\nofficer stating that Sherry (Meders’ wife) had told the officer that she and Meders\n\nwere legally receiving food stamps. Less favorable to Meders, that same report\n\nindicated that during the first search of Meders’ house the officers had looked\n\n“around the bottom outside area” of the waterbed but not underneath it.\n\n In addition to that evidence, Meders presented twelve witnesses at the\n\nremand hearing.4 His counsel at the hearing questioned several of those witnesses\n\nabout the shootings involving the two trucks and about the witnesses’ relationships\n\nwith Meders, Arnold, or Creel. One witness — the owner of one of the trucks —\n\ntestified that he had a bad relationship with Creel, and another witness testified that\n\nthe officer who took the police report about one of the truck shootings told her that\n\nthe bullet from the truck shooting “was the same type [of] bullet that had killed”\n\nthe Jiffy Store clerk.\n\n Meders’ counsel also questioned Boyet about the police reports and the\n\ninconsistencies between the pretrial statements and the trial testimony of Harris,\n\n\n 4\n Because Meders’ trial counsel was hospitalized shortly before the remand hearing, he\ncould not be called as a witness. Nor could he be called as a witness in the later state habeas\nproceedings because he died before they began.\n\n\n 23\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 24 of 44\n\n\nArnold, and Creel. Boyet confirmed that before the trial he had talked to Arnold\n\nand Creel about the truck shootings and that they both had denied any involvement\n\nin them. Boyet conceded that he was unable to link to the Jiffy Store any of the\n\nfood stamps that were admitted into evidence, he had never testified he could.\n\n No copies of the pretrial statements of Arnold, Creel, or Harris were found\n\nin Meders’ trial counsel’s file. And nothing in his trial counsel’s file suggested\n\nthat he had reviewed those witnesses’ pretrial statements. Nor did his file contain\n\ncopies of the police reports. Based on the evidence presented at the remand\n\nhearing, Meders argued that his trial counsel was ineffective for failing to use the\n\npretrial statements and police reports to corroborate Meders’ testimony and\n\n“undercut the credibility of the [State’s] prime accusers against [him],” and for\n\nfailing to object to the admission of the food stamps and the citation (that was\n\nfound in his wallet) for the sale of cocaine. He contended that those failures\n\nprejudiced him, and he asked for a new trial.\n\n The state trial court ruled that Meders had failed to show that he was\n\nprejudiced by his trial counsel’s alleged deficiencies. As a result, it denied his\n\nclaim that his counsel was ineffective during the guilt phase of his trial. The\n\nGeorgia Supreme Court affirmed. Meders v. State, 411 S.E.2d 491 (Ga. 1992). As\n\nto Meders’ ineffective assistance claim, the Georgia Supreme Court’s ruling stated\n\nin its entirety: “The trial court’s nine-page order persuasively demonstrates that\n\n\n\n 24\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 25 of 44\n\n\nMeders has failed to overcome the strong presumption that Meders’ trial counsel\n\nperformed effectively.” Id. at 492 (quotation marks omitted). The United States\n\nSupreme Court denied Meders’ petition for a writ of certiorari. Meders v. Georgia,\n\n506 U.S. 837, 113 S. Ct. 114 (1992). That ended the direct appeal.\n\n D. The State Habeas Proceedings\n\n A couple of years later, in April 1994, Meders filed a state habeas petition.\n\nAfter conducting evidentiary hearings, the state habeas court granted relief on\n\nMeders’ claim alleging ineffective assistance of counsel at the guilt phase, but it\n\ndenied relief on his other claims. The State and Meders both appealed. The\n\nGeorgia Supreme Court reversed the grant of relief on Meders’ ineffective\n\nassistance claim, explaining that the claim was procedurally barred because it had\n\nalready been litigated on the merits in the direct appeal. Schofield v. Meders, 632\n\nS.E.2d 369, 372 (Ga. 2006); see id. at 373 (“The record in this case clearly\n\nestablishes that the habeas court granted relief on claims that had been raised in\n\nessentially the identical form in the hearing held on remand to the trial court.”). It\n\naffirmed the state habeas court’s denial of relief on the other claims and reinstated\n\nMeders’ convictions and sentences. Id. at 372.\n\n E. The Federal Habeas Proceedings\n\n Meders filed a 28 U.S.C. § 2254 petition in July 2007 and an amended\n\npetition in January 2012. The district court ruled that Meders’ trial counsel’s\n\n\n\n 25\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 26 of 44\n\n\nperformance at the guilt phase was deficient but concluded that the trial court’s\n\nruling on remand in the direct appeal that Meders could not establish prejudice was\n\nnot an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104\n\nS. Ct. 2052 (1984). See 28 U.S.C. § 2254(d)(1). On that basis it denied his\n\npetition. Meders later moved for a certificate of appealability on several claims,\n\nand the district court granted one on a single general issue: whether Meders’ trial\n\ncounsel was ineffective during the guilt phase of his trial.\n\n II. DISCUSSION\n\n For a third of a century it has been established that counsel does not render\n\nineffective assistance unless he performs outside “the wide range of reasonable\n\nprofessional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even\n\nthen, the claim is not established and no relief is due unless the petitioner\n\naffirmatively proves that the errors of counsel had not just “some conceivable\n\neffect on the outcome of the proceeding” but “that they actually had an adverse\n\neffect on the defense.” Id. at 693, 104 S. Ct. at 2067.\n\n As for how adverse, and how likely, the effect of the attorney’s errors must\n\nbe: “The defendant must show that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent. A reasonable probability is a probability sufficient to undermine\n\nconfidence in the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harrington v.\n\n\n\n 26\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 27 of 44\n\n\nRichter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (“The likelihood of a\n\ndifferent result must be substantial, not just conceivable.”).\n\n As difficult as it is to prevail on an ineffective assistance prejudice issue in\n\nthe first court to decide it, the Antiterrorism and Effective Death Penalty Act of\n\n1996 makes it even harder to succeed on that issue in a federal habeas proceeding\n\nafter a state court has ruled that the petitioner failed to show prejudice. To obtain\n\nhabeas relief, the petitioner must show that the state court’s ruling “resulted in a\n\ndecision that was contrary to, or involved an unreasonable application of, clearly\n\nestablished Federal law, as determined by the Supreme Court of the United States.”\n\n28 U.S.C. § 2254(d)(1).5 That is a highly deferential standard that is intentionally\n\ndifficult to meet. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786; Trepal v.\n\nSec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012); see also White v.\n\nWheeler, 577 U.S. __, 136 S. Ct. 456, 460 (2015) (“This Court, time and again, has\n\ninstructed that AEDPA, by setting forth necessary predicates before state-court\n\njudgments may be set aside, erects a formidable barrier to federal habeas relief for\n\nprisoners whose claims have been adjudicated in state court.”) (quotation marks\n\nomitted).\n\n\n\n 5\n A petitioner may, of course, also prevail under AEDPA by showing that the state\ncourt’s ruling “resulted in a decision that was based on an unreasonable determination of the\nfacts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).\nBecause Meders makes no argument under that alternative provision, we will not discuss it\nfurther.\n\n\n 27\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 28 of 44\n\n\n Under AEDPA, error is not enough; even clear error is not enough. Virginia\n\nv. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s\n\ndecision to be an unreasonable application of this Court’s case law, the ruling must\n\nbe objectively unreasonable, not merely wrong; even clear error will not suffice.”)\n\n(quotation marks omitted). To overcome AEDPA deference under § 2254(d)(1),\n\nthe petitioner must “show that the state court’s ruling . . . was so lacking in\n\njustification that there was an error well understood and comprehended in existing\n\nlaw beyond any possibility for fairminded disagreement.” Id. “[I]f some\n\nfairminded jurists could agree with the state court’s decision, although others\n\nmight disagree, federal habeas relief must be denied.” Holsey v. Warden, Ga.\n\nDiagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quotation marks\n\nomitted).\n\n The Georgia Supreme Court denied Meders’ guilt stage ineffective\n\nassistance of counsel claim on the merits. See Meders, 411 S.E.2d at 492. It did\n\nso in the appeal from the order entered by the state trial court on remand during the\n\ndirect appeal. See id. Because it affirmed on the basis of the trial court’s order,\n\nsee id, we “look through” the Georgia Supreme Court’s decision to that trial court\n\norder. See Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).\n\n Meders concedes that § 2254(d)(1) deference is due the state trial court’s\n\nruling on remand regarding prejudice. See, e.g., Appellant’s Br. at 33 (“The issue\n\n\n\n 28\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 29 of 44\n\n\nin this case, then, is whether the state court’s conclusion that Meders failed to\n\nprove sufficient prejudice involved an unreasonable application of Strickland, as\n\ndefined by § 2254(d)(1).”). The measure of deference is whether “the state court’s\n\nruling . . . was so lacking in justification that there was an error well understood\n\nand comprehended in existing law beyond any possibility for fairminded\n\ndisagreement.” LeBlanc, 137 S. Ct. at 1728 (citation omitted); Holsey, 694 F.3d at\n\n1257.\n\n “Deciding whether a state court’s decision involved an unreasonable\n\napplication of federal law . . . requires the federal habeas court to train its attention\n\non the particular reasons — both legal and factual — why state courts rejected a\n\nstate prisoner’s federal claims, and to give appropriate deference to that decision.”\n\nWilson, 138 S. Ct. at 1191–92 (quotation marks and citations omitted). That does\n\nnot mean we are to flyspeck the state court order or grade it. What it means is we\n\nare to focus not merely on the bottom line ruling of the decision but on the reasons,\n\nif any, given for it. The bottom line here is the ruling by the state trial court that\n\ncounsel’s failure to use certain pretrial statements of witnesses and police reports\n\ncoupled with their failure to object to certain evidence did not amount to\n\nineffective assistance of counsel. The reason the state court gave for that ruling is\n\nthat there was no reasonable probability of a different result if counsel had acted as\n\nMeders claimed they should have. The reason there wasn’t, the court explained, is\n\n\n\n 29\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 30 of 44\n\n\nthat the evidence counsel failed to present was cumulative and outweighed by the\n\nstrong evidence of guilt, and the objections that they failed to make would have\n\nbeen futile or otherwise would have made no difference anyway. See Strickland,\n\n466 U.S. at 692–96, 104 S. Ct. at 2066–69.\n\n Notwithstanding his concession that deference is due, at other points in his\n\nbriefs Meders appears to implicitly argue either that deference is not due, or\n\nperhaps that deference does not mean much. He does so by engaging in a line-by-\n\nline critique of the state court’s reasoning, pointing out evidence that was not\n\nmentioned in the state court’s order or was not given the weight he feels it\n\ndeserves. See, e.g., Appellant’s Reply Br. at 7–8 (taking issue with how the state\n\ntrial court summarized the evidence against him); id. at 16 (arguing that the state\n\ntrial court’s order “gives no indication” that it considered facts brought to light by\n\nthe impeachment evidence presented at the remand hearing); Appellant’s Br. at 36\n\n(arguing that the court focused on the wrong evidence and “failed to consider the\n\nmost compelling issues framed by the evidence”). That is not the proper approach.\n\n This Court has stressed that in applying AEDPA deference federal courts are\n\nnot to take a magnifying glass to the state court opinion or grade the quality of it.\n\nWe have emphasized time and again that we are “not to read state court opinions as\n\nif we were grading papers.” Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,\n\n1055 (11th Cir. 2017) (quotation marks omitted); see also, e.g., Jones v. Sec’y, Fla.\n\n\n\n 30\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 31 of 44\n\n\nDep’t. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (“[W]e have cautioned that\n\noveremphasis on the language of a state court’s rationale would lead to a grading\n\npapers approach that is outmoded in the post-AEDPA era.”) (quotation marks\n\nomitted); Holland v. Florida, 775 F.3d 1294, 1311 (11th Cir. 2014) (“We do not\n\nread state court opinions as if we were grading papers, and must apply AEDPA\n\ndeference absent a conspicuous misapplication of Supreme Court precedent.”)\n\n(quotation marks omitted); cf. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,\n\n1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts\n\nspell out their rationale would run counter to the main thrust of [AEDPA].”).\n\n We have explicitly rejected the proposition that a state court decision\n\ninvolves an unreasonable application of federal law and is not entitled to deference\n\nunless that court’s opinion on its face “shows its work” by explicitly mentioning\n\n“all relevant circumstances” that the defendant argues in support of relief. See Lee\n\nv. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013). That\n\nproposition captures Meders’ position. Our rejection of it follows the Supreme\n\nCourt’s teaching that “readiness to attribute error” to a state court decision is\n\nincompatible with both “the presumption that state courts know and follow the\n\nlaw” and AEDPA’s “highly deferential standard for evaluating state-court rulings,\n\nwhich demands that state-court decisions be given the benefit of the doubt.”\n\n\n\n\n 31\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 32 of 44\n\n\nWoodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (citation\n\nomitted) (internal quotation marks omitted).\n\n The Supreme Court in Wilson held that presumptively we should look\n\nthrough a silent higher state court decision to an explicitly reasoned lower court\n\none in determining the reasons for the decision. Wilson, 138 S. Ct. at 1193–96.\n\nBut Wilson was about which state court decision we are to look at if the lower state\n\ncourt gives reasons and the higher state court does not. It was not about the\n\nspecificity or thoroughness with which state courts must spell out their reasoning\n\nto be entitled to AEDPA deference or the level of scrutiny that we are to apply to\n\nthe reasons that they give. Our no-grading-papers, anti-flyspecking rule remains\n\nthe law of the circuit. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475\n\nF.3d 1228, 1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is one\n\nthing, extrapolating from its implications a holding on an issue that was not before\n\nthat Court in order to upend settled circuit law is another thing.”); Garrett v. Univ.\n\nof Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“While\n\nan intervening decision of the Supreme Court can overrule the decision of a prior\n\npanel of our court, the Supreme Court decision must be clearly on point.”).\n\n After all, the Supreme Court itself has also held that “federal courts have no\n\nauthority to impose mandatory opinion-writing standards on state courts.” Johnson\n\nv. Williams, 568 U.S. 289, 300, 133 S. Ct. 1088, 1095 (2013). In so holding, the\n\n\n\n 32\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 33 of 44\n\n\nCourt cautioned that “[t]he caseloads shouldered by many state appellate courts are\n\nvery heavy, and the opinions issued by these courts must be read with that factor in\n\nmind.” Id. at 300, 133 S. Ct. at 1095–96 (footnote omitted). Not only that, but the\n\nSupreme Court has held that AEDPA deference is due even to those state court\n\nrulings for which no rationale or reasoning at all is given. See Harrington, 562\n\nU.S. at 100, 131 S. Ct. at 785. It would be irrational to afford deference to a\n\ndecision with no stated explanation but not afford deference to one that states\n\nreasons, albeit not as thoroughly as it could have.\n\n Only the clearest indication that Wilson overruled the Supreme Court’s\n\nprevious decisions, such as Johnson, would warrant ignoring those decisions, and\n\nthere is no indication at all that Wilson did so. See Hohn v. United States, 524\n\nU.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding\n\nprecedent until we see fit to reconsider them, regardless of whether subsequent\n\ncases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521\n\nU.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do\n\nnot hold, that other courts should conclude our more recent cases have, by\n\nimplication, overruled an earlier precedent.”); Rodriguez de Quijas v.\n\nShearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989)\n\n(“If a precedent of this Court has direct application in a case, yet appears to rest on\n\nreasons rejected in some other line of decisions, the Court of Appeals should\n\n\n\n 33\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 34 of 44\n\n\nfollow the case which directly controls, leaving to this Court the prerogative of\n\noverruling its own decisions.”).\n\n Applying AEDPA deference to the state trial court decision that Meders\n\nfailed to establish prejudice for Strickland purposes, the question is whether every\n\nfairminded jurist would conclude that prejudice has been established. See\n\nWilliamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (“To\n\nestablish prejudice [where AEDPA applies, a petitioner] has to show that every\n\nfair-minded jurist would conclude that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent.”) (quotation marks omitted). So long as any fairminded jurist could\n\nagree with the state court’s ruling, we must deny federal habeas relief. With that\n\nstandard of deference in mind, we turn to the facts established at trial and in the\n\nevidentiary hearing in the state trial court on remand that are relevant to the\n\nineffective assistance of counsel claims.\n\n A. Failure to Use the Pretrial Statements and the Police Reports\n\n Meders contends that his trial counsel was ineffective for failing to use\n\ncertain pretrial statements and police reports to impeach several of the State’s\n\nwitnesses, and that the state trial court’s determination that he had failed to\n\nestablish prejudice “reflects a profound misvaluation of the impeachment material\n\ntrial counsel failed to use.” The State, while acknowledging that new evidence\n\n\n\n 34\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 35 of 44\n\n\ndoes call into question “certain areas of credibility” of some of its witnesses,\n\ncontends that evidence is not enough to repair Meders’ credibility or to refute the\n\noverwhelming evidence showing his guilt.\n\n As the State recognizes, when read against their testimony at trial, the\n\npretrial statements and the police reports weaken the credibility of Harris, Creel,\n\nArnold, and Detective Boyet. Harris, for example, first told the police around\n\n11:00 a.m. on October 14 that he hadn’t seen Meders since the previous night. An\n\nhour later he told the police that between 3:00 to 4:00 that morning Meders had\n\nstopped by his motel room and told him he shot the store clerk, but said that\n\nMeders had not mentioned that he shot the clerk in the head. But Harris later\n\ntestified at trial that when Meders had stopped by his motel room, Meders told him\n\nhe had shot the store clerk in the head. He also first told the police he didn’t know\n\nwhere the murder weapon was located, then told them two days later that he had\n\nremembered Meders liked to hide things under his waterbed “where they would\n\nnever be found,” and finally testified at trial that Sherry Meders had told him that\n\nthe gun was under the waterbed.\n\n Although it’s clear that Harris made inconsistent statements, it’s not clear\n\nthat he was lying about Meders confessing that he had just “blowed a man’s head\n\noff over $38.00.” Harris testified that Meders took $38 — no more, no less —\n\nfrom the Jiffy Store. But there is no evidence that Arnold or Creel knew how\n\n\n\n 35\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 36 of 44\n\n\nmuch money was taken from the Jiffy Store. And Meders admitted at trial that he\n\nhad taken the money from the cash register and that nothing was said in the car\n\nfrom “the time we left the store till we reached Shady Acres Trailer Park.” So\n\nArnold and Creel could not have told Harris how much money Meders took\n\nbecause they did not know how much money he took. As a result, either Meders\n\ntold Harris that he took $38 from the store (and lied to Boyet when denying that) or\n\nHarris miraculously guessed the precise amount of cash that Meders stole from the\n\nstore.\n\n In a similar vein, Harris’ incentive to lie about who committed the robbery-\n\nmurder was much weaker than that of Meders, Arnold, or Creel. Arnold and Creel\n\nadmitted that they were present at the scene of the murder, putting them in some\n\njeopardy of being convicted of that crime. Harris, by contrast, undisputedly was\n\nnot present during the crime, nor was there any evidence suggesting that he knew it\n\nwas going to happen. No matter whose version of the events the jury found was\n\ntrue, Harris did not face conviction for the capital crime of robbery-murder and a\n\ndeath sentence. And a rational jury in deciding whether to believe him or Meders\n\nwould take into account that he had far less incentive to lie than Meders, who was\n\nfacing a death sentence, did.\n\n Still, Harris could have been impeached with the evidence Meders’ trial\n\ncounsel did not present. And Arnold, Creel, and Detective Boyet also could have\n\n\n\n 36\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 37 of 44\n\n\nbeen impeached with the evidence that was not presented. Arnold’s and Creel’s\n\npretrial statements contradicted some of their testimony at trial. The police reports\n\nfrom the prosecutor’s file not only undermined the testimonies of Arnold, Creel,\n\nand Boyet about the truck shootings but also supported Meders’ testimony about\n\nthose shootings. And the jury’s question about whether any reports were filed\n\nabout the truck shootings suggests that it was interested in that subject. The jury\n\nquestions about whether the waterbed was searched when officers first searched\n\nthe house and whether fingerprints were lifted from it suggest that the jury was\n\nalso interested in that.\n\n Despite all of that, there was still undisputed evidence in the record pointing\n\nto Meders’ guilt. For example, the two bullets that struck the victim were fired\n\nfrom the Dan Wesson .357 Magnum revolver that was found under Meders’\n\nwaterbed. Meders even confirmed at trial that the .357 Magnum “was the weapon\n\nthat was used to kill the [store clerk].” He acknowledged that he owned that\n\nweapon, and there was no evidence that anyone had planted it under his waterbed.\n\n The undisputed facts about what happened to the proceeds of the robbery are\n\nstrong evidence of Meders’ guilt. After all, he admitted to the jury that he was the\n\none who took the money from the Jiffy Store: “I got the money out of the cash\n\nregister.” And he was the only one who kept any of that money. The Jiffy Store’s\n\nbait money was found in his possession. Meders admitted that two of the three bait\n\n\n\n 37\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 38 of 44\n\n\nmoney bills were found in his wallet. The third bait bill was found on his\n\ntelevision. If, as Meders claimed in his testimony, Arnold actually shot the store\n\nclerk during the robbery, it seems highly unlikely that Arnold would not have\n\nended up with any of the stolen money. Meders testified that after the crime, he\n\ninsisted that Arnold keep the firearm that belonged to Meders because he “didn’t\n\nwant it back,” but he never explained why he didn’t insist that Arnold take the\n\ncash, which was the proceeds of the crime.\n\n That the murder weapon was found under Meders’ waterbed evidences his\n\nguilt. And even if we assume that it was put there by someone other than Meders,\n\nas he implied at trial, the fact remains that he admitted to owning the weapon that\n\nfired the bullets that killed Anderson. He admitted to being present at the scene of\n\nthe crime. And he admitted to having in his possession all of the money taken\n\nfrom the cash register. And although the evidence that trial counsel did not present\n\nwould have been helpful in impeachment, none of it substantially undermined the\n\nproof of Meders’ guilt. Whether Arnold and Creel shot at the trucks and whether\n\nthey dropped Meders off at his house at some point before the murder does not\n\nchange the undisputed facts that point to Meders’ guilt. The evidence establishing\n\nthat Meders committed the murder remains strong.\n\n Even though the police reports corroborated some of Meders’ testimony, the\n\nreports would not have repaired his credibility. Meders lied to the police several\n\n\n\n 38\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 39 of 44\n\n\ndifferent times, and he acknowledged as much at trial. He testified that he told the\n\nofficer who pulled up at his house after the shooting that he had just gone to call\n\nhis girlfriend and he was nervous because his wife would kill him if she found out.\n\nThat was a lie, as Meders admitted at trial. And when police officers questioned\n\nhim at his house hours after the murder, he told them he did not know anything\n\nabout the shooting. That was also a lie, as Meders admitted at trial. Hours later at\n\nthe police station, he again told Detective Boyet he knew nothing about the\n\nshooting. Same lie retold, as Meders later admitted at trial.\n\n A year and a month after his arrest Meders reversed a year-long course of\n\nlies and admitted to Boyet that he was with Arnold and Creel at the Jiffy Store at\n\nthe time of the murder. He attempted to explain away his previous lies about that\n\nby saying he had simply been following Harris’ advice to deny any involvement in\n\nthe crime.6 He was the only one out of the three men involved in the crime who\n\ninitially denied having any knowledge of it to persist in that lie for more than a\n\nyear. Meders also lied to the police about the murder weapon. When asked at the\n\n\n 6\n That Meders would follow Harris’ advice is hard to square with his purported belief that\nHarris was out to get him for allegedly having an affair with Harris’ wife.\n Meders argues that in a contest of credibility a jury should not believe Harris’ testimony\nincriminating him because Harris initially failed to mention to the police anything about Meders’\ninvolvement in the murder but an hour later told them that Meders said he had “killed a man over\n$38.” If Harris’ “lie,” which he corrected within an hour, supplies “good reason to doubt” his\ntestimony, Meders’ lies about having no knowledge of the crime, which he failed to correct for\n13 months, give bountiful reason to doubt Meders’ testimony and decide the contest of\ncredibility in favor of Harris.\n\n\n 39\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 40 of 44\n\n\npolice station the day of the robbery and murder what firearms he owned, he listed\n\nseveral guns, failing to mention only one –– his Dan Wesson .357 Magnum that\n\nwas the murder weapon.\n\n Meders has failed to show that had his trial counsel used all of the\n\nimpeachment material during the guilt phase of his trial, every fairminded jurist\n\nwould conclude that there is a “substantial, not just conceivable,” likelihood that\n\nthe result of his trial would have been different. See Harrington, 562 U.S. at 112,\n\n131 S. Ct. at 792. We are not convinced that every reasonable jurist’s confidence\n\nin the outcome of the trial would have been undermined. See Strickland, 466 U.S.\n\nat 687, 104 S. Ct. at 2064. The state trial court’s prejudice determination was not\n\nunreasonable.\n\n B. Failure to Object to the Food Stamps and the Cocaine Citation\n\n Meders also argues that trial counsel’s failure to object to the introduction of\n\nevidence that he had food stamps or to argue to the jury that they could not be\n\nlinked to the robbery also amounted to ineffective assistance. The Jiffy Store\n\nmanager testified that food stamps were taken from the store, although she could\n\nnot say how many food stamps were taken. And on the witness stand, Meders\n\nconceded that food stamps were found in his jacket just hours after the crime. In\n\naddition, Creel testified that after they got to the trailer park minutes after the\n\n\n\n\n 40\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 41 of 44\n\n\nshooting, Meders tried to give him and Arnold some of the food stamps that he had\n\ntaken from the store.\n\n Given all of that testimony, there was enough evidence to link the food\n\nstamps to the robbery. They were admissible and an objection to them would have\n\nbeen futile. The state court found that counsel’s failure to object to the\n\nintroduction of the food stamps was neither deficient performance nor prejudicial.\n\nThat is not only reasonable but also correct. It is not ineffective assistance of\n\ncounsel to fail to make an objection that is not due to be sustained. See Green v.\n\nGeorgia, 882 F.3d 978, 987 (11th Cir. 2018) (holding that the petitioner could not\n\npossibly have suffered Strickland prejudice where the objection that was not made\n\nwould have been futile); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.\n\n2017) (stating that “an attorney will not be held to have performed deficiently for\n\nfailing to perform a futile act, one that would not have gotten his client any relief”).\n\n As for counsel’s failure to argue to the jury that the food stamps found in\n\nMeders’ possession had not been positively connected to the robbery, it is not\n\nprejudicial for an attorney to fail to point out to the jury something that is obvious\n\nfrom the evidence. No one said that those food stamps could be traced to the store\n\nthat had been robbed. Reasonable jurists could find, as the state court did, that\n\nMeders has failed to show that if counsel had objected to the food stamps or argued\n\nthat they had not been identified as the ones taken in the robbery, Meders would\n\n\n\n 41\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 42 of 44\n\n\nhave been acquitted. Cf. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1311–\n\n12 (11th Cir. 2012) (holding that the district court should have deferred to the state\n\ncourt’s finding that “credited the testimony indicating that the food stamps found\n\nin [the defendant’s] room belonged to [the victim]” despite the fact that “the\n\nevidence did not establish with certainty that the food stamps found in [the\n\ndefendant’s] room belonged to [the victim]”).\n\n The state court rejected Meders’ ineffective assistance of counsel claim\n\ninvolving the failure to object to the admission of the cocaine citation seized from\n\nhis wallet on the ground that he had failed to establish prejudice. Although that\n\ncitation was admitted as evidence and given to the jury (along with other\n\ndocumentary evidence), it was never mentioned during the trial. Not once. Not\n\nonly that, but other evidence established that Meders had used and purchased\n\ndrugs. He admitted to the jury that he “smoked a little bit of dope” (marijuana)\n\nduring the afternoon of October 13, 1987. He also told the jury that he “had been\n\neating, or, well, what you call eating, had been taking some of them Valiums that\n\nday, earlier that day.” They were 10 milligram Valiums, he said, helpfully\n\ninforming everyone from the witness stand that a 10 milligram Valium “is actually\n\nthe biggest Valium you can get.” Meders also testified that he purchased drugs,\n\nexplaining that “any time I bought dope, I bought it from [Harris].” Meders’ own\n\n\n\n\n 42\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 43 of 44\n\n\nadmissions that he used drugs were backed up by the testimony of other witnesses\n\nthat he did.\n\n Based on the other evidence presented, the jury could reasonably conclude\n\nthat Meders’ drug use was the cause of the debt he allegedly owed. And even if\n\nhis drug use was not the cause of it, his debt was not “a critical fact for the\n\ndetermination of guilt,” anyway, as the district court noted. All of this means that\n\na fairminded jurist could agree with the state trial court’s ruling that Meders failed\n\nto show Strickland prejudice from counsel’s failure to object to the admission of\n\nthe cocaine citation. Even considering any purported cumulative effect from the\n\nadmission of the food stamps and cocaine citation and trial counsel’s failure to\n\npresent the impeachment evidence, a fairminded jurist could still conclude that it\n\nwas insufficient to undermine his confidence in Meders’ trial. See Reed v. Sec’y,\n\nFla. Dep’t of Corr., 767 F.3d 1252, 1263–64 (11th Cir. 2014).\n\n III. CONCLUSION\n\n Because our review is deferential, we need not determine whether our\n\ndecision would be the same if we were conducting a de novo review, though we\n\nrecognize that a different standard of review would make the questions in this case\n\ncloser ones. Looking through the AEDPA lens, we conclude that a fairminded\n\njurist could agree with the state trial court’s decision. Or put another way, not\n\nevery reasonable jurist would conclude that the state trial court’s decision was\n\n\n\n 43\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 44 of 44\n\n\ncontrary to or an unreasonable application of Supreme Court precedent. And for\n\nthat reason, the district court did not err in denying Meders’ petition for a writ of\n\nhabeas corpus.\n\n AFFIRMED.\n\n\n\n\n 44", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356233/", "author_raw": "ED CARNES, Chief Judge"}]}	CARNES	MARCUS	NEWSOM	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4578980/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 14-14178; 15-14734\n ________________________\n\n D.C. Docket No. 2:07-cv-00090-LGW-JEG\n\n\n\nJIMMY FLETCHER MEDERS,\n\n Petitioner-Appellant,\n\n versus\n\nWARDEN, GEORGIA DIAGNOSTIC PRISON,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n ________________________\n\n On Petition for Rehearing by the Panel\n\n ––––––––––––––––––––––––\n\n (January 4, 2019)\n\nBefore ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.\n\nED CARNES, Chief Judge:\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 2 of 44\n\n\n The Appellant, Jimmy Fletcher Meders, filed a petition for rehearing en\n\nbanc, which under our rules also counts as a petition for panel rehearing. See 11th\n\nCir. R. 35, I.O.P. 2 (“A petition for rehearing en banc will also be treated as a\n\npetition for rehearing before the original panel.”); Cadet v. Fla. Dep’t of Corr., 853\n\nF.3d 1216, 1218 (11th Cir. 2017) (“At least until an order granting or denying the\n\npetition for rehearing en banc is issued, a panel retains authority to modify its\n\ndecision and opinion.”).\n\n The petition, insofar as it requests panel rehearing, is granted to the extent\n\nthat we vacate our earlier opinion, Meders v. Warden, Ga. Diagnostic Prison, 900\n\nF.3d 1330 (11th Cir. 2018), and issue this one in its place.\n\n The petition for rehearing en banc remains pending. In light of the issuance\n\nof this revised panel opinion, the Appellant is granted 21 days to file a supplement\n\nto his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P.\n\n40(a)(4)(C); cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1188\n\nn.14 (11th Cir. 2018). He is not required to file a supplement. If he does file one\n\nand the Court desires a response from the Appellee, one will be requested.\n\n Our revised opinion follows:1\n\n\n\n 1\n Our only revisions involve Part II of the opinion. We have removed the seven\nparagraphs of the former opinion beginning with: “The Georgia Supreme Court denied Meders’\n. . .” and ending with “hearing in the state trial court on remand.” In their place we have added\nthe 10 paragraphs beginning with: “The Georgia Supreme Court denied Meders’ . . .” and\nending with “that are relevant to the ineffective assistance of counsel claims.”\n\n\n 2\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 3 of 44\n\n\n Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C. § 2254\n\npetition in the Southern District of Georgia raising 18 claims. After the district\n\ncourt denied his petition, Meders moved for a certificate of appealability on several\n\nof his claims. The district court granted that motion only as to his claim alleging\n\nthat trial counsel was ineffective at the guilt phase of his trial. This is his appeal.\n\n I. BACKGROUND\n\n A. Facts\n\n The facts that follow in these two paragraphs are not disputed. On October\n\n13, 1987, Meders went to help his boss, Randy Harris, fix a car at Harris’ house.\n\nBill Arnold and Greg Creel later arrived at the house. Arnold is Harris’ cousin,\n\nand Creel is Arnold’s friend. Meders, Harris, Arnold, and Creel spent the\n\nafternoon drinking beer and liquor. The four of them went to a Best Western motel\n\nlater that evening, where Harris had rented a room for a young woman with whom\n\nhe was having an extramarital affair. Meders, Arnold, and Creel left the motel\n\nlater that night.\n\n Around 2:35 the next morning (October 14), the three men stopped by a\n\nJiffy Store. Don Anderson, the store clerk, was shot twice — once in the chest,\n\nonce in the head — and he died. The weapon used in the shooting was a Dan\n\nWesson .357 Magnum revolver. Meders took between $31 and $38 from the cash\n\nregister. Included in the cash taken were two $1 bills and a $5 bill that the store\n\n\n\n 3\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 4 of 44\n\n\nmanager had planted as bait money — she had written down the three bills’ serial\n\nnumbers and kept them in the store’s records so that the money could be identified\n\nif the store was robbed and the money was recovered. That bait money and some\n\nfood stamps were found in Meders’ wallet and in his house after he was arrested\n\nlater that same day. The murder weapon was found under his bed two days later.\n\n B. The Trial\n\n Meders was indicted in Georgia state court in December 1987 for the murder\n\nand armed robbery of Anderson, the store clerk. The case proceeded to a jury trial.\n\n 1. The State’s Witnesses\n\n Because the claim Meders presses in this Court involves the trial testimony\n\nof several of the State’s witnesses, we recount their testimony in some detail.\n\n The State first called Harris to the stand. He testified that he spent the\n\nafternoon of October 13 drinking with Meders, Arnold, and Creel. He paid Meders\n\nabout $200 for his work on a car, and while they were sitting around drinking and\n\ntalking, Meders kept mentioning that he owed some people in Florida $2,000 for\n\nsome drugs, and that they were “going to come down here and kill him if he didn’t\n\npay them.”\n\n Harris testified that later that evening all four men went to a Best Western\n\nmotel. They continued to drink, “smoked a joint or two,” and sat around talking in\n\nthe motel room. Meders, Arnold, and Creel left the motel around 8:30 p.m. but\n\n\n\n 4\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 5 of 44\n\n\nMeders returned to it around 3:15 a.m. After he did so, according to Harris,\n\nMeders pulled out a revolver and told him: “I just blowed a man’s head off over\n\n$38.00.” Harris thought he was joking, so Meders threw some cash and some\n\n“little white pieces of paper” about “the same size [as] a dollar bill” on the bed.\n\nMeders also opened the revolver’s chambers and dumped the bullets on the bed.\n\nHarris said that two of the bullets had been “freshly fired.” He testified that\n\nMeders picked up the cash and the pieces of paper, put them back in his pocket,\n\nand left the motel.\n\n Harris testified that around that same time, Arnold called his motel room and\n\nasked Harris to pick up Creel and him from a trailer park. Harris drove Creel’s\n\ntruck to the trailer park, picked up both of them, and took them to Harris’ house.\n\nAfter arriving at his house around 4:00 or 5:00 a.m., Harris urged the two of them\n\nto go to the police and report what had happened. He testified that the three of\n\nthem talked for about an hour and then all three went to sleep at his house. Around\n\n9:00 a.m., Harris woke up and went to his shop; the police questioned him there\n\nand then took him to the police station for more questioning.\n\n Creel testified next for the State. He stated that he, Harris, Arnold, and\n\nMeders had spent the afternoon of October 13 drinking before going to the Best\n\nWestern later that evening. After spending a few hours in the motel room, he,\n\nArnold, and Meders left and went riding around, stopping at a couple of bars.\n\n\n\n 5\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 6 of 44\n\n\nArnold was driving, Meders was in the passenger seat, and Creel was in the back\n\nseat. They later stopped at a Jiffy Store because Creel was hungry. He testified\n\nthat both he and Meders got out of the car and went into the store. Once inside,\n\nCreel grabbed a Yoo-hoo and a package of sausage and biscuits. While he was\n\nheating up his sausage and biscuits in a microwave in the back of the store, he\n\nheard a gunshot. He turned around and saw the store clerk falling against the wall\n\nand Meders facing the wounded clerk.\n\n Creel testified that he “tore out” of the store, and as he was running out, he\n\nheard a second gunshot. He exited the store, jumped in the back seat of the car,\n\nand told Arnold to “go” because Meders had “just shot a man.” He recounted how\n\nMeders had run out of the store, jumped in the front passenger seat of the car, and\n\npointed his gun at Arnold and Creel. Arnold drove to Shady Acres, a trailer park,\n\nwhere he and Creel got out. Meders got in the driver’s seat, and Arnold told\n\nMeders “to never come around him again.” Meders asked Arnold and Creel if they\n\nwanted any of the money or food stamps he had taken from the store. They both\n\nsaid no, that they didn’t want any part of it. Creel and Arnold then walked to one\n\nof the trailers where they called Harris to pick them up. Creel testified that he\n\ndidn’t know Meders until the day before the shooting, that he didn’t know that\n\nMeders had a gun until the shooting, and that he had no idea that Meders was\n\n\n\n\n 6\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 7 of 44\n\n\ngoing to rob the store or shoot the clerk. He also stated that he had given the police\n\ntwo statements about the incident: one on October 15, and one a few weeks later.\n\n On cross-examination Creel confirmed that, after they all were finished\n\ndrinking at Harris’ house, they did not take Meders back to his house but instead\n\nwent to the Best Western. For that reason, Creel thought Meders “must have” had\n\nthe gun on him during the afternoon of October 13. Defense counsel also asked\n\nCreel whether he shot at a couple of trucks while they were riding around that\n\nevening. Creel testified that he did not — that he didn’t even know Meders had a\n\ngun until the shooting inside the store.\n\n The State next presented Arnold, who is Harris’ cousin. For the most part\n\nArnold’s testimony tracked Creel’s. Arnold testified that he had grown up with\n\nCreel and that he had known Meders for about “a year or two” before the shooting.\n\nArnold told how, after the four of them spent the afternoon of October 13 drinking,\n\nthey all went to a room at the Best Western, and later he, Creel, and Meders left\n\n(without Harris) to go riding around. In the early morning hours of October 14,\n\nthey stopped at a Jiffy Store because Creel was hungry and Meders wanted some\n\ncigarettes. After Arnold parked the car, Creel and Meders both went inside the\n\nstore. The next thing Arnold heard was a gunshot, and the next thing he saw was\n\nCreel running out of the store. Then Arnold heard another shot, and Creel jumped\n\nin the car and “hollered that Jimmy [Meders] had just killed that man.” Meders\n\n\n\n 7\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 8 of 44\n\n\nthen jumped in the car, waved his gun around and pointed it at Arnold and Creel,\n\nand told Arnold to drive off and “get away from the store.”\n\n Which Arnold did. He drove them to the Shady Acres Trailer Park, where\n\nhe and Creel got out of the car and refused to take any of the cash Meders had\n\nstolen. Meders got in the driver’s seat and drove off, while Arnold and Creel went\n\ninto a friend’s trailer and called Harris and asked him to pick them up. Arnold\n\ntestified that Harris picked them up and they all went to Harris’ house, where he\n\ntold them that they should go to the police. Instead, the three went to sleep.\n\nArnold went to the police station the next morning, October 15, to give a\n\nstatement.\n\n On cross-examination Arnold testified that he did not take Meders back to\n\nhis house in the hours before the shooting but that they did stop by a bar while they\n\nwere driving around. He stated that no one in the car had “shot at a truck” while\n\nthey were driving around.\n\n Margaret Clements, who was the manager of the Jiffy Store at the time of\n\nthe shooting, was the next witness for the State. She testified that a couple of days\n\nbefore the shooting she had recorded the serial numbers from a $5 bill and two $1\n\nbills, and that those three bills were put in a money clip in the register to use as the\n\nstore’s “bait money.” When the bait money was removed from the register, it\n\nwould trigger a silent alarm. She said that when she went to the store after the\n\n\n\n 8\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 9 of 44\n\n\nshooting, between $31.00 and $38.00 — which included the $7.00 in bait money\n\n— had been taken from the register, but she couldn’t determine how many food\n\nstamps were taken. She also testified that a receipt was left sticking out of the\n\nregister, which showed a transaction for 51 cents at 2:35 a.m. on October 14, 1987.\n\n The State then presented several witnesses who testified about the scene of\n\nthe crime, the evidence related to the crime, and the police department’s\n\ninvestigation of the crime.2 Among them was Charles Byerley, an investigator\n\nwith the county police department, who testified about the evidence found during\n\nthe search of Meders’ house. He and two other officers found a holster containing\n\nseveral rounds of .357 Magnum bullets. They also found a dollar bill that was torn\n\nin half sitting on top of a television in the house. Byerley testified that the torn\n\ndollar bill had the same serial number as one of the $1 bills from the Jiffy Store’s\n\nbait money. He also stated that after Meders was arrested later that day, he had\n\ninventoried Meders’ wallet and found $82 in cash, as well as some food stamps.\n\n\n 2\n Abe Brown, the Glynn County coroner, and David Griffin, the county medical\nexaminer, testified about Anderson’s gunshot wounds and the cause of his death. Charlie\nBeasley from the Glynn County Police Department’s evidence and investigation unit testified\nthat he secured the evidence from the crime scene and a few days later he delivered it to Roger\nParian, a firearms examiner from the Georgia Bureau of Investigation. Parian testified that,\nbased on the evidence from the crime scene, the two .357 Magnum bullets recovered there came\nfrom the Dan Wesson .357 revolver that Beasley had provided to him.\n Greg McMichael, a Glynn County police officer at the time of the shooting, testified that\nwhen he responded to the call at the Jiffy Store, he passed a car with several occupants driving\naway from the location of the Jiffy Store. And Matthew Doering, a detective from the Glynn\nCounty Police Department, testified that on October 14 he found that same car at Meders’ house.\nAfter impounding it, he searched the car and found a “Dandy Sausage Biscuits” wrapper.\n\n\n 9\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 10 of 44\n\n\nThe serial numbers of a $1 bill and a $5 bill from Meders’ wallet matched the\n\nserial numbers of the other $1 bill and the $5 bill from the bait money.3 A Georgia\n\ncitation for the sale of cocaine was also found in Meders’ wallet and it was\n\nadmitted into evidence.\n\n The State called Jack Boyet as its last witness. Boyet was a detective with\n\nthe Glynn County Police Department at the time of the murder. He responded to\n\nthe scene at the Jiffy Store and also went with two other officers to Meders’ house\n\nlater that morning to question him. At the house Boyet told Meders that he had\n\nsome questions about a homicide at the Jiffy Store, and Meders falsely stated that\n\nhe didn’t know anything about it. Boyet then asked Meders whether he had a gun\n\nor knife on him, and Meders admitted that he did. The officers took a “small .22\n\npistol,” which was loaded and had a shell in the chamber, from the right pocket of\n\nhis jacket. They also found 17 food stamps in the left pocket of Meders’ jacket.\n\nAfter reading him his Miranda rights, Boyet asked him if he had any other firearms\n\nin the house, and Meders said he had a .357 revolver. The officers obtained that\n\nfirearm (a fully loaded Ruger Black Hawk .357 revolver) and the .22 pistol and\n\ntook Meders to the station for more questioning.\n\n\n\n\n 3\n Neal Harrell, a special agent with the Georgia Bureau of Investigation, testified that he\nwent with Byerley to Meders’ house around 11:15 a.m. on October 14, and confirmed that he\nand Byerley discovered the evidence that Byerley testified about at trial.\n\n\n 10\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 11 of 44\n\n\n Detective Boyet told the jury that at the police station Meders again stated\n\nthat he didn’t know anything about the robbery-murder and had not gone to the\n\nJiffy Store. He claimed, instead, that he had been at the Best Western and had\n\ngone home around midnight. Boyet then informed Meders that Harris had just\n\ngiven a statement to detectives that Meders had told him that he “had blew a man’s\n\nhead off for $38.00.” Meders denied saying that and told Boyet that Harris was\n\n“trying to get him” because he thought Meders was having an affair with his wife.\n\nAfter Boyet finished interviewing him, Meders was arrested.\n\n Boyet testified that on October 16, Harris came to the police station and said\n\nthat he “had received information” that the gun used in the shooting was under\n\nMeders’ waterbed. Boyet executed a search warrant at Meders’ house that day and\n\nfound a Dan Wesson .357 Magnum revolver “under the center of the [waterbed’s]\n\nmattress.” The firearms examiner later concluded that the revolver had fired the\n\ntwo bullets that killed the Jiffy Store clerk.\n\n Boyet also testified that on November 14, 1988 — a year and one month\n\nafter the murder and Meders’ first statement to police, and four months before the\n\ntrial — Meders asked to talk with him again. Despite his previous statements\n\ndenying that he knew anything about the crime, Meders now told Boyet a different\n\nstory. Here’s how Boyet recounted on the witness stand Meders’ new story:\n\n He said that he first got with Bill Arnold and Greg Creel on the\n afternoon of October 13th, 1987. . . . They drank beer, smoked several\n\n 11\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 12 of 44\n\n\n joints, got high, got drunk, and they [ ] went to a motel room where\n Randy Harris was [ ] with a girl. . . .\n\n They rode around that afternoon and took him home. He was\n drunk, passed out on the couch. Around 11:00 [p.m.] they came back\n to his house. Bill Arnold woke him up and told him they needed him\n to go with him, and to bring his gun. He told the[m] he didn’t want to\n go, said we need you to go, get your gun and come with us, said he got\n his gun, the Dan Wesson revolver out from under the couch, got in the\n car with them. At that time they went to the Best Western Motel where\n Randy and Sandra Ruggles were at. At that point [Harris] and [Arnold]\n got over in the side of the room, were whispering low voices. He\n couldn’t understand what they were saying. [Arnold, Creel, and\n Meders] then got in the Roadrunner and left, went riding around, rode\n around the County. At one point Bill Arnold took the gun, the Dan\n Wesson, and shot at a truck. They shot at a . . . flower shop . . . on 303,\n shot a new Chevy truck somewhere on 303. They passed a young man\n by the name of Keith Bowen on Community Road. [Arnold] asked\n [Meders] to shoot [Bowen], or give him a gun, he would shoot him, and\n [Meders] said he got scared and told him he was crazy, and they kept\n riding. Said they rode several hours still drinking. They pulled into the\n Jiffy Store to get something to eat at Marshes of Mackay. All three\n went in. He said Creel went to the back, got something, put it in a\n microwave oven. He stayed up by the counter, didn’t go any further\n because he was drunk. Said at that time Bill Arnold pulled out the gun,\n shot the man, that he fell. He shot him again, and [Meders] said he told\n him, you shot that man. He said [Arnold] laughed, and said, yes, no\n witnesses, get the money. Then he said he then took the money out of\n the cash register. They got in the car and left. After leaving there, they\n went to Shady Acres Trailer Park. . . . [Creel] and [Arnold] got out of\n the car there, left him with the car, said he left the gun with [Arnold].\n He drove directly home, did not go anywhere, and went to bed.\n\nMeders also told Boyet that he did not go to Harris’ motel room after the murder,\n\nthat Harris had told him later that morning that the best thing he could do is keep\n\nhis mouth shut about the shooting, and that Harris had put the gun under Meders’\n\nmattress. Boyet testified that Meders said he had waited more than a year to tell\n\n\n 12\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 13 of 44\n\n\nthe police about the incident because he was scared of what would happen if he\n\ntold them. Boyet confirmed that he had not found any evidence that Arnold or\n\nCreel ever had the gun that killed the store clerk, or any evidence that corroborated\n\nMeders’ story about what had happened.\n\n Defense counsel then cross-examined Boyet. Boyet stated that when he\n\nquestioned Creel and Arnold on October 15 about whether they had shot at a truck\n\nas they were riding around during the night of October 13, they both denied it.\n\nDefense counsel then asked: “And did you have any reason to, to doubt that they\n\nwere telling you the truth?” Boyet responded: “The only thing I had to indicate\n\nthat they did do it was, is Jimmy Meders saying that they did.” He added: “There,\n\nthere is no other evidence to indicate that they did. There, there are no witnesses\n\nthat saw it other than the, the three who were allegedly in the [car], and I have no\n\nproof that they did do it.”\n\n 2. The Defense Witnesses\n\n The State rested, and the defense presented its case. Five witnesses testified\n\nfor the defense before Meders himself took the stand. His wife Sherry testified that\n\nMeders had passed out from drinking around 10:00 p.m. on October 13, 1987, that\n\nArnold came inside their house later that night asking to borrow a gun, and Meders\n\nleft the house with him. On cross-examination Sherry Meders admitted telling\n\nofficers on October 14 that she did not know whether her husband had left the\n\n\n\n 13\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 14 of 44\n\n\nhouse during the previous night and that she did not tell them that Arnold came by\n\nthe house to pick up Meders or Meders’ gun. She had told the police that Meders\n\nhad, among other guns, two .357 caliber guns in the house. She testified that she\n\nnever told Harris that the murder weapon was under Meders’ waterbed.\n\n Wayne Martin, a friend of Meders, testified that after going by the Best\n\nWestern for about 10 minutes on the night of October 13, he and Meders went to\n\nMeders’ house to drink some beer. He stated that when he left around 10:00 p.m.\n\nMeders was “passed out . . . on the couch.” Martin stated that a couple of months\n\nafter the shooting, Meders told him that he had been with Arnold and Creel at the\n\ntime of the shooting, that they had his gun, but that he didn’t remember what\n\nhappened during the shooting.\n\n Meders’ brother and his brother’s wife both testified that they saw Meders\n\naround 2:25 a.m. on October 14, that he was with Arnold and Creel then, and that\n\nthe three men had a gun in the car. His brother also stated that about six to seven\n\nmonths after the shooting, Meders told him that either Arnold or Creel had shot the\n\nclerk. Another witness testified that he saw Arnold at a bar around 5:00 or 6:00\n\np.m. on October 14, the day of the murder, and that Arnold told him and a few\n\nothers that he had to go see Harris and Creel to “see what the deal was” and “get\n\nthe story straight.”\n\n\n\n\n 14\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 15 of 44\n\n\n Finally, Meders testified on his own behalf. He said that during the\n\nafternoon of October 13, 1987, he and Harris took two 10 milligram Valiums each\n\nand drank some beer at the auto shop before Arnold and Creel met them at Harris’\n\nhouse, where they all drank some more. He stated that Harris gave him $250 for\n\nsome work he had done on a car, and Harris also bought a bulldog from Creel for\n\n$50. Meders testified that he, Arnold, and Creel “felt like getting drunk” so they\n\nwent to the liquor store and bought some alcohol. Around 5:30 p.m., Meders felt\n\nlike he had “had enough to drink,” so he stopped drinking — at least for a little\n\nwhile. He said that Harris then told him, Arnold, and Creel that he had to go pick\n\nhis wife up from work, so Arnold and Creel drove Meders home.\n\n Meders testified that later that night, his friend Wayne Martin took him to\n\nthe motel room that Harris had rented. Meders and Harris talked for a little while,\n\nthen Martin took Meders back home, where Meders drank some beer and passed\n\nout on the couch. The next thing Meders recalled was Arnold waking him up\n\naround 11:00 or 11:30 p.m. insisting that he “go with him.” Arnold picked him up\n\nunder the arms, and then as they were leaving Meders’ house Arnold grabbed the\n\nDan Wesson .357 Magnum, which was the murder weapon. They got in the car\n\nwith Creel and went to Harris’ motel room. Meders testified that after leaving the\n\nmotel, Arnold drove Creel and Meders by two houses. He said that Arnold and\n\nCreel had gotten in a fight with some people (one of whom was a man named\n\n\n\n 15\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 16 of 44\n\n\nKeith Bowen) and “wanted revenge,” and as the three men were driving by those\n\ntwo houses, Arnold fired Meders’ gun twice — once at a dark truck parked at one\n\nhouse, and the other time at a white truck parked at the other house. Meders then\n\ntold Arnold to take him home because he didn’t want to be involved in any trouble.\n\n According to Meders, Arnold did not take him home but instead drove to a\n\nconvenience store. After that Meders started driving the car, and as he was\n\nheading back to his house, he saw his brother and his brother’s wife making a\n\ndeposit at a bank “right around the corner from [his] house.” When they stopped at\n\nthe bank to talk to Meders’ brother and sister-in-law, Arnold got back in the\n\ndriver’s seat. They then drove to another convenience store, and Arnold went in\n\nwith Meders’ gun in his pocket while Creel and Meders sat in the car. Meders\n\ntestified that they thought Arnold was just “kidding” around by taking the gun\n\ninside.\n\n Meders testified that after Arnold returned to the car, he drove to the Jiffy\n\nStore, and all three men went inside. Meders testified that he and Arnold were\n\nstanding near the counter while Creel went to the microwave. He stated that out of\n\nnowhere, Arnold “pulled the gun and shot” the clerk twice, then told Meders: “No\n\nwitnesses. Get the money.” Meders grabbed the money out of the cash register,\n\nand the three men exited the store “pretty quickly,” got in the car, and Arnold\n\ndrove to Shady Acres Trailer Park, where he and Creel got out. Meders told\n\n\n\n 16\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 17 of 44\n\n\nArnold to keep the gun, that he didn’t want it back, and then he drove back to his\n\nhouse. He testified that after getting to his house, an officer pulled up and told him\n\nthat he had a brake light out. Meders went inside and went to sleep on the couch.\n\n Later that morning Harris came by Meders’ house and told him to “go on to\n\nwork” and that he would be there shortly. Meders testified that Harris later told\n\nhim at the shop that he should keep his mouth shut and “let [it] blow over” because\n\nMeders had a wife and child to take care of. Meders went back to his house, and\n\nseveral officers showed up. He told the officers multiple times that he did not\n\nknow anything about the shooting, which he admitted at trial was not true. Meders\n\nwent to the police station around 11:15 that morning and, as he claimed that Harris\n\nhad advised him, told the officers again that he did not know anything about the\n\nrobbery-murder.\n\n Meders acknowledged at trial that he did not tell Detective Boyet that he\n\nwitnessed the shooting until more than a year after the murder. He also conceded\n\nthat although he did not know how the torn $1 bill from the bait money ended up\n\non his television, the officers did find the other two bills of the bait money (the $5\n\nbill and the other $1 bill) in his wallet. And he acknowledged that the officers\n\nfound the murder weapon under his bed after Harris told them on October 16,\n\n1987, exactly where to find it. He claimed that he had no idea how the firearm got\n\nthere.\n\n\n\n 17\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 18 of 44\n\n\n 3. The State’s Rebuttal Witnesses\n\n Harris and a Brunswick City police officer testified in rebuttal for the State.\n\nHarris admitted that he had previously pleaded guilty to selling marijuana. He also\n\ntestified that it was Meders’ wife Sherry who had told him where the murder\n\nweapon was.\n\n The city police officer testified that around 3:30 a.m. on October 14, 1987,\n\nhe saw a vehicle speeding about a quarter mile from Meders’ house, and he later\n\nlocated that vehicle at Meders’ house. After he stopped in front of the house\n\nMeders came out to see “what was wrong.” The officer asked Meders if he had\n\nbeen driving the vehicle, and Meders, who was acting “very, very nervous,” told\n\nthe officer that he had just driven it back from the Amoco station where he had\n\ncalled his girlfriend, and that he was nervous because his wife “would kill him” if\n\nshe found out that he had a girlfriend.\n\n 4. The Closing Arguments\n\n The State waived its opening argument to the jury but reserved the right to\n\nconclude. Defense counsel argued in closing that the State had allowed Harris,\n\nArnold, and Creel to “design its case,” and he pointed out inconsistencies between\n\ntheir testimonies. He told the jury that he didn’t believe the “Arnold-Creel-Harris\n\nversion of this case speaks the truth” and argued that Harris planted the murder\n\nweapon under Meders’ bed.\n\n\n\n 18\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 19 of 44\n\n\n The State told the jurors in its closing argument that they would have to\n\njudge the credibility of the witnesses, and that “Randy Harris, Bill Arnold, Greg\n\nCreel, [and] the police officers all told the same story all the way down the line\n\nfrom day one.” It argued that Meders, his wife, and Martin had made up their\n\nstories about a year after the incident. And it noted that Meders had never\n\nexplained what he did in the “twenty-five minute[ ]” gap between leaving the\n\nShady Acres Trailer Park and arriving at his house. The State argued that what he\n\nhad done was stop by the Best Western and tell Harris what he had done, just as\n\nHarris had recounted to the jury. The State pointed out that Meders had several\n\nopportunities to tell the police what he knew about the crime, but he failed to do so\n\nuntil more than a year after the murder — unlike Harris, Arnold, and Creel.\n\n 5. The Jury Verdict and Sentence\n\n During its deliberations, the jury asked six questions, three of which Meders\n\ndiscusses in his briefs to this Court:\n\n During the execution of the first search warrant, was the bedroom\n searched, if so was the waterbed searched?\n Can fingerprints be taken and if so were they taken on the waterbed\n mattress??\n [Were] there any reports filed on the incident of the truck, on Ga Hwy\n 303, [r]eported between the day after or between then and now, being\n shot at??\n\nThe court told the jury that it could not “respond to you in any regard concerning\n\nthe evidence in this case,” and that the jury must base all of its findings on the\n\n\n 19\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 20 of 44\n\n\nevidence that had been presented to it. After two hours of deliberations, the jury\n\nreturned a guilty verdict on the charges of malice murder and armed robbery.\n\nMeders was sentenced to death for the murder offense and to a consecutive life\n\nsentence for the armed robbery offense. (There are no sentence stage issues in this\n\nappeal.)\n\n C. The Direct Appeal and Remand Proceedings\n\n Meders appealed his convictions and sentences to the Georgia Supreme\n\nCourt. See Meders v. State, 389 S.E.2d 320 (Ga. 1990). Although his trial counsel\n\ninitially represented him in the appeal, other counsel appeared for him and filed a\n\nnew brief on his behalf that “raised questions about the effectiveness of trial\n\ncounsel.” Id. at 324. Because the ineffective assistance of trial counsel was raised\n\nfor the first time on appeal by Meders’ new attorney, the Georgia Supreme Court\n\ngranted the State’s request to remand the case to the trial court for a hearing on that\n\nissue. Id. at 325. Before doing so, it rejected all of Meders’ other claims of error.\n\nId. at 321–24.\n\n At the remand hearing Meders contended that his trial counsel was\n\nineffective during the guilt phase for:\n\n [1] failing to use police incident reports found in the prosecutor’s open\n file and failing to develop testimony of the shootings near Highway 303\n that corroborated [his] trial testimony and impeached the testimony of\n the State’s key witnesses; [2] failing to utilize prior inconsistent\n recorded statements of the State’s three eyewitnesses found in the\n prosecutor’s open file; [3] failing to object to the admission of an\n\n 20\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 21 of 44\n\n\n unadjudicated citation for cocaine sales; [and] [4] failing to object to\n the admission and use of food stamps based upon a note in the\n prosecutor’s open file that the food stamps could not be linked to the\n robbery.\n\nThe evidence presented at the hearing included the complete files of the prosecutor\n\nand of Meders’ trial counsel as well as documents from the Glynn County Police\n\nDepartment relating to Meders’ case.\n\n The prosecutor’s file contained pretrial statements from Harris, Arnold, and\n\nCreel, including transcripts of Harris’ October 14, 1987 interview and of Arnold’s\n\nand Creel’s October 15 interviews. There were several inconsistencies between\n\nthose pretrial statements and trial testimony. For example, in their pretrial\n\nstatements Arnold and Creel told the police that they had taken Meders home and\n\npicked him up on the night of October 13, but in their trial testimony they denied\n\ndoing that. Creel’s pretrial statement showed that he told the police he knew\n\nMeders had a gun when Meders went into the Jiffy Store, but he testified at trial\n\nthat he did not know about the gun until Meders actually shot the clerk.\n\n A report prepared by Boyet shows that when the police went to Harris’ body\n\nshop around 11:00 a.m. on October 14, Harris told them that he had not seen\n\nMeders since the night before and he did not say anything about the shooting or\n\nMeders’ involvement in it. But at the police station just over an hour later, Harris\n\ntold the police that Meders had stopped by his motel room around 3:00 to 4:00 that\n\nmorning and told him that he had just “killed a man over $38.” Harris also told the\n\n 21\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 22 of 44\n\n\nofficers that Meders did not say where (that is, in what part of the body) he had\n\nshot the clerk but “just [that] he shot him.” At trial Harris had testified that Meders\n\nstopped by his motel room around 3:15 a.m. and told him that: “I just blowed a\n\nman’s head off over $38.00.”\n\n The pretrial statements also show that Harris told the officers on October 14\n\nthat he had no idea where Meders would keep the murder weapon. Two days later\n\nhe told Boyet that he “had been thinking about it and the only place he could think\n\nof where Meders would have hidden the gun he used was the water bed in\n\nMeders[’] bedroom.” At trial, however, he had testified that Meders’ wife Sherry\n\nhad told him where the gun was located.\n\n The prosecutor’s file also contained two police reports that supported\n\nMeders’ trial testimony about the truck shootings and contradicted the testimony of\n\nArnold, Creel, and Detective Boyet on that subject. One police report stated that\n\naround 12:30 a.m. on October 14, a car passed by the complainant’s house several\n\ntimes and someone in the car “fired a shot” on the last pass. The bullet struck the\n\nwall near the house, missing the truck parked in the driveway “by about a foot.”\n\nThe complainant’s son was Keith Bowen — the same person that Meders testified\n\nhad been in a fight with Arnold and Creel. See supra at 16. The other report stated\n\nthat around 1:30 that same morning, someone “fired a round” at the complainant’s\n\ntruck, and that the complainant “feels that the incident was caused by Larry\n\n\n\n 22\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 23 of 44\n\n\nBrockington and Greig [sic] Creel due to some problems he has had with them in\n\nthe past.”\n\n Finally, the prosecutor’s file also contained a note that stated “[u]nable to\n\ntrace any food coupons to store,” as well as a report by a Glynn County police\n\nofficer stating that Sherry (Meders’ wife) had told the officer that she and Meders\n\nwere legally receiving food stamps. Less favorable to Meders, that same report\n\nindicated that during the first search of Meders’ house the officers had looked\n\n“around the bottom outside area” of the waterbed but not underneath it.\n\n In addition to that evidence, Meders presented twelve witnesses at the\n\nremand hearing.4 His counsel at the hearing questioned several of those witnesses\n\nabout the shootings involving the two trucks and about the witnesses’ relationships\n\nwith Meders, Arnold, or Creel. One witness — the owner of one of the trucks —\n\ntestified that he had a bad relationship with Creel, and another witness testified that\n\nthe officer who took the police report about one of the truck shootings told her that\n\nthe bullet from the truck shooting “was the same type [of] bullet that had killed”\n\nthe Jiffy Store clerk.\n\n Meders’ counsel also questioned Boyet about the police reports and the\n\ninconsistencies between the pretrial statements and the trial testimony of Harris,\n\n\n 4\n Because Meders’ trial counsel was hospitalized shortly before the remand hearing, he\ncould not be called as a witness. Nor could he be called as a witness in the later state habeas\nproceedings because he died before they began.\n\n\n 23\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 24 of 44\n\n\nArnold, and Creel. Boyet confirmed that before the trial he had talked to Arnold\n\nand Creel about the truck shootings and that they both had denied any involvement\n\nin them. Boyet conceded that he was unable to link to the Jiffy Store any of the\n\nfood stamps that were admitted into evidence, he had never testified he could.\n\n No copies of the pretrial statements of Arnold, Creel, or Harris were found\n\nin Meders’ trial counsel’s file. And nothing in his trial counsel’s file suggested\n\nthat he had reviewed those witnesses’ pretrial statements. Nor did his file contain\n\ncopies of the police reports. Based on the evidence presented at the remand\n\nhearing, Meders argued that his trial counsel was ineffective for failing to use the\n\npretrial statements and police reports to corroborate Meders’ testimony and\n\n“undercut the credibility of the [State’s] prime accusers against [him],” and for\n\nfailing to object to the admission of the food stamps and the citation (that was\n\nfound in his wallet) for the sale of cocaine. He contended that those failures\n\nprejudiced him, and he asked for a new trial.\n\n The state trial court ruled that Meders had failed to show that he was\n\nprejudiced by his trial counsel’s alleged deficiencies. As a result, it denied his\n\nclaim that his counsel was ineffective during the guilt phase of his trial. The\n\nGeorgia Supreme Court affirmed. Meders v. State, 411 S.E.2d 491 (Ga. 1992). As\n\nto Meders’ ineffective assistance claim, the Georgia Supreme Court’s ruling stated\n\nin its entirety: “The trial court’s nine-page order persuasively demonstrates that\n\n\n\n 24\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 25 of 44\n\n\nMeders has failed to overcome the strong presumption that Meders’ trial counsel\n\nperformed effectively.” Id. at 492 (quotation marks omitted). The United States\n\nSupreme Court denied Meders’ petition for a writ of certiorari. Meders v. Georgia,\n\n506 U.S. 837, 113 S. Ct. 114 (1992). That ended the direct appeal.\n\n D. The State Habeas Proceedings\n\n A couple of years later, in April 1994, Meders filed a state habeas petition.\n\nAfter conducting evidentiary hearings, the state habeas court granted relief on\n\nMeders’ claim alleging ineffective assistance of counsel at the guilt phase, but it\n\ndenied relief on his other claims. The State and Meders both appealed. The\n\nGeorgia Supreme Court reversed the grant of relief on Meders’ ineffective\n\nassistance claim, explaining that the claim was procedurally barred because it had\n\nalready been litigated on the merits in the direct appeal. Schofield v. Meders, 632\n\nS.E.2d 369, 372 (Ga. 2006); see id. at 373 (“The record in this case clearly\n\nestablishes that the habeas court granted relief on claims that had been raised in\n\nessentially the identical form in the hearing held on remand to the trial court.”). It\n\naffirmed the state habeas court’s denial of relief on the other claims and reinstated\n\nMeders’ convictions and sentences. Id. at 372.\n\n E. The Federal Habeas Proceedings\n\n Meders filed a 28 U.S.C. § 2254 petition in July 2007 and an amended\n\npetition in January 2012. The district court ruled that Meders’ trial counsel’s\n\n\n\n 25\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 26 of 44\n\n\nperformance at the guilt phase was deficient but concluded that the trial court’s\n\nruling on remand in the direct appeal that Meders could not establish prejudice was\n\nnot an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104\n\nS. Ct. 2052 (1984). See 28 U.S.C. § 2254(d)(1). On that basis it denied his\n\npetition. Meders later moved for a certificate of appealability on several claims,\n\nand the district court granted one on a single general issue: whether Meders’ trial\n\ncounsel was ineffective during the guilt phase of his trial.\n\n II. DISCUSSION\n\n For a third of a century it has been established that counsel does not render\n\nineffective assistance unless he performs outside “the wide range of reasonable\n\nprofessional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even\n\nthen, the claim is not established and no relief is due unless the petitioner\n\naffirmatively proves that the errors of counsel had not just “some conceivable\n\neffect on the outcome of the proceeding” but “that they actually had an adverse\n\neffect on the defense.” Id. at 693, 104 S. Ct. at 2067.\n\n As for how adverse, and how likely, the effect of the attorney’s errors must\n\nbe: “The defendant must show that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent. A reasonable probability is a probability sufficient to undermine\n\nconfidence in the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harrington v.\n\n\n\n 26\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 27 of 44\n\n\nRichter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (“The likelihood of a\n\ndifferent result must be substantial, not just conceivable.”).\n\n As difficult as it is to prevail on an ineffective assistance prejudice issue in\n\nthe first court to decide it, the Antiterrorism and Effective Death Penalty Act of\n\n1996 makes it even harder to succeed on that issue in a federal habeas proceeding\n\nafter a state court has ruled that the petitioner failed to show prejudice. To obtain\n\nhabeas relief, the petitioner must show that the state court’s ruling “resulted in a\n\ndecision that was contrary to, or involved an unreasonable application of, clearly\n\nestablished Federal law, as determined by the Supreme Court of the United States.”\n\n28 U.S.C. § 2254(d)(1).5 That is a highly deferential standard that is intentionally\n\ndifficult to meet. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786; Trepal v.\n\nSec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012); see also White v.\n\nWheeler, 577 U.S. __, 136 S. Ct. 456, 460 (2015) (“This Court, time and again, has\n\ninstructed that AEDPA, by setting forth necessary predicates before state-court\n\njudgments may be set aside, erects a formidable barrier to federal habeas relief for\n\nprisoners whose claims have been adjudicated in state court.”) (quotation marks\n\nomitted).\n\n\n\n 5\n A petitioner may, of course, also prevail under AEDPA by showing that the state\ncourt’s ruling “resulted in a decision that was based on an unreasonable determination of the\nfacts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).\nBecause Meders makes no argument under that alternative provision, we will not discuss it\nfurther.\n\n\n 27\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 28 of 44\n\n\n Under AEDPA, error is not enough; even clear error is not enough. Virginia\n\nv. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s\n\ndecision to be an unreasonable application of this Court’s case law, the ruling must\n\nbe objectively unreasonable, not merely wrong; even clear error will not suffice.”)\n\n(quotation marks omitted). To overcome AEDPA deference under § 2254(d)(1),\n\nthe petitioner must “show that the state court’s ruling . . . was so lacking in\n\njustification that there was an error well understood and comprehended in existing\n\nlaw beyond any possibility for fairminded disagreement.” Id. “[I]f some\n\nfairminded jurists could agree with the state court’s decision, although others\n\nmight disagree, federal habeas relief must be denied.” Holsey v. Warden, Ga.\n\nDiagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quotation marks\n\nomitted).\n\n The Georgia Supreme Court denied Meders’ guilt stage ineffective\n\nassistance of counsel claim on the merits. See Meders, 411 S.E.2d at 492. It did\n\nso in the appeal from the order entered by the state trial court on remand during the\n\ndirect appeal. See id. Because it affirmed on the basis of the trial court’s order,\n\nsee id, we “look through” the Georgia Supreme Court’s decision to that trial court\n\norder. See Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).\n\n Meders concedes that § 2254(d)(1) deference is due the state trial court’s\n\nruling on remand regarding prejudice. See, e.g., Appellant’s Br. at 33 (“The issue\n\n\n\n 28\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 29 of 44\n\n\nin this case, then, is whether the state court’s conclusion that Meders failed to\n\nprove sufficient prejudice involved an unreasonable application of Strickland, as\n\ndefined by § 2254(d)(1).”). The measure of deference is whether “the state court’s\n\nruling . . . was so lacking in justification that there was an error well understood\n\nand comprehended in existing law beyond any possibility for fairminded\n\ndisagreement.” LeBlanc, 137 S. Ct. at 1728 (citation omitted); Holsey, 694 F.3d at\n\n1257.\n\n “Deciding whether a state court’s decision involved an unreasonable\n\napplication of federal law . . . requires the federal habeas court to train its attention\n\non the particular reasons — both legal and factual — why state courts rejected a\n\nstate prisoner’s federal claims, and to give appropriate deference to that decision.”\n\nWilson, 138 S. Ct. at 1191–92 (quotation marks and citations omitted). That does\n\nnot mean we are to flyspeck the state court order or grade it. What it means is we\n\nare to focus not merely on the bottom line ruling of the decision but on the reasons,\n\nif any, given for it. The bottom line here is the ruling by the state trial court that\n\ncounsel’s failure to use certain pretrial statements of witnesses and police reports\n\ncoupled with their failure to object to certain evidence did not amount to\n\nineffective assistance of counsel. The reason the state court gave for that ruling is\n\nthat there was no reasonable probability of a different result if counsel had acted as\n\nMeders claimed they should have. The reason there wasn’t, the court explained, is\n\n\n\n 29\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 30 of 44\n\n\nthat the evidence counsel failed to present was cumulative and outweighed by the\n\nstrong evidence of guilt, and the objections that they failed to make would have\n\nbeen futile or otherwise would have made no difference anyway. See Strickland,\n\n466 U.S. at 692–96, 104 S. Ct. at 2066–69.\n\n Notwithstanding his concession that deference is due, at other points in his\n\nbriefs Meders appears to implicitly argue either that deference is not due, or\n\nperhaps that deference does not mean much. He does so by engaging in a line-by-\n\nline critique of the state court’s reasoning, pointing out evidence that was not\n\nmentioned in the state court’s order or was not given the weight he feels it\n\ndeserves. See, e.g., Appellant’s Reply Br. at 7–8 (taking issue with how the state\n\ntrial court summarized the evidence against him); id. at 16 (arguing that the state\n\ntrial court’s order “gives no indication” that it considered facts brought to light by\n\nthe impeachment evidence presented at the remand hearing); Appellant’s Br. at 36\n\n(arguing that the court focused on the wrong evidence and “failed to consider the\n\nmost compelling issues framed by the evidence”). That is not the proper approach.\n\n This Court has stressed that in applying AEDPA deference federal courts are\n\nnot to take a magnifying glass to the state court opinion or grade the quality of it.\n\nWe have emphasized time and again that we are “not to read state court opinions as\n\nif we were grading papers.” Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,\n\n1055 (11th Cir. 2017) (quotation marks omitted); see also, e.g., Jones v. Sec’y, Fla.\n\n\n\n 30\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 31 of 44\n\n\nDep’t. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (“[W]e have cautioned that\n\noveremphasis on the language of a state court’s rationale would lead to a grading\n\npapers approach that is outmoded in the post-AEDPA era.”) (quotation marks\n\nomitted); Holland v. Florida, 775 F.3d 1294, 1311 (11th Cir. 2014) (“We do not\n\nread state court opinions as if we were grading papers, and must apply AEDPA\n\ndeference absent a conspicuous misapplication of Supreme Court precedent.”)\n\n(quotation marks omitted); cf. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,\n\n1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts\n\nspell out their rationale would run counter to the main thrust of [AEDPA].”).\n\n We have explicitly rejected the proposition that a state court decision\n\ninvolves an unreasonable application of federal law and is not entitled to deference\n\nunless that court’s opinion on its face “shows its work” by explicitly mentioning\n\n“all relevant circumstances” that the defendant argues in support of relief. See Lee\n\nv. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013). That\n\nproposition captures Meders’ position. Our rejection of it follows the Supreme\n\nCourt’s teaching that “readiness to attribute error” to a state court decision is\n\nincompatible with both “the presumption that state courts know and follow the\n\nlaw” and AEDPA’s “highly deferential standard for evaluating state-court rulings,\n\nwhich demands that state-court decisions be given the benefit of the doubt.”\n\n\n\n\n 31\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 32 of 44\n\n\nWoodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (citation\n\nomitted) (internal quotation marks omitted).\n\n The Supreme Court in Wilson held that presumptively we should look\n\nthrough a silent higher state court decision to an explicitly reasoned lower court\n\none in determining the reasons for the decision. Wilson, 138 S. Ct. at 1193–96.\n\nBut Wilson was about which state court decision we are to look at if the lower state\n\ncourt gives reasons and the higher state court does not. It was not about the\n\nspecificity or thoroughness with which state courts must spell out their reasoning\n\nto be entitled to AEDPA deference or the level of scrutiny that we are to apply to\n\nthe reasons that they give. Our no-grading-papers, anti-flyspecking rule remains\n\nthe law of the circuit. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475\n\nF.3d 1228, 1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is one\n\nthing, extrapolating from its implications a holding on an issue that was not before\n\nthat Court in order to upend settled circuit law is another thing.”); Garrett v. Univ.\n\nof Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“While\n\nan intervening decision of the Supreme Court can overrule the decision of a prior\n\npanel of our court, the Supreme Court decision must be clearly on point.”).\n\n After all, the Supreme Court itself has also held that “federal courts have no\n\nauthority to impose mandatory opinion-writing standards on state courts.” Johnson\n\nv. Williams, 568 U.S. 289, 300, 133 S. Ct. 1088, 1095 (2013). In so holding, the\n\n\n\n 32\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 33 of 44\n\n\nCourt cautioned that “[t]he caseloads shouldered by many state appellate courts are\n\nvery heavy, and the opinions issued by these courts must be read with that factor in\n\nmind.” Id. at 300, 133 S. Ct. at 1095–96 (footnote omitted). Not only that, but the\n\nSupreme Court has held that AEDPA deference is due even to those state court\n\nrulings for which no rationale or reasoning at all is given. See Harrington, 562\n\nU.S. at 100, 131 S. Ct. at 785. It would be irrational to afford deference to a\n\ndecision with no stated explanation but not afford deference to one that states\n\nreasons, albeit not as thoroughly as it could have.\n\n Only the clearest indication that Wilson overruled the Supreme Court’s\n\nprevious decisions, such as Johnson, would warrant ignoring those decisions, and\n\nthere is no indication at all that Wilson did so. See Hohn v. United States, 524\n\nU.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding\n\nprecedent until we see fit to reconsider them, regardless of whether subsequent\n\ncases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521\n\nU.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do\n\nnot hold, that other courts should conclude our more recent cases have, by\n\nimplication, overruled an earlier precedent.”); Rodriguez de Quijas v.\n\nShearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989)\n\n(“If a precedent of this Court has direct application in a case, yet appears to rest on\n\nreasons rejected in some other line of decisions, the Court of Appeals should\n\n\n\n 33\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 34 of 44\n\n\nfollow the case which directly controls, leaving to this Court the prerogative of\n\noverruling its own decisions.”).\n\n Applying AEDPA deference to the state trial court decision that Meders\n\nfailed to establish prejudice for Strickland purposes, the question is whether every\n\nfairminded jurist would conclude that prejudice has been established. See\n\nWilliamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (“To\n\nestablish prejudice [where AEDPA applies, a petitioner] has to show that every\n\nfair-minded jurist would conclude that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent.”) (quotation marks omitted). So long as any fairminded jurist could\n\nagree with the state court’s ruling, we must deny federal habeas relief. With that\n\nstandard of deference in mind, we turn to the facts established at trial and in the\n\nevidentiary hearing in the state trial court on remand that are relevant to the\n\nineffective assistance of counsel claims.\n\n A. Failure to Use the Pretrial Statements and the Police Reports\n\n Meders contends that his trial counsel was ineffective for failing to use\n\ncertain pretrial statements and police reports to impeach several of the State’s\n\nwitnesses, and that the state trial court’s determination that he had failed to\n\nestablish prejudice “reflects a profound misvaluation of the impeachment material\n\ntrial counsel failed to use.” The State, while acknowledging that new evidence\n\n\n\n 34\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 35 of 44\n\n\ndoes call into question “certain areas of credibility” of some of its witnesses,\n\ncontends that evidence is not enough to repair Meders’ credibility or to refute the\n\noverwhelming evidence showing his guilt.\n\n As the State recognizes, when read against their testimony at trial, the\n\npretrial statements and the police reports weaken the credibility of Harris, Creel,\n\nArnold, and Detective Boyet. Harris, for example, first told the police around\n\n11:00 a.m. on October 14 that he hadn’t seen Meders since the previous night. An\n\nhour later he told the police that between 3:00 to 4:00 that morning Meders had\n\nstopped by his motel room and told him he shot the store clerk, but said that\n\nMeders had not mentioned that he shot the clerk in the head. But Harris later\n\ntestified at trial that when Meders had stopped by his motel room, Meders told him\n\nhe had shot the store clerk in the head. He also first told the police he didn’t know\n\nwhere the murder weapon was located, then told them two days later that he had\n\nremembered Meders liked to hide things under his waterbed “where they would\n\nnever be found,” and finally testified at trial that Sherry Meders had told him that\n\nthe gun was under the waterbed.\n\n Although it’s clear that Harris made inconsistent statements, it’s not clear\n\nthat he was lying about Meders confessing that he had just “blowed a man’s head\n\noff over $38.00.” Harris testified that Meders took $38 — no more, no less —\n\nfrom the Jiffy Store. But there is no evidence that Arnold or Creel knew how\n\n\n\n 35\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 36 of 44\n\n\nmuch money was taken from the Jiffy Store. And Meders admitted at trial that he\n\nhad taken the money from the cash register and that nothing was said in the car\n\nfrom “the time we left the store till we reached Shady Acres Trailer Park.” So\n\nArnold and Creel could not have told Harris how much money Meders took\n\nbecause they did not know how much money he took. As a result, either Meders\n\ntold Harris that he took $38 from the store (and lied to Boyet when denying that) or\n\nHarris miraculously guessed the precise amount of cash that Meders stole from the\n\nstore.\n\n In a similar vein, Harris’ incentive to lie about who committed the robbery-\n\nmurder was much weaker than that of Meders, Arnold, or Creel. Arnold and Creel\n\nadmitted that they were present at the scene of the murder, putting them in some\n\njeopardy of being convicted of that crime. Harris, by contrast, undisputedly was\n\nnot present during the crime, nor was there any evidence suggesting that he knew it\n\nwas going to happen. No matter whose version of the events the jury found was\n\ntrue, Harris did not face conviction for the capital crime of robbery-murder and a\n\ndeath sentence. And a rational jury in deciding whether to believe him or Meders\n\nwould take into account that he had far less incentive to lie than Meders, who was\n\nfacing a death sentence, did.\n\n Still, Harris could have been impeached with the evidence Meders’ trial\n\ncounsel did not present. And Arnold, Creel, and Detective Boyet also could have\n\n\n\n 36\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 37 of 44\n\n\nbeen impeached with the evidence that was not presented. Arnold’s and Creel’s\n\npretrial statements contradicted some of their testimony at trial. The police reports\n\nfrom the prosecutor’s file not only undermined the testimonies of Arnold, Creel,\n\nand Boyet about the truck shootings but also supported Meders’ testimony about\n\nthose shootings. And the jury’s question about whether any reports were filed\n\nabout the truck shootings suggests that it was interested in that subject. The jury\n\nquestions about whether the waterbed was searched when officers first searched\n\nthe house and whether fingerprints were lifted from it suggest that the jury was\n\nalso interested in that.\n\n Despite all of that, there was still undisputed evidence in the record pointing\n\nto Meders’ guilt. For example, the two bullets that struck the victim were fired\n\nfrom the Dan Wesson .357 Magnum revolver that was found under Meders’\n\nwaterbed. Meders even confirmed at trial that the .357 Magnum “was the weapon\n\nthat was used to kill the [store clerk].” He acknowledged that he owned that\n\nweapon, and there was no evidence that anyone had planted it under his waterbed.\n\n The undisputed facts about what happened to the proceeds of the robbery are\n\nstrong evidence of Meders’ guilt. After all, he admitted to the jury that he was the\n\none who took the money from the Jiffy Store: “I got the money out of the cash\n\nregister.” And he was the only one who kept any of that money. The Jiffy Store’s\n\nbait money was found in his possession. Meders admitted that two of the three bait\n\n\n\n 37\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 38 of 44\n\n\nmoney bills were found in his wallet. The third bait bill was found on his\n\ntelevision. If, as Meders claimed in his testimony, Arnold actually shot the store\n\nclerk during the robbery, it seems highly unlikely that Arnold would not have\n\nended up with any of the stolen money. Meders testified that after the crime, he\n\ninsisted that Arnold keep the firearm that belonged to Meders because he “didn’t\n\nwant it back,” but he never explained why he didn’t insist that Arnold take the\n\ncash, which was the proceeds of the crime.\n\n That the murder weapon was found under Meders’ waterbed evidences his\n\nguilt. And even if we assume that it was put there by someone other than Meders,\n\nas he implied at trial, the fact remains that he admitted to owning the weapon that\n\nfired the bullets that killed Anderson. He admitted to being present at the scene of\n\nthe crime. And he admitted to having in his possession all of the money taken\n\nfrom the cash register. And although the evidence that trial counsel did not present\n\nwould have been helpful in impeachment, none of it substantially undermined the\n\nproof of Meders’ guilt. Whether Arnold and Creel shot at the trucks and whether\n\nthey dropped Meders off at his house at some point before the murder does not\n\nchange the undisputed facts that point to Meders’ guilt. The evidence establishing\n\nthat Meders committed the murder remains strong.\n\n Even though the police reports corroborated some of Meders’ testimony, the\n\nreports would not have repaired his credibility. Meders lied to the police several\n\n\n\n 38\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 39 of 44\n\n\ndifferent times, and he acknowledged as much at trial. He testified that he told the\n\nofficer who pulled up at his house after the shooting that he had just gone to call\n\nhis girlfriend and he was nervous because his wife would kill him if she found out.\n\nThat was a lie, as Meders admitted at trial. And when police officers questioned\n\nhim at his house hours after the murder, he told them he did not know anything\n\nabout the shooting. That was also a lie, as Meders admitted at trial. Hours later at\n\nthe police station, he again told Detective Boyet he knew nothing about the\n\nshooting. Same lie retold, as Meders later admitted at trial.\n\n A year and a month after his arrest Meders reversed a year-long course of\n\nlies and admitted to Boyet that he was with Arnold and Creel at the Jiffy Store at\n\nthe time of the murder. He attempted to explain away his previous lies about that\n\nby saying he had simply been following Harris’ advice to deny any involvement in\n\nthe crime.6 He was the only one out of the three men involved in the crime who\n\ninitially denied having any knowledge of it to persist in that lie for more than a\n\nyear. Meders also lied to the police about the murder weapon. When asked at the\n\n\n 6\n That Meders would follow Harris’ advice is hard to square with his purported belief that\nHarris was out to get him for allegedly having an affair with Harris’ wife.\n Meders argues that in a contest of credibility a jury should not believe Harris’ testimony\nincriminating him because Harris initially failed to mention to the police anything about Meders’\ninvolvement in the murder but an hour later told them that Meders said he had “killed a man over\n$38.” If Harris’ “lie,” which he corrected within an hour, supplies “good reason to doubt” his\ntestimony, Meders’ lies about having no knowledge of the crime, which he failed to correct for\n13 months, give bountiful reason to doubt Meders’ testimony and decide the contest of\ncredibility in favor of Harris.\n\n\n 39\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 40 of 44\n\n\npolice station the day of the robbery and murder what firearms he owned, he listed\n\nseveral guns, failing to mention only one –– his Dan Wesson .357 Magnum that\n\nwas the murder weapon.\n\n Meders has failed to show that had his trial counsel used all of the\n\nimpeachment material during the guilt phase of his trial, every fairminded jurist\n\nwould conclude that there is a “substantial, not just conceivable,” likelihood that\n\nthe result of his trial would have been different. See Harrington, 562 U.S. at 112,\n\n131 S. Ct. at 792. We are not convinced that every reasonable jurist’s confidence\n\nin the outcome of the trial would have been undermined. See Strickland, 466 U.S.\n\nat 687, 104 S. Ct. at 2064. The state trial court’s prejudice determination was not\n\nunreasonable.\n\n B. Failure to Object to the Food Stamps and the Cocaine Citation\n\n Meders also argues that trial counsel’s failure to object to the introduction of\n\nevidence that he had food stamps or to argue to the jury that they could not be\n\nlinked to the robbery also amounted to ineffective assistance. The Jiffy Store\n\nmanager testified that food stamps were taken from the store, although she could\n\nnot say how many food stamps were taken. And on the witness stand, Meders\n\nconceded that food stamps were found in his jacket just hours after the crime. In\n\naddition, Creel testified that after they got to the trailer park minutes after the\n\n\n\n\n 40\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 41 of 44\n\n\nshooting, Meders tried to give him and Arnold some of the food stamps that he had\n\ntaken from the store.\n\n Given all of that testimony, there was enough evidence to link the food\n\nstamps to the robbery. They were admissible and an objection to them would have\n\nbeen futile. The state court found that counsel’s failure to object to the\n\nintroduction of the food stamps was neither deficient performance nor prejudicial.\n\nThat is not only reasonable but also correct. It is not ineffective assistance of\n\ncounsel to fail to make an objection that is not due to be sustained. See Green v.\n\nGeorgia, 882 F.3d 978, 987 (11th Cir. 2018) (holding that the petitioner could not\n\npossibly have suffered Strickland prejudice where the objection that was not made\n\nwould have been futile); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.\n\n2017) (stating that “an attorney will not be held to have performed deficiently for\n\nfailing to perform a futile act, one that would not have gotten his client any relief”).\n\n As for counsel’s failure to argue to the jury that the food stamps found in\n\nMeders’ possession had not been positively connected to the robbery, it is not\n\nprejudicial for an attorney to fail to point out to the jury something that is obvious\n\nfrom the evidence. No one said that those food stamps could be traced to the store\n\nthat had been robbed. Reasonable jurists could find, as the state court did, that\n\nMeders has failed to show that if counsel had objected to the food stamps or argued\n\nthat they had not been identified as the ones taken in the robbery, Meders would\n\n\n\n 41\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 42 of 44\n\n\nhave been acquitted. Cf. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1311–\n\n12 (11th Cir. 2012) (holding that the district court should have deferred to the state\n\ncourt’s finding that “credited the testimony indicating that the food stamps found\n\nin [the defendant’s] room belonged to [the victim]” despite the fact that “the\n\nevidence did not establish with certainty that the food stamps found in [the\n\ndefendant’s] room belonged to [the victim]”).\n\n The state court rejected Meders’ ineffective assistance of counsel claim\n\ninvolving the failure to object to the admission of the cocaine citation seized from\n\nhis wallet on the ground that he had failed to establish prejudice. Although that\n\ncitation was admitted as evidence and given to the jury (along with other\n\ndocumentary evidence), it was never mentioned during the trial. Not once. Not\n\nonly that, but other evidence established that Meders had used and purchased\n\ndrugs. He admitted to the jury that he “smoked a little bit of dope” (marijuana)\n\nduring the afternoon of October 13, 1987. He also told the jury that he “had been\n\neating, or, well, what you call eating, had been taking some of them Valiums that\n\nday, earlier that day.” They were 10 milligram Valiums, he said, helpfully\n\ninforming everyone from the witness stand that a 10 milligram Valium “is actually\n\nthe biggest Valium you can get.” Meders also testified that he purchased drugs,\n\nexplaining that “any time I bought dope, I bought it from [Harris].” Meders’ own\n\n\n\n\n 42\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 43 of 44\n\n\nadmissions that he used drugs were backed up by the testimony of other witnesses\n\nthat he did.\n\n Based on the other evidence presented, the jury could reasonably conclude\n\nthat Meders’ drug use was the cause of the debt he allegedly owed. And even if\n\nhis drug use was not the cause of it, his debt was not “a critical fact for the\n\ndetermination of guilt,” anyway, as the district court noted. All of this means that\n\na fairminded jurist could agree with the state trial court’s ruling that Meders failed\n\nto show Strickland prejudice from counsel’s failure to object to the admission of\n\nthe cocaine citation. Even considering any purported cumulative effect from the\n\nadmission of the food stamps and cocaine citation and trial counsel’s failure to\n\npresent the impeachment evidence, a fairminded jurist could still conclude that it\n\nwas insufficient to undermine his confidence in Meders’ trial. See Reed v. Sec’y,\n\nFla. Dep’t of Corr., 767 F.3d 1252, 1263–64 (11th Cir. 2014).\n\n III. CONCLUSION\n\n Because our review is deferential, we need not determine whether our\n\ndecision would be the same if we were conducting a de novo review, though we\n\nrecognize that a different standard of review would make the questions in this case\n\ncloser ones. Looking through the AEDPA lens, we conclude that a fairminded\n\njurist could agree with the state trial court’s decision. Or put another way, not\n\nevery reasonable jurist would conclude that the state trial court’s decision was\n\n\n\n 43\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 44 of 44\n\n\ncontrary to or an unreasonable application of Supreme Court precedent. And for\n\nthat reason, the district court did not err in denying Meders’ petition for a writ of\n\nhabeas corpus.\n\n AFFIRMED.\n\n\n\n\n 44\n[END_CASE]", "role": "user" } ]
4,579,003	AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees.	Aaron Private Clinic Management LLC v. Commissioner of the Georgia Department of Community Health	2019-01-04	17-15144	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Tjoflat, Pryor, Gilman", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15144\n ________________________\n\n D.C. Docket No. 1:17-cv-01034-WSD\n\n\n\nAARON PRIVATE CLINIC MANAGEMENT LLC,\n\n Plaintiff-Appellant,\n versus\n\nFRANK W. BERRY, in his official capacity as Commissioner of the Georgia\nDepartment of Community Health, and\nNATHAN DEAL, in his official capacity as Governor of Georgia,\n\n Defendants-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n _______________________\n\n (January 4, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n* Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 2 of 18\n\n\n This appeal requires us to decide whether a limited liability company that\n\nmade preliminary plans to operate a methadone clinic has standing to challenge\n\nstate laws that restrict the licensure of narcotic-treatment facilities. Aaron Private\n\nClinic Management sued certain Georgia officials after two Georgia laws\n\ntemporarily suspended the issuance of new licenses for narcotic-treatment facilities\n\nand imposed additional licensing requirements for future facilities. The district\n\ncourt dismissed the action for lack of standing. Because the challenge to the\n\nmoratorium is in part moot and because we agree with the district court that Aaron\n\nlacks standing to assert its other claims, we affirm.\n\n I. BACKGROUND\n\n Aaron Private Clinic Management is a for-profit company that asserts that it\n\n“intends to meet the standards to establish an [opioid-treatment program] in\n\nGeorgia.” Frank Berry is the commissioner for the Georgia Department of\n\nCommunity Health and, in that capacity, oversees the agency that issues licenses\n\nfor narcotic-treatment facilities in Georgia. Nathan Deal is the governor of\n\nGeorgia, and he has the ultimate authority to direct and control the operations of\n\nthe Georgia Department of Community Health.\n\n In May 2017, Aaron filed a complaint alleging that two Georgia statutes\n\nviolate section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the\n\nAmericans with Disabilities Act, 42 U.S.C. § 12132. First, Aaron challenges a\n\n\n\n 2\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 3 of 18\n\n\n2016 statute, which it calls the “Licensing Moratorium,” that enacted “[a]\n\ntemporary moratorium on the acceptance of new applications for licensure of\n\nnarcotic treatment programs,” O.C.G.A. § 26-5-21(e). The Licensing Moratorium\n\nprohibited new applications from being accepted between June 1, 2016, and June\n\n30, 2017. Id. § 26-5-21(f). Second, Aaron challenges a 2017 statute, which it calls\n\nthe “License Cap,” that supersedes the Licensing Moratorium and provides that\n\nGeorgia’s Department of Community Health must establish minimum standards of\n\nquality for narcotic-treatment programs and provides for annual or biannual open-\n\nenrollment periods for program applications, see id. § 26-5-40 et seq. The License\n\nCap also extended the prohibition on accepting new licensure applications from\n\nJune 30, 2017, to December 1, 2017. Id. § 26-5-46(d).\n\n Aaron contends that the Licensing Moratorium and License Cap block it\n\nfrom establishing an opioid-treatment program and impose “arbitrary restrictions\n\nand burdens” on methadone clinics. Aaron asserts that it sues on its own behalf and\n\n“on behalf of its prospective patients who are opiate-addicted, who are qualified\n\ndisabled under the [Americans with Disabilities Act], and who are prospective\n\npatients of [Aaron].” Counts one through four of the complaint assert that the\n\nLicensing Moratorium and the License Cap are facially invalid under the\n\nRehabilitation Act and the Americans with Disabilities Act. Counts five and six\n\nassert an equal-protection challenge to the statutes, contending that “the State of\n\n\n\n 3\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 4 of 18\n\n\nGeorgia’s actions and disparate treatment . . . cause disproportionate impact to\n\n[Aaron] and the disabled persons [Aaron] intends to serve.” Aaron requests an\n\naward of compensatory damages and litigation expenses, a permanent injunction\n\nenjoining the defendants from continuing to violate the Americans with\n\nDisabilities Act and the Rehabilitation Act by “denying or delaying [Aaron’s]\n\nability to locate an [opioid-treatment program]” in Georgia, and a declaration that\n\nthe challenged statutes are void and unenforceable.\n\n In its complaint, Aaron alleges few facts about its plan to establish a\n\nmethadone clinic. Aaron first alleges that it is a Georgia limited liability company\n\nwith a principal place of business at 4403 Northside Parkway NW, Suite 1413,\n\nAtlanta, Georgia 30327. This address is the same as that of the law office of\n\nAaron’s counsel, James A. Dunlap. Aaron also alleges that it will use the “latest\n\nmedical technologies, including methadone maintenance treatment, to address the\n\nphysical symptoms of [opioid] addiction in combination with . . .\n\npsychotherapeutic interventions.” Aaron further alleges that its prospective opiate-\n\naddicted clients are disabled under the Rehabilitation Act and the Americans with\n\nDisabilities Act, and that Aaron’s programs will operate as “supervised\n\nrehabilitation programs” for persons with disabilities as described under federal\n\nlaw. And Aaron alleges in each count of the complaint that the challenged statutes\n\nhave caused it to expend additional time and financial resources, to lose the\n\n\n\n 4\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 5 of 18\n\n\nopportunity to conduct its business, and to incur “additional costs and expenses,\n\nattorney’s fees, interest, and cost of capital” from “interference and delays with\n\nplanning, raising investment funds, hiring, and other normal processes related to\n\nopening a business.” These allegations are all the complaint contains about\n\nAaron’s plan to establish a methadone clinic.\n\n Although Aaron offers few specifics about its proposed clinic, its complaint\n\nincludes more detailed allegations about the need for methadone clinics in Georgia.\n\nAaron alleges that the annual number of opioid overdose deaths in Georgia is\n\nskyrocketing, rising from roughly 200 in 2006 to nearly 1,000 in 2015. Aaron\n\nfurther asserts that many of Georgia’s methadone clinics are currently overcapacity\n\nand cannot accept new patients. Aaron also contends that the lack of capacity\n\ncauses a variety of harms to opioid-addicted persons, who face price gouging,\n\nlonger travel and wait times, and a lack of competition for treatment options. And\n\nAaron cites evidence suggesting that methadone treatment has proven to be\n\neffective in reducing the number of drug overdoses in a community.\n\n After Aaron filed its complaint, the defendants moved to dismiss on several\n\ngrounds, including for lack of standing. The district court granted the motion to\n\ndismiss. The court first determined that the complaint fails to establish that Aaron\n\ndirectly suffered an injury in fact that is “actual or imminent, not ‘conjectural’ or\n\n‘hypothetical.’” The court explained that the complaint alleges at most that Aaron\n\n\n\n 5\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 6 of 18\n\n\nwas in the early stages of the planning process, not that it would have been\n\nprepared to offer treatment to its prospective clients but for the challenged statutes.\n\nThe court also stated that, although Aaron labels the requirements imposed by the\n\nLicense Cap as “arbitrary and discriminatory,” it fails to identify any “specific\n\nrules with which it cannot comply, and does not allege why they are discriminatory\n\nor how they prevent [it] from establishing its clinic in the future.” And the court\n\nobserved that Aaron has not alleged that it had applied for a license and been\n\ndenied, that it would be prevented from participating in the open enrollment for\n\nnew licensure applications, or that it would be unsuccessful in such applications if\n\nthey were submitted. The district court also rejected Aaron’s contention that it had\n\nthird-party standing to assert the injuries suffered by its prospective clients. The\n\ndistrict court ruled that Aaron’s third-party-standing argument failed because\n\nAaron did not establish that it has suffered an injury in fact, that it has a close\n\nrelationship to a third party that is being discriminated against, and that there is\n\nsome hindrance to the third party’s ability to protect his or her own interests. See\n\nYoung Apartments v. Town of Jupiter, 529 F.3d 1027, 1042 (11th Cir. 2008).\n\nFinally, the district court ruled that, even if Aaron had sufficiently alleged direct or\n\nthird-party standing, it lacks statutory standing to assert these claims under either\n\nthe Rehabilitation Act or the Americans with Disabilities Act.\n\n\n\n\n 6\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 7 of 18\n\n\n II. STANDARD OF REVIEW\n\n We review the dismissal of a complaint de novo. Culverhouse v. Paulson &\n\nCo., 813 F.3d 991, 993 (11th Cir. 2016).\n\n III. DISCUSSION\n\n We divide our discussion in three parts. First, we explain that Aaron’s\n\nrequest for declaratory and injunctive relief regarding the temporary moratorium\n\non the acceptance of new licensure applications is moot. Second, we explain that\n\nAaron has failed to establish that it has direct standing. Third, we explain that\n\nAaron has failed to establish that it has third-party standing to assert the injuries of\n\nits prospective clients.\n\n A. Aaron’s Request for Declaratory and Injunctive Relief Regarding the\n Temporary Moratorium is Moot.\n\n Although the district court did not consider and the parties have not briefed\n\nthe issue of mootness, “[i]t is incumbent upon this court to consider issues of\n\nmootness sua sponte and, absent an applicable exception to the mootness doctrine,\n\nto dismiss any appeal that no longer presents a viable case or controversy.” Hunt v.\n\nAimco Props., 814 F.3d 1213, 1220 (11th Cir. 2016) (quoting Pac. Ins. Co. v. Gen.\n\nDev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)). “A case is moot when it no\n\nlonger presents a live controversy with respect to which the court can give\n\nmeaningful relief.” Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.\n\n1993)). Absent exceptional circumstances, a challenge to the enforcement of a\n\n\n 7\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 8 of 18\n\n\nstatute becomes moot when that law is no longer effective. See Burke v. Barnes,\n\n479 U.S. 361, 363 (1987) (explaining that challenges to an expired statute, like\n\nthose made to a repealed statute, are moot). And although the district court did not\n\nrely on mootness in dismissing the complaint, “[w]e may affirm on any ground\n\nsupported by the record, regardless of whether that ground was relied upon or even\n\nconsidered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).\n\n As Aaron acknowledged at oral argument, its request for declaratory and\n\ninjunctive relief about the Licensing Moratorium was rendered moot by the\n\nexpiration of the moratorium in June 2017, and its similar request about the\n\nLicense Cap’s extension of the moratorium was rendered moot when that provision\n\nexpired in December 2017. Because no exception to the mootness doctrine applies\n\nto these requests for declaratory and injunctive relief, they are moot, and we affirm\n\nthe dismissal of them.\n\n B. Aaron Has Failed to Establish that It Has Article III Standing.\n\n The district court ruled, and we agree, that Aaron lacks direct standing\n\nbecause it failed to plead facts establishing that it had directly suffered an actual or\n\nimminent injury in fact. Article III of the Constitution limits the subject-matter\n\njurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. Art. III,\n\n§ 2. Standing “is the threshold question in every federal case, determining the\n\npower of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).\n\n\n\n 8\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 9 of 18\n\n\n“In the absence of standing, a court is not free to opine in an advisory capacity\n\nabout the merits of a plaintiff’s claims, and the court is powerless to continue.”\n\nCAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.\n\n2006) (citations and internal quotation marks omitted).\n\n To establish its Article III standing, Aaron must satisfy three requirements.\n\nFirst, it “must have suffered an injury in fact—an invasion of a legally protected\n\ninterest which is (a) concrete and particularized and (b) actual or imminent, not\n\nconjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560\n\n(1992) (citations and internal quotation marks omitted). Second, “there must be a\n\ncausal connection between the injury and the conduct complained of—the injury\n\nhas to be fairly traceable to the challenged action of the defendant.” Id. (alterations\n\nadopted) (internal quotation marks omitted). Third, “it must be likely, as opposed\n\nto merely speculative, that the injury will be redressed by a favorable decision.” Id.\n\nat 561 (internal quotation marks omitted).\n\n Each element of standing is “an indispensable part of the plaintiff’s case”\n\nand “must be supported in the same way as any other matter on which the plaintiff\n\nbears the burden of proof, i.e., with the manner and degree of evidence required at\n\nthe successive stages of the litigation.” Id. “While the proof required to establish\n\nstanding increases as the suit proceeds, the standing inquiry remains focused on\n\nwhether the party invoking jurisdiction had the requisite stake in the outcome when\n\n\n\n 9\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 10 of 18\n\n\nthe suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)\n\n(citation omitted).\n\n To satisfy its burden at the pleading stage, a plaintiff must “clearly allege\n\nfacts demonstrating each element,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547\n\n(2016) (alteration adopted) (citation and internal quotation marks omitted), and we\n\nevaluate standing on a motion to dismiss based on the facts alleged in the\n\ncomplaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.\n\n2013). To adequately allege injury in fact, it is not enough that a complaint “‘sets\n\nforth facts from which we could imagine an injury sufficient to satisfy Article III’s\n\nstanding requirements,’ since ‘we should not speculate concerning the existence\n\nof standing, nor should we imagine or piece together an injury sufficient to give\n\nplaintiff standing when it has demonstrated none.’” Bochese v. Town of Ponce\n\nInlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v.\n\nFla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000)). “If the\n\nplaintiff fails to meet its burden, this court lacks the power to create jurisdiction by\n\nembellishing a deficient allegation of injury.” Id.\n\n Aaron contends that it suffered three injuries sufficient to establish its\n\nstanding under Article III. First, Aaron asserts that the Licensing Moratorium and\n\nLicense Cap precluded or hindered it from developing an opioid-treatment\n\nprogram in Georgia and caused it to suffer lost profits. Second, Aaron alleges that\n\n\n\n 10\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 11 of 18\n\n\nthe challenged statutes caused it to incur “additional costs and expenses, attorney’s\n\nfees, interest, and cost of capital” from “interference and delays with planning,\n\nraising investment funds, hiring, and other normal processes related to opening a\n\nbusiness.” Third, Aaron alleges that the challenged statutes discriminate against\n\nand stigmatize it. We address each proffered injury in turn and determine that\n\nAaron has failed to establish its Article III standing.\n\n 1. Aaron’s Alleged Injury Based on Lost Profits Is Insufficient to Establish\n Standing.\n\n We begin with Aaron’s assertion that the challenged statutes thwarted its\n\nplan to open a methadone clinic and caused it to suffer lost profits. The district\n\ncourt concluded that this alleged injury was speculative. We agree with the district\n\ncourt.\n\n Although the complaint alleges that Aaron aspired to open a methadone\n\nclinic someday, it offers no facts suggesting that the “someday” was imminent or\n\nthat Aaron had any concrete plan in place for bringing its clinic into operation. The\n\nmost that the complaint alleges Aaron has done is form a limited liability company\n\nthat will serve as a management company for future methadone clinics, and it\n\nvaguely alleges “interference and delays with planning, raising investment funds,\n\nhiring, and other normal processes related to opening a business.” But these\n\nallegations are a far cry from alleging that, absent the challenged statutes, Aaron\n\nimmediately intended to bring, and actually could bring, its clinic into operation.\n\n\n 11\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 12 of 18\n\n\nAnd Aaron has failed to allege that it has taken any concrete steps—such as\n\nselecting a clinic location, securing a lease option, consulting with relevant\n\ngovernment officials, applying for the necessary permits or certifications, or\n\nassociating with potential clients—that suggest such an immediate intention or\n\nplan. Because Aaron has alleged only that it intends to found a clinic at some\n\nunspecified time in the future, its “‘some day’ intention[]—without any description\n\nof concrete plans, or indeed even any specification of when the some day will be—\n\ndo[es] not support a finding of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at\n\n564.\n\n Ample precedent makes clear that Aaron must allege more than a bare\n\nintention to someday found a clinic. In Village of Arlington Heights v.\n\nMetropolitan Housing Development Corp., 429 U.S. 252 (1977), and Jackson v.\n\nOkaloosa County, 21 F.3d 1531 (11th Cir. 1994), the Supreme Court and this\n\nCourt held that plaintiffs alleging injuries related to proposed housing projects had\n\nto establish, among other things, a “substantial probability” that the projects would\n\ncome into existence absent the challenged action. See Arlington Heights, 429 U.S.\n\nat 264; Jackson, 21 F.3d at 1537–38. The plaintiffs in both decisions—unlike\n\nAaron—met this burden by pointing to specific and concrete facts that suggested\n\nsuch a substantial probability. See Arlington Heights, 429 U.S. at 255–58\n\n(observing that the developer of a proposed housing project was already in the\n\n\n\n 12\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 13 of 18\n\n\nbusiness of building similar housing projects, had entered into a 99-year lease and\n\nan accompanying agreement to purchase the land for the proposed project, had\n\nhired an architect and produced detailed plans for the project, and had submitted a\n\nvariety of detailed plans and reports as a part of a petition for rezoning); Jackson,\n\n21 F.3d at 1537–38 (observing that the bidding process for the proposed housing\n\nproject was nearly completed, the project’s sources of funding were established,\n\nand a bidder had submitted a bid to construct the facility at a specific proposed\n\nsite). And, in other factual contexts, the Supreme Court has repeatedly explained\n\nthat a plaintiff asserting that it would have engaged in an activity absent the\n\nchallenged statute must establish that it was “able and ready” to do so. See, e.g.,\n\nGratz v. Bollinger, 539 U.S. 244, 262 (2003) (explaining that the plaintiff had\n\nstanding to challenge affirmative-action policies at the defendant university\n\nbecause he established that he was “able and ready” to apply once the university\n\nstopped using race in admissions); Ne. Fla. Chapter, Associated Gen. Contractors\n\nof Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (holding that the plaintiffs\n\nhad standing to challenge an ordinance giving preferential treatment to minority-\n\nowned businesses because they “demonstrate[d] that [they were] able and ready to\n\nbid on contracts” (emphasis added)); Clements v. Fashing, 457 U.S. 957, 962\n\n(1982) (holding that plaintiff officeholders had standing because they credibly\n\nalleged that they would have announced their candidacy for other offices but for\n\n\n\n 13\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 14 of 18\n\n\nthe “automatic resignation” provision they were challenging). It is not enough for\n\nAaron to allege that there exists a need for methadone clinics in Georgia in the\n\nabsence of facts that would suggest its readiness to supply that need.\n\n A plaintiff alleging that it would have opened a business absent the\n\nchallenged action must point to at least some facts suggesting a likelihood that its\n\nbusiness would have come about absent the challenged action. Aaron has alleged\n\nno supporting facts suggesting this likelihood. So its first assertion of injury fails.\n\n2. Aaron’s Alleged Injury Based on Additional Costs and Expenses Related to the\n Challenged Statutes Is Insufficient to Establish Standing.\n Aaron’s second asserted injury—that it incurred “additional costs and\n\nexpenses, attorney’s fees, interest, and cost of capital” from “interference and\n\ndelays with planning, raising investment funds, hiring, and other normal processes\n\nrelated to opening a business”—also fails to suffice. The threadbare allegations of\n\nadditional costs, expenses, and attorney’s fees are so vague that they do not\n\nestablish any of the elements of Article III standing. We cannot divine what these\n\nallegedly incurred costs are referring to, and so we cannot assess whether they give\n\nAaron a sufficient stake in this appeal, whether they are fairly traceable to the\n\nchallenged statutes, or whether they will be redressed by a favorable decision. See\n\nWarth, 422 U.S. at 508 (holding that a plaintiff must plead “specific, concrete facts\n\ndemonstrating that the challenged [action] harm[s] him, and that he personally\n\nwould benefit in a tangible way from the court's intervention” (emphasis altered)).\n\n\n 14\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 15 of 18\n\n\nAs to the allegation of “interest[] and cost of capital,” it appears that Aaron is\n\nsuggesting that it has some capital available for its clinic and that the challenged\n\nstatutes have prevented it from putting these funds to productive use. But because\n\nAaron has failed to allege a likelihood that its proposed clinic would imminently\n\nhave come into existence absent the challenged statutes, it cannot assert that the\n\nchallenged statutes, instead of Aaron’s lack of concrete plans to establish its clinic,\n\ncaused this injury.\n\n 3. Aaron’s Alleged Injury Based on Stigmatization and Discrimination Is\n Insufficient to Establish Standing.\n We also conclude that Aaron fails to establish its direct standing based on its\n\nallegation that the challenged statutes discriminate against and stigmatize it. A\n\nplaintiff alleging a stigmatic injury based on discrimination must point to “some\n\nconcrete interest with respect to which [he] [is] personally subject to\n\ndiscriminatory treatment,” and “[t]hat interest must independently satisfy the\n\ncausation requirement of standing doctrine.” Allen v. Wright, 468 U.S. 737, 757\n\nn.22 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\n\nComponents, 572 U.S. 118 (2014). Here, even if the challenged statutes\n\ndiscriminate against opioid-addicted persons who are disabled, Aaron has not\n\nestablished that it is among the class of persons whose concrete interests are\n\naffected by discriminatory treatment. Aaron is a non-disabled entity, and its claims\n\nof direct injury are speculative. Because Aaron has not been subjected to\n\n\n 15\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 16 of 18\n\n\ndiscriminatory treatment, we agree with the district court that Aaron’s vague\n\nassertions of stigma and discrimination cannot establish its direct standing.\n\n 4. Aaron’s Remaining Arguments Regarding Standing Do Not Persuade Us.\n\n Aaron responds that it has standing because other federal courts have held\n\nthat plaintiffs whose attempts to establish methadone clinics were thwarted by\n\nlocal regulations had standing to challenge those regulations, but those other\n\ndecisions involved plaintiffs who had taken far more concrete steps than Aaron has\n\nallegedly taken. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,\n\n358–62 (4th Cir. 2008) (observing that the plaintiff “unquestionably” met the\n\nArticle III standing requirements where it (1) was in the business of operating\n\nmethadone clinics, (2) located a particular clinic location and signed a lease, (3)\n\nconsulted with local officials about founding its clinic, (4) applied for the required\n\nfederal and state certifications and permits, (5) submitted detailed plans about the\n\nrequested clinic site to county officials, and (6) associated with specific\n\nprospective patients who joined as plaintiffs to the lawsuit); see also New\n\nDirections Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007);\n\nAddiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005); MX\n\nGrp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). None of these\n\ndecisions persuades us that Aaron has standing.\n\n\n\n\n 16\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 17 of 18\n\n\n Aaron asserts that the lack of specific factual allegations about its plan to\n\nestablish a clinic should be excused because, by failing to take actions to establish\n\nits clinic, Aaron was mitigating its damages in preparation for this suit. Yet Aaron\n\nhas cited no authority suggesting that the Article III requirements for a prospective\n\nbusiness should be set aside whenever a duty to mitigate might be implicated.\n\nAaron must point to “specific, concrete facts demonstrating that the challenged\n\n[statutes] harm” it, Warth, 422 U.S. at 508, regardless of any duty it had to mitigate\n\ndamages.\n\n Aaron argues that the moratorium “preemptively blocked” the formation of\n\nrelationships with potential clients. But in the absence of any non-speculative\n\nreasons to believe Aaron would have imminently opened a methadone clinic but\n\nfor the challenged statutes, this argument merely piles speculation on speculation.\n\n Aaron points out that the enforcement provision of Title II of the American\n\nwith Disabilities Act states that an action may be brought by “any person alleging\n\ndiscrimination on the basis of disability.” 42 U.S.C. § 12133. Even if this provision\n\ngave Aaron a cause of action—which we do not decide—“it is settled that\n\nCongress cannot erase Article III’s standing requirements by statutorily granting\n\nthe right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136\n\nS. Ct. at 1547–48 (alteration adopted) (citation and internal quotation marks\n\nomitted).\n\n\n\n 17\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 18 of 18\n\n\n C. Aaron Has Failed to Establish that It Has Third-Party Standing.\n\n We also agree with the district court that Aaron lacks third-party standing to\n\nassert the injuries suffered by its prospective clients. A plaintiff must satisfy three\n\ncriteria to bring claims on behalf of third parties: (1) the plaintiff must have\n\nsuffered an “injury-in-fact” that gives it a “sufficiently concrete interest” in the\n\ndispute; (2) the plaintiff must have a close relationship to the third party; and (3)\n\nthere must be a hindrance to the third party’s ability to protect its own interests.\n\nYoung Apartments, 529 F.3d at 1042 (citation omitted). Because we have held that\n\nAaron lacks an injury in fact, its third-party-standing argument fails. And we need\n\nnot reach the question whether Aaron also lacks statutory standing to assert third-\n\nparty claims under the Rehabilitation Act and the Americans with Disabilities Act.\n\n IV. CONCLUSION\n\n We AFFIRM the dismissal of Aaron’s complaint for lack of jurisdiction.\n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356256/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}]}	TJOFLAT	PRYOR	GILMAN	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579003/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15144\n ________________________\n\n D.C. Docket No. 1:17-cv-01034-WSD\n\n\n\nAARON PRIVATE CLINIC MANAGEMENT LLC,\n\n Plaintiff-Appellant,\n versus\n\nFRANK W. BERRY, in his official capacity as Commissioner of the Georgia\nDepartment of Community Health, and\nNATHAN DEAL, in his official capacity as Governor of Georgia,\n\n Defendants-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n _______________________\n\n (January 4, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n* Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 2 of 18\n\n\n This appeal requires us to decide whether a limited liability company that\n\nmade preliminary plans to operate a methadone clinic has standing to challenge\n\nstate laws that restrict the licensure of narcotic-treatment facilities. Aaron Private\n\nClinic Management sued certain Georgia officials after two Georgia laws\n\ntemporarily suspended the issuance of new licenses for narcotic-treatment facilities\n\nand imposed additional licensing requirements for future facilities. The district\n\ncourt dismissed the action for lack of standing. Because the challenge to the\n\nmoratorium is in part moot and because we agree with the district court that Aaron\n\nlacks standing to assert its other claims, we affirm.\n\n I. BACKGROUND\n\n Aaron Private Clinic Management is a for-profit company that asserts that it\n\n“intends to meet the standards to establish an [opioid-treatment program] in\n\nGeorgia.” Frank Berry is the commissioner for the Georgia Department of\n\nCommunity Health and, in that capacity, oversees the agency that issues licenses\n\nfor narcotic-treatment facilities in Georgia. Nathan Deal is the governor of\n\nGeorgia, and he has the ultimate authority to direct and control the operations of\n\nthe Georgia Department of Community Health.\n\n In May 2017, Aaron filed a complaint alleging that two Georgia statutes\n\nviolate section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the\n\nAmericans with Disabilities Act, 42 U.S.C. § 12132. First, Aaron challenges a\n\n\n\n 2\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 3 of 18\n\n\n2016 statute, which it calls the “Licensing Moratorium,” that enacted “[a]\n\ntemporary moratorium on the acceptance of new applications for licensure of\n\nnarcotic treatment programs,” O.C.G.A. § 26-5-21(e). The Licensing Moratorium\n\nprohibited new applications from being accepted between June 1, 2016, and June\n\n30, 2017. Id. § 26-5-21(f). Second, Aaron challenges a 2017 statute, which it calls\n\nthe “License Cap,” that supersedes the Licensing Moratorium and provides that\n\nGeorgia’s Department of Community Health must establish minimum standards of\n\nquality for narcotic-treatment programs and provides for annual or biannual open-\n\nenrollment periods for program applications, see id. § 26-5-40 et seq. The License\n\nCap also extended the prohibition on accepting new licensure applications from\n\nJune 30, 2017, to December 1, 2017. Id. § 26-5-46(d).\n\n Aaron contends that the Licensing Moratorium and License Cap block it\n\nfrom establishing an opioid-treatment program and impose “arbitrary restrictions\n\nand burdens” on methadone clinics. Aaron asserts that it sues on its own behalf and\n\n“on behalf of its prospective patients who are opiate-addicted, who are qualified\n\ndisabled under the [Americans with Disabilities Act], and who are prospective\n\npatients of [Aaron].” Counts one through four of the complaint assert that the\n\nLicensing Moratorium and the License Cap are facially invalid under the\n\nRehabilitation Act and the Americans with Disabilities Act. Counts five and six\n\nassert an equal-protection challenge to the statutes, contending that “the State of\n\n\n\n 3\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 4 of 18\n\n\nGeorgia’s actions and disparate treatment . . . cause disproportionate impact to\n\n[Aaron] and the disabled persons [Aaron] intends to serve.” Aaron requests an\n\naward of compensatory damages and litigation expenses, a permanent injunction\n\nenjoining the defendants from continuing to violate the Americans with\n\nDisabilities Act and the Rehabilitation Act by “denying or delaying [Aaron’s]\n\nability to locate an [opioid-treatment program]” in Georgia, and a declaration that\n\nthe challenged statutes are void and unenforceable.\n\n In its complaint, Aaron alleges few facts about its plan to establish a\n\nmethadone clinic. Aaron first alleges that it is a Georgia limited liability company\n\nwith a principal place of business at 4403 Northside Parkway NW, Suite 1413,\n\nAtlanta, Georgia 30327. This address is the same as that of the law office of\n\nAaron’s counsel, James A. Dunlap. Aaron also alleges that it will use the “latest\n\nmedical technologies, including methadone maintenance treatment, to address the\n\nphysical symptoms of [opioid] addiction in combination with . . .\n\npsychotherapeutic interventions.” Aaron further alleges that its prospective opiate-\n\naddicted clients are disabled under the Rehabilitation Act and the Americans with\n\nDisabilities Act, and that Aaron’s programs will operate as “supervised\n\nrehabilitation programs” for persons with disabilities as described under federal\n\nlaw. And Aaron alleges in each count of the complaint that the challenged statutes\n\nhave caused it to expend additional time and financial resources, to lose the\n\n\n\n 4\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 5 of 18\n\n\nopportunity to conduct its business, and to incur “additional costs and expenses,\n\nattorney’s fees, interest, and cost of capital” from “interference and delays with\n\nplanning, raising investment funds, hiring, and other normal processes related to\n\nopening a business.” These allegations are all the complaint contains about\n\nAaron’s plan to establish a methadone clinic.\n\n Although Aaron offers few specifics about its proposed clinic, its complaint\n\nincludes more detailed allegations about the need for methadone clinics in Georgia.\n\nAaron alleges that the annual number of opioid overdose deaths in Georgia is\n\nskyrocketing, rising from roughly 200 in 2006 to nearly 1,000 in 2015. Aaron\n\nfurther asserts that many of Georgia’s methadone clinics are currently overcapacity\n\nand cannot accept new patients. Aaron also contends that the lack of capacity\n\ncauses a variety of harms to opioid-addicted persons, who face price gouging,\n\nlonger travel and wait times, and a lack of competition for treatment options. And\n\nAaron cites evidence suggesting that methadone treatment has proven to be\n\neffective in reducing the number of drug overdoses in a community.\n\n After Aaron filed its complaint, the defendants moved to dismiss on several\n\ngrounds, including for lack of standing. The district court granted the motion to\n\ndismiss. The court first determined that the complaint fails to establish that Aaron\n\ndirectly suffered an injury in fact that is “actual or imminent, not ‘conjectural’ or\n\n‘hypothetical.’” The court explained that the complaint alleges at most that Aaron\n\n\n\n 5\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 6 of 18\n\n\nwas in the early stages of the planning process, not that it would have been\n\nprepared to offer treatment to its prospective clients but for the challenged statutes.\n\nThe court also stated that, although Aaron labels the requirements imposed by the\n\nLicense Cap as “arbitrary and discriminatory,” it fails to identify any “specific\n\nrules with which it cannot comply, and does not allege why they are discriminatory\n\nor how they prevent [it] from establishing its clinic in the future.” And the court\n\nobserved that Aaron has not alleged that it had applied for a license and been\n\ndenied, that it would be prevented from participating in the open enrollment for\n\nnew licensure applications, or that it would be unsuccessful in such applications if\n\nthey were submitted. The district court also rejected Aaron’s contention that it had\n\nthird-party standing to assert the injuries suffered by its prospective clients. The\n\ndistrict court ruled that Aaron’s third-party-standing argument failed because\n\nAaron did not establish that it has suffered an injury in fact, that it has a close\n\nrelationship to a third party that is being discriminated against, and that there is\n\nsome hindrance to the third party’s ability to protect his or her own interests. See\n\nYoung Apartments v. Town of Jupiter, 529 F.3d 1027, 1042 (11th Cir. 2008).\n\nFinally, the district court ruled that, even if Aaron had sufficiently alleged direct or\n\nthird-party standing, it lacks statutory standing to assert these claims under either\n\nthe Rehabilitation Act or the Americans with Disabilities Act.\n\n\n\n\n 6\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 7 of 18\n\n\n II. STANDARD OF REVIEW\n\n We review the dismissal of a complaint de novo. Culverhouse v. Paulson &\n\nCo., 813 F.3d 991, 993 (11th Cir. 2016).\n\n III. DISCUSSION\n\n We divide our discussion in three parts. First, we explain that Aaron’s\n\nrequest for declaratory and injunctive relief regarding the temporary moratorium\n\non the acceptance of new licensure applications is moot. Second, we explain that\n\nAaron has failed to establish that it has direct standing. Third, we explain that\n\nAaron has failed to establish that it has third-party standing to assert the injuries of\n\nits prospective clients.\n\n A. Aaron’s Request for Declaratory and Injunctive Relief Regarding the\n Temporary Moratorium is Moot.\n\n Although the district court did not consider and the parties have not briefed\n\nthe issue of mootness, “[i]t is incumbent upon this court to consider issues of\n\nmootness sua sponte and, absent an applicable exception to the mootness doctrine,\n\nto dismiss any appeal that no longer presents a viable case or controversy.” Hunt v.\n\nAimco Props., 814 F.3d 1213, 1220 (11th Cir. 2016) (quoting Pac. Ins. Co. v. Gen.\n\nDev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)). “A case is moot when it no\n\nlonger presents a live controversy with respect to which the court can give\n\nmeaningful relief.” Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.\n\n1993)). Absent exceptional circumstances, a challenge to the enforcement of a\n\n\n 7\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 8 of 18\n\n\nstatute becomes moot when that law is no longer effective. See Burke v. Barnes,\n\n479 U.S. 361, 363 (1987) (explaining that challenges to an expired statute, like\n\nthose made to a repealed statute, are moot). And although the district court did not\n\nrely on mootness in dismissing the complaint, “[w]e may affirm on any ground\n\nsupported by the record, regardless of whether that ground was relied upon or even\n\nconsidered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).\n\n As Aaron acknowledged at oral argument, its request for declaratory and\n\ninjunctive relief about the Licensing Moratorium was rendered moot by the\n\nexpiration of the moratorium in June 2017, and its similar request about the\n\nLicense Cap’s extension of the moratorium was rendered moot when that provision\n\nexpired in December 2017. Because no exception to the mootness doctrine applies\n\nto these requests for declaratory and injunctive relief, they are moot, and we affirm\n\nthe dismissal of them.\n\n B. Aaron Has Failed to Establish that It Has Article III Standing.\n\n The district court ruled, and we agree, that Aaron lacks direct standing\n\nbecause it failed to plead facts establishing that it had directly suffered an actual or\n\nimminent injury in fact. Article III of the Constitution limits the subject-matter\n\njurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. Art. III,\n\n§ 2. Standing “is the threshold question in every federal case, determining the\n\npower of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).\n\n\n\n 8\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 9 of 18\n\n\n“In the absence of standing, a court is not free to opine in an advisory capacity\n\nabout the merits of a plaintiff’s claims, and the court is powerless to continue.”\n\nCAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.\n\n2006) (citations and internal quotation marks omitted).\n\n To establish its Article III standing, Aaron must satisfy three requirements.\n\nFirst, it “must have suffered an injury in fact—an invasion of a legally protected\n\ninterest which is (a) concrete and particularized and (b) actual or imminent, not\n\nconjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560\n\n(1992) (citations and internal quotation marks omitted). Second, “there must be a\n\ncausal connection between the injury and the conduct complained of—the injury\n\nhas to be fairly traceable to the challenged action of the defendant.” Id. (alterations\n\nadopted) (internal quotation marks omitted). Third, “it must be likely, as opposed\n\nto merely speculative, that the injury will be redressed by a favorable decision.” Id.\n\nat 561 (internal quotation marks omitted).\n\n Each element of standing is “an indispensable part of the plaintiff’s case”\n\nand “must be supported in the same way as any other matter on which the plaintiff\n\nbears the burden of proof, i.e., with the manner and degree of evidence required at\n\nthe successive stages of the litigation.” Id. “While the proof required to establish\n\nstanding increases as the suit proceeds, the standing inquiry remains focused on\n\nwhether the party invoking jurisdiction had the requisite stake in the outcome when\n\n\n\n 9\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 10 of 18\n\n\nthe suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)\n\n(citation omitted).\n\n To satisfy its burden at the pleading stage, a plaintiff must “clearly allege\n\nfacts demonstrating each element,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547\n\n(2016) (alteration adopted) (citation and internal quotation marks omitted), and we\n\nevaluate standing on a motion to dismiss based on the facts alleged in the\n\ncomplaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.\n\n2013). To adequately allege injury in fact, it is not enough that a complaint “‘sets\n\nforth facts from which we could imagine an injury sufficient to satisfy Article III’s\n\nstanding requirements,’ since ‘we should not speculate concerning the existence\n\nof standing, nor should we imagine or piece together an injury sufficient to give\n\nplaintiff standing when it has demonstrated none.’” Bochese v. Town of Ponce\n\nInlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v.\n\nFla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000)). “If the\n\nplaintiff fails to meet its burden, this court lacks the power to create jurisdiction by\n\nembellishing a deficient allegation of injury.” Id.\n\n Aaron contends that it suffered three injuries sufficient to establish its\n\nstanding under Article III. First, Aaron asserts that the Licensing Moratorium and\n\nLicense Cap precluded or hindered it from developing an opioid-treatment\n\nprogram in Georgia and caused it to suffer lost profits. Second, Aaron alleges that\n\n\n\n 10\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 11 of 18\n\n\nthe challenged statutes caused it to incur “additional costs and expenses, attorney’s\n\nfees, interest, and cost of capital” from “interference and delays with planning,\n\nraising investment funds, hiring, and other normal processes related to opening a\n\nbusiness.” Third, Aaron alleges that the challenged statutes discriminate against\n\nand stigmatize it. We address each proffered injury in turn and determine that\n\nAaron has failed to establish its Article III standing.\n\n 1. Aaron’s Alleged Injury Based on Lost Profits Is Insufficient to Establish\n Standing.\n\n We begin with Aaron’s assertion that the challenged statutes thwarted its\n\nplan to open a methadone clinic and caused it to suffer lost profits. The district\n\ncourt concluded that this alleged injury was speculative. We agree with the district\n\ncourt.\n\n Although the complaint alleges that Aaron aspired to open a methadone\n\nclinic someday, it offers no facts suggesting that the “someday” was imminent or\n\nthat Aaron had any concrete plan in place for bringing its clinic into operation. The\n\nmost that the complaint alleges Aaron has done is form a limited liability company\n\nthat will serve as a management company for future methadone clinics, and it\n\nvaguely alleges “interference and delays with planning, raising investment funds,\n\nhiring, and other normal processes related to opening a business.” But these\n\nallegations are a far cry from alleging that, absent the challenged statutes, Aaron\n\nimmediately intended to bring, and actually could bring, its clinic into operation.\n\n\n 11\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 12 of 18\n\n\nAnd Aaron has failed to allege that it has taken any concrete steps—such as\n\nselecting a clinic location, securing a lease option, consulting with relevant\n\ngovernment officials, applying for the necessary permits or certifications, or\n\nassociating with potential clients—that suggest such an immediate intention or\n\nplan. Because Aaron has alleged only that it intends to found a clinic at some\n\nunspecified time in the future, its “‘some day’ intention[]—without any description\n\nof concrete plans, or indeed even any specification of when the some day will be—\n\ndo[es] not support a finding of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at\n\n564.\n\n Ample precedent makes clear that Aaron must allege more than a bare\n\nintention to someday found a clinic. In Village of Arlington Heights v.\n\nMetropolitan Housing Development Corp., 429 U.S. 252 (1977), and Jackson v.\n\nOkaloosa County, 21 F.3d 1531 (11th Cir. 1994), the Supreme Court and this\n\nCourt held that plaintiffs alleging injuries related to proposed housing projects had\n\nto establish, among other things, a “substantial probability” that the projects would\n\ncome into existence absent the challenged action. See Arlington Heights, 429 U.S.\n\nat 264; Jackson, 21 F.3d at 1537–38. The plaintiffs in both decisions—unlike\n\nAaron—met this burden by pointing to specific and concrete facts that suggested\n\nsuch a substantial probability. See Arlington Heights, 429 U.S. at 255–58\n\n(observing that the developer of a proposed housing project was already in the\n\n\n\n 12\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 13 of 18\n\n\nbusiness of building similar housing projects, had entered into a 99-year lease and\n\nan accompanying agreement to purchase the land for the proposed project, had\n\nhired an architect and produced detailed plans for the project, and had submitted a\n\nvariety of detailed plans and reports as a part of a petition for rezoning); Jackson,\n\n21 F.3d at 1537–38 (observing that the bidding process for the proposed housing\n\nproject was nearly completed, the project’s sources of funding were established,\n\nand a bidder had submitted a bid to construct the facility at a specific proposed\n\nsite). And, in other factual contexts, the Supreme Court has repeatedly explained\n\nthat a plaintiff asserting that it would have engaged in an activity absent the\n\nchallenged statute must establish that it was “able and ready” to do so. See, e.g.,\n\nGratz v. Bollinger, 539 U.S. 244, 262 (2003) (explaining that the plaintiff had\n\nstanding to challenge affirmative-action policies at the defendant university\n\nbecause he established that he was “able and ready” to apply once the university\n\nstopped using race in admissions); Ne. Fla. Chapter, Associated Gen. Contractors\n\nof Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (holding that the plaintiffs\n\nhad standing to challenge an ordinance giving preferential treatment to minority-\n\nowned businesses because they “demonstrate[d] that [they were] able and ready to\n\nbid on contracts” (emphasis added)); Clements v. Fashing, 457 U.S. 957, 962\n\n(1982) (holding that plaintiff officeholders had standing because they credibly\n\nalleged that they would have announced their candidacy for other offices but for\n\n\n\n 13\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 14 of 18\n\n\nthe “automatic resignation” provision they were challenging). It is not enough for\n\nAaron to allege that there exists a need for methadone clinics in Georgia in the\n\nabsence of facts that would suggest its readiness to supply that need.\n\n A plaintiff alleging that it would have opened a business absent the\n\nchallenged action must point to at least some facts suggesting a likelihood that its\n\nbusiness would have come about absent the challenged action. Aaron has alleged\n\nno supporting facts suggesting this likelihood. So its first assertion of injury fails.\n\n2. Aaron’s Alleged Injury Based on Additional Costs and Expenses Related to the\n Challenged Statutes Is Insufficient to Establish Standing.\n Aaron’s second asserted injury—that it incurred “additional costs and\n\nexpenses, attorney’s fees, interest, and cost of capital” from “interference and\n\ndelays with planning, raising investment funds, hiring, and other normal processes\n\nrelated to opening a business”—also fails to suffice. The threadbare allegations of\n\nadditional costs, expenses, and attorney’s fees are so vague that they do not\n\nestablish any of the elements of Article III standing. We cannot divine what these\n\nallegedly incurred costs are referring to, and so we cannot assess whether they give\n\nAaron a sufficient stake in this appeal, whether they are fairly traceable to the\n\nchallenged statutes, or whether they will be redressed by a favorable decision. See\n\nWarth, 422 U.S. at 508 (holding that a plaintiff must plead “specific, concrete facts\n\ndemonstrating that the challenged [action] harm[s] him, and that he personally\n\nwould benefit in a tangible way from the court's intervention” (emphasis altered)).\n\n\n 14\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 15 of 18\n\n\nAs to the allegation of “interest[] and cost of capital,” it appears that Aaron is\n\nsuggesting that it has some capital available for its clinic and that the challenged\n\nstatutes have prevented it from putting these funds to productive use. But because\n\nAaron has failed to allege a likelihood that its proposed clinic would imminently\n\nhave come into existence absent the challenged statutes, it cannot assert that the\n\nchallenged statutes, instead of Aaron’s lack of concrete plans to establish its clinic,\n\ncaused this injury.\n\n 3. Aaron’s Alleged Injury Based on Stigmatization and Discrimination Is\n Insufficient to Establish Standing.\n We also conclude that Aaron fails to establish its direct standing based on its\n\nallegation that the challenged statutes discriminate against and stigmatize it. A\n\nplaintiff alleging a stigmatic injury based on discrimination must point to “some\n\nconcrete interest with respect to which [he] [is] personally subject to\n\ndiscriminatory treatment,” and “[t]hat interest must independently satisfy the\n\ncausation requirement of standing doctrine.” Allen v. Wright, 468 U.S. 737, 757\n\nn.22 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\n\nComponents, 572 U.S. 118 (2014). Here, even if the challenged statutes\n\ndiscriminate against opioid-addicted persons who are disabled, Aaron has not\n\nestablished that it is among the class of persons whose concrete interests are\n\naffected by discriminatory treatment. Aaron is a non-disabled entity, and its claims\n\nof direct injury are speculative. Because Aaron has not been subjected to\n\n\n 15\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 16 of 18\n\n\ndiscriminatory treatment, we agree with the district court that Aaron’s vague\n\nassertions of stigma and discrimination cannot establish its direct standing.\n\n 4. Aaron’s Remaining Arguments Regarding Standing Do Not Persuade Us.\n\n Aaron responds that it has standing because other federal courts have held\n\nthat plaintiffs whose attempts to establish methadone clinics were thwarted by\n\nlocal regulations had standing to challenge those regulations, but those other\n\ndecisions involved plaintiffs who had taken far more concrete steps than Aaron has\n\nallegedly taken. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,\n\n358–62 (4th Cir. 2008) (observing that the plaintiff “unquestionably” met the\n\nArticle III standing requirements where it (1) was in the business of operating\n\nmethadone clinics, (2) located a particular clinic location and signed a lease, (3)\n\nconsulted with local officials about founding its clinic, (4) applied for the required\n\nfederal and state certifications and permits, (5) submitted detailed plans about the\n\nrequested clinic site to county officials, and (6) associated with specific\n\nprospective patients who joined as plaintiffs to the lawsuit); see also New\n\nDirections Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007);\n\nAddiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005); MX\n\nGrp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). None of these\n\ndecisions persuades us that Aaron has standing.\n\n\n\n\n 16\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 17 of 18\n\n\n Aaron asserts that the lack of specific factual allegations about its plan to\n\nestablish a clinic should be excused because, by failing to take actions to establish\n\nits clinic, Aaron was mitigating its damages in preparation for this suit. Yet Aaron\n\nhas cited no authority suggesting that the Article III requirements for a prospective\n\nbusiness should be set aside whenever a duty to mitigate might be implicated.\n\nAaron must point to “specific, concrete facts demonstrating that the challenged\n\n[statutes] harm” it, Warth, 422 U.S. at 508, regardless of any duty it had to mitigate\n\ndamages.\n\n Aaron argues that the moratorium “preemptively blocked” the formation of\n\nrelationships with potential clients. But in the absence of any non-speculative\n\nreasons to believe Aaron would have imminently opened a methadone clinic but\n\nfor the challenged statutes, this argument merely piles speculation on speculation.\n\n Aaron points out that the enforcement provision of Title II of the American\n\nwith Disabilities Act states that an action may be brought by “any person alleging\n\ndiscrimination on the basis of disability.” 42 U.S.C. § 12133. Even if this provision\n\ngave Aaron a cause of action—which we do not decide—“it is settled that\n\nCongress cannot erase Article III’s standing requirements by statutorily granting\n\nthe right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136\n\nS. Ct. at 1547–48 (alteration adopted) (citation and internal quotation marks\n\nomitted).\n\n\n\n 17\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 18 of 18\n\n\n C. Aaron Has Failed to Establish that It Has Third-Party Standing.\n\n We also agree with the district court that Aaron lacks third-party standing to\n\nassert the injuries suffered by its prospective clients. A plaintiff must satisfy three\n\ncriteria to bring claims on behalf of third parties: (1) the plaintiff must have\n\nsuffered an “injury-in-fact” that gives it a “sufficiently concrete interest” in the\n\ndispute; (2) the plaintiff must have a close relationship to the third party; and (3)\n\nthere must be a hindrance to the third party’s ability to protect its own interests.\n\nYoung Apartments, 529 F.3d at 1042 (citation omitted). Because we have held that\n\nAaron lacks an injury in fact, its third-party-standing argument fails. And we need\n\nnot reach the question whether Aaron also lacks statutory standing to assert third-\n\nparty claims under the Rehabilitation Act and the Americans with Disabilities Act.\n\n IV. CONCLUSION\n\n We AFFIRM the dismissal of Aaron’s complaint for lack of jurisdiction.\n\n\n\n\n 18\n[END_CASE]", "role": "user" } ]
4,579,669	Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.	Curtis Solomon v. United States	2019-01-08	17-14830	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Pryor, Grant, Hull", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14830\n Non-Argument Calendar\n ________________________\n\n D.C. Docket Nos. 0:16-cv-61410-DMM,\n 0:08-cr-60090-DMM-1\n\n\nCURTIS SOLOMON,\n\n Petitioner-Appellant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (January 8, 2019)\n\nBefore WILLIAM PRYOR, GRANT and HULL, Circuit Judges.\n\nPER CURIAM:\n\n Curtis Solomon appeals following the district court’s denial of his\n\nauthorized successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 2 of 13\n\n\nsentence. Back in 2017, the district court granted Solomon a certificate of\n\nappealability (“COA”) on the issue of whether the Supreme Court’s decision in\n\nJohnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), applies to 18 U.S.C.\n\n§ 924(c)(3)(B). Subsequently, the Supreme Court decided Sessions v. Dimaya,\n\n584 U.S. __, 138 S. Ct. 1204 (2018), and we held this appeal pending our en banc\n\ndecision in Ovalles v. United States (“Ovalles II”), 905 F.3d 1231 (11th Cir. 2018)\n\n(en banc). After review, we affirm.\n\n I. PROCEDURAL HISTORY\n\nA. Convictions, Direct Appeal, and First § 2255 Motion\n\n In 2008, a federal grand jury charged Solomon with: (1) one count of\n\nconspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)\n\n(Count 1); (2) one count of conspiracy to use and carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy\n\ncharged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 2);\n\n(3) 17 substantive counts of Hobbs Act robbery, in violation of 18 U.S.C.\n\n§§ 1951(a) and 2 (Counts 3, 5, 7, 9 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33,\n\nand 35); and (4) 17 substantive counts of carrying a firearm during and in relation\n\nto a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 4, 6, 8,\n\n10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36). Each of the substantive\n\n§ 924(c) counts was predicated on the preceding substantive Hobbs Act robbery\n\n\n 2\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 3 of 13\n\n\ncount. For example, Count 3 charged Solomon with the December 11, 2007\n\nrobbery of a Papa John’s Pizza employee, and Count 4 correspondingly charged\n\nhim with carrying a firearm during and in relation to that robbery. All in all, the\n\nindictment charged that from December 2007 through late March 2008, Solomon\n\nused a firearm to rob a variety of restaurants, including several pizza places and\n\nChinese food restaurants and multiple Subway locations.\n\n Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day\n\ntrial, the jury found Solomon guilty on all but two of the charged counts, Counts 23\n\nand 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit\n\nHobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy;\n\n(3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c)\n\ncounts.\n\n At Solomon’s sentencing in 2009, the district court imposed a total sentence\n\nof 4,641 months’ imprisonment. This sentence consisted of: (1) 57 months each as\n\nto Counts 1 (Hobbs Act conspiracy), 2 (§ 924(c) conspiracy), and 3, 5, 7, 9, 11, 13,\n\n15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be\n\nserved concurrently with each other; (2) a consecutive sentence of 84 months as to\n\nCount 4 (first substantive § 924(c) conviction); and (3) 300 months each as to\n\nCounts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional\n\n\n 3\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 4 of 13\n\n\n§ 924(c) convictions), to be served consecutive to each other and to all of the other\n\ncounts.\n\n Solomon appealed, raising several conviction issues and challenging the\n\nimposition of consecutive sentences on his substantive § 924(c) convictions. See\n\nUnited States v. Lewis, 433 F. App’x 844, 845-46 (11th Cir. 2011) (unpublished).\n\nIn 2011, this Court affirmed Solomon’s convictions and sentences. Id. at 847. In\n\n2012, Solomon filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or\n\ncorrect his sentence, raising two claims of ineffective assistance of trial counsel. In\n\n2013, the district court denied Solomon’s original § 2255 motion and denied him a\n\nCOA. In 2014, this Court also denied Solomon a COA.\n\nB. June 2016 Successive § 2255 Motion\n\n On June 10, 2016, Solomon filed an application for leave to file a successive\n\n§ 2255 motion with this Court. In relevant part, Solomon’s June 2016 application\n\nsought to challenge his § 924(c) convictions and sentences in light of the Supreme\n\nCourt’s decision in Johnson, which invalidated the residual clause of the Armed\n\nCareer Criminal Act (“ACCA”) as unconstitutionally vague.\n\n On July 8, 2016, this Court denied in part and granted in part Solomon’s\n\napplication. This Court denied Solomon’s application as to his substantive\n\n§ 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34,\n\nand 36. Each of those convictions corresponded to a companion substantive Hobbs\n\n\n 4\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 5 of 13\n\n\nAct robbery conviction. Following our precedent in In re Saint Fleur, 824 F.3d\n\n1337 (11th Cir. 2016), this Court held that substantive Hobbs Act robbery is a\n\ncrime of violence under § 924(c)(3)(A)’s elements clause. 1\n\n This Court, however, granted Solomon’s application as to his § 924(c)\n\nconspiracy conviction in Count 2 because that conviction corresponded to his\n\nHobbs Act conspiracy conviction in Count 1. This Court explained that “an\n\napplicant has made a prima facie case, for purposes of second or successive\n\nreview, when seeking to challenge a conviction for conspiracy to commit Hobbs\n\nAct robbery based on an argument that such a conviction meets only the residual\n\nclause of § 924(c).” (citing In re Pinder, 824 F.3d 977 (11th Cir. 2016).\n\nAccordingly, as a threshold determination, this Court granted in part Solomon’s\n\napplication to file a successive § 2255 motion, but only with respect to his\n\nchallenge to his § 924(c) conspiracy-related conviction in Count 2.\n\n\n\n\n 1\n Subsequent to Saint Fleur, five other circuits have held that Hobbs Act robbery qualifies\nas a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Barrett, 903\nF.3d 166, 174 (2d Cir. 2018), pet. for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States\nv. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 2018 WL 5017618 (Nov.\n13, 2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch,\n850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017); United States v. Rivera,\n847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S. Ct 2228 (2017). This Court also held again\nin a direct appeal case that Hobbs Act robbery qualifies as a crime of violence under\n§ 924(c)(3)(A). United States v. St. Hubert, 909 F.3d 335, 345-51 (11th Cir. 2018).\n 5\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 6 of 13\n\n\nC. District Court Proceedings on Successive § 2255 Motion\n\n Following this Court’s order, Solomon’s case was returned to the district\n\ncourt for adjudication of his authorized successive § 2255 motion. Solomon was\n\nrepresented by counsel in the district court. In July 2017, a magistrate judge issued\n\na report and recommendation (“R&R”) recommending that Solomon’s successive\n\n§ 2255 motion be denied. As to the merits of Solomon’s claim, the magistrate\n\njudge determined, based on our then-recent decision in Ovalles v. United States\n\n(“Ovalles I”), 861 F.3d 1257 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d\n\n1231 (11th Cir. 2018), that Johnson’s vagueness holding did not apply to or\n\ninvalidate § 924(c)(3)(B)’s residual clause. The magistrate judge noted that\n\nSolomon did not dispute that his Hobbs Act conspiracy conviction satisfied\n\n§ 924(c)(3)(B)’s residual clause, but rather argued only that the residual clause was\n\nunconstitutional. Because that argument lacked merit in light of Ovalles I, the\n\nmagistrate judge concluded that Solomon’s successive § 2255 motion should be\n\ndenied.2\n\n Solomon objected to the R&R. Solomon argued that the district court\n\nshould not rely on Ovalles I because (1) this Court had withheld the mandate in\n\n\n\n 2\n In the interest of completeness, the magistrate judge went on to address whether, if\nJohnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A)’s elements clause.\nThe magistrate judge determined that it would not. The district court, however, did not adopt\nthat portion of the magistrate judge’s R&R, as it was unnecessary to the resolution of Solomon’s\nsuccessive § 2255 motion.\n 6\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 7 of 13\n\n\nthat case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya\n\nwas then pending in the Supreme Court and might impact the reasoning applied in\n\nOvalles I to distinguish § 924(c) from the ACCA. Solomon also contended that,\n\neven if Ovalles I correctly held that § 924(c)(3)(B)’s residual clause was\n\nconstitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs\n\nAct conspiracy did not qualify as a crime of violence under § 924(c)(3)(B)’s\n\nresidual clause. Specifically, Solomon argued that any risk of injury that may\n\noccur in the context of a Hobbs Act conspiracy “arises from the object of the\n\nconspiracy, which is a separate and distinct offense that is temporally removed\n\nfrom the scope-of-the-risk analysis under § 924(c)(3)(B).” In other words,\n\nSolomon contended that the Hobbs Act conspiracy itself does not require proof of\n\nany overt act and thus a conspiracy poses no risk of injury.\n\n The government responded that Ovalles I was binding precedent regardless\n\nof whether the mandate had issued and should be applied in Solomon’s case. The\n\ngovernment further asserted that Solomon’s alternative argument—that Hobbs Act\n\nconspiracy did not qualify under the residual clause—was not cognizable in the\n\ncontext of a successive § 2255 motion. The government explained that this\n\nCourt’s grant of leave for Solomon to file a successive § 2255 motion was limited\n\nto his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson\n\nand did not encompass other challenges to the validity of that conviction.\n\n\n 7\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 8 of 13\n\n\n Over Solomon’s objections, the district court adopted the R&R’s\n\nrecommendation that Solomon’s motion be denied “because Johnson does not\n\napply to § 924(c)(3)(B).” However, the district court granted Solomon a COA “as\n\nto whether Johnson applies to § 924(c)(3)(B).” Solomon now appeals.\n\n II. LEGAL BACKGROUND\n\n The legal landscape in this case has developed since the district court ruled\n\non Solomon’s authorized successive § 2255 motion. We therefore detail those\n\nlegal developments below before turning to the merits of Solomon’s case.\n\n Following the Supreme Court’s decision in Johnson and this Court’s\n\ndecision in Ovalles I, the Supreme Court decided Sessions v. Dimaya. In Dimaya,\n\nthe Supreme Court addressed whether Johnson’s vagueness holding as to the\n\nACCA’s residual clause applied to and invalidated the residual clause in 18 U.S.C.\n\n§ 16(b)’s crime of violence definition. 584 U.S. at __, 138 S. Ct. at 1210-12.\n\nSection 16(b) defined a crime of violence as “any other offense that is a felony and\n\nthat, by its nature, involves a substantial risk that physical force against the person\n\nor property of another may be used in the course of committing the offense.” 18\n\nU.S.C. § 16(b). Strictly applying the ordinary case or categorical approach, the\n\nSupreme Court in Dimaya held that § 16(b)’s residual clause, as incorporated into\n\nthe Immigration and Nationality Act, like the ACCA’s residual clause in Johnson,\n\n\n\n\n 8\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 9 of 13\n\n\nwas void for vagueness and thus unconstitutional. Id. at 1210-11, 1213-16, 1218-\n\n23.\n\n After the Supreme Court issued its decision in Dimaya, this Court vacated\n\nthe opinion in Ovalles I and granted rehearing en banc. Ovalles v. United States,\n\n889 F.3d 1259 (11th Cir. 2018). On rehearing en banc, this Court expressly\n\nconsidered the effect, if any, of Johnson and Dimaya on § 924(c)(3)(B)’s residual\n\nclause which, like § 16(b), defines a crime of violence as “an offense that is a\n\nfelony” and that “by its nature, involves a substantial risk that physical force\n\nagainst the person or property of another may be used in the course of committing\n\nthe offense.” Ovalles II, 905 F.3d at 1233-34, 1236-40; 18 U.S.C. § 924(c)(3)(B).\n\n In Ovalles II, the en banc Court determined that § 924(c)(3)(B)’s residual\n\nclause can plausibly be interpreted to incorporate either a categorical or a conduct-\n\nbased approach. See Ovalles II, 905 F.3d at 1251. The en banc Court explained\n\nthat, for the reasons outlined in Johnson and Dimaya, application of the categorical\n\napproach would render § 924(c)(3)(B)’s residual clause unconstitutionally vague.\n\nId. at 1233, 1239-40. By contrast, the en banc Court explained, if § 924(c)(3)(B)’s\n\nresidual clause is interpreted to incorporate the conduct-based approach, it is not\n\nunconstitutionally vague. Id. at 1233-34, 1240. As such, the en banc Court\n\ndetermined that the canon of constitutional doubt required us to adopt the statute-\n\nsaving conduct-based interpretation. See id. at 1240, 1251-52. Given that the\n\n\n 9\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 10 of 13\n\n\nconduct-based approach applied to § 924(c)(3)(B)’s residual clause, the en banc\n\nCourt held that the residual clause was not unconstitutionally vague in light of\n\nJohnson and Dimaya. Id. at 1252.\n\n Relying on Ovalles II, this Court has since held that a federal prisoner’s\n\nproposed vagueness challenge to § 924(c)(3)(B)’s residual clause under Johnson\n\nand Dimaya could not satisfy the statutory requirements of § 2255(h). In re\n\nGarrett, 908 F.3d 686, 687-89 (11th Cir. 2018). The Garrett Court explained that,\n\ngiven Ovalles II’s holding that § 924(c)(3)(B) is not unconstitutionally vague,\n\n“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or\n\nold, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that\n\ncan support a vagueness-based challenge to the residual clause of section 924(c).”\n\nId. at 689. This Court added that, even though Garrett was sentenced prior to\n\nOvalles II, during a time when this Court interpreted § 924(c) to require a\n\ncategorical approach, construing his claim to challenge the use of the categorical\n\napproach would “make no difference” because the substitution of one statutory\n\ninterpretation for another did not amount to a new rule of constitutional law. Id.\n\n III. DISCUSSION\n\n As a preliminary matter, we note that when this Court authorizes a federal\n\nprisoner to file a successive § 2255 motion in the district court, that authorization is\n\na threshold determination and narrowly circumscribed. The successive motion\n\n\n 10\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 11 of 13\n\n\ndoes not stand in the place of a first § 2255 motion, allowing the movant to raise\n\nany claim that would have been cognizable in an original § 2255 proceeding.\n\nRather, the claims raised in the successive § 2255 motion must still meet the\n\nrequirements of § 2255(h). See Randolph v. United States, 904 F.3d 962, 964\n\n(11th Cir. 2018). That is, “[o]nce we have authorized a movant to file a second or\n\nsuccessive § 2255 motion, the district court has jurisdiction to determine for itself\n\nif the motion relies on ‘a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court, that was previously unavailable.’” Id.\n\n(quoting 28 U.S.C. § 2255(h)(2)). “If the motion meets those requirements, the\n\ndistrict court has jurisdiction to decide whether any relief is due under the motion;\n\nif the motion does not meet the § 2255(h) requirements, the court lacks jurisdiction\n\nto decide whether the motion has any merit.” Id.\n\n Furthermore, in making the § 2255(h) determination, the district court owes\n\nno deference to our order authorizing the movant to file a successive § 2255\n\nmotion. Id. at 965. Our threshold determination that the movant made a prima\n\nfacie showing that he satisfied § 2255(h)’s criteria does not conclusively resolve\n\nthe issue. In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016); see also Jordan v.\n\nSec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). Instead, “[w]hen\n\nwe issue an order authorizing a habeas petitioner to file a second or successive\n\n§ 2255 motion, the district court is to decide the § 2255(h) issues fresh, or in the\n\n\n 11\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 12 of 13\n\n\nlegal vernacular, de novo.” Randolph, 904 F.3d at 965 (quotation marks omitted).\n\nOur “first hard look” at whether the § 2255(h) requirements have been met then\n\ncomes, if at all, on appeal from the district court’s decision. Moore, 830 F.3d at\n\n1271 (quoting Jordan, 485 F.3d at 1358).\n\n Here, the district court denied Solomon’s authorized successive § 2255\n\nmotion because it concluded, based on our then-applicable precedent in Ovalles I,\n\nthat Johnson’s vagueness holding did not apply to or invalidate § 924(c)(3)(B)’s\n\nresidual clause. The district court framed this as a determination on the merits of\n\nSolomon’s successive § 2255 motion. In essence, however, in concluding that\n\nJohnson did not apply to § 924(c)(3)(B), the district court effectively determined\n\nthat Solomon’s successive § 2255 motion failed to satisfy § 2255(h)’s requirements\n\nbecause, in light of Ovalles I, Johnson did not supply a new rule of constitutional\n\nlaw that could support Solomon’s challenge to his § 924(c) conviction and\n\nsentence in Count 2. See Garrett, 908 F.3d at 689. Though Ovalles I has since\n\nbeen vacated, the district court’s conclusion remains correct in light of our en banc\n\ndecision in Ovalles II. As this Court explained in Garrett, given Ovalles II’s\n\nholding that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague, a\n\nJohnson- or Dimaya-based vagueness challenge to § 924(c)’s residual clause\n\ncannot satisfy § 2255(h)(2)’s “new rule of constitutional law” requirement. Id.\n\nLikewise, any challenge Solomon might raise to the district court’s use of the\n\n\n 12\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 13 of 13\n\n\ncategorical approach and its application of § 924(c)(3)(B)’s residual clause in his\n\ncase would not satisfy § 2255(h) either, as such a claim would be statutory in\n\nnature. See id. Ovalles II and Garrett foreclose even the most generous reading of\n\nSolomon’s challenges, both constitutional and statutory, to his § 924(c) conviction\n\nin Count 2. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018)\n\n(“[L]aw established in published three-judge orders issued pursuant to 28 U.S.C.\n\n§ 2244(b) in the context of applications for leave to file second or successive\n\n§ 2255 motions is binding precedent on all subsequent panels of this Court,\n\nincluding those reviewing direct appeals and collateral attacks . . . .”).\n\n IV. CONCLUSION\n\n For the foregoing reasons, the district court did not err in denying Solomon’s\n\nauthorized successive § 2255 motion, and we affirm.\n\n AFFIRMED.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356922/", "author_raw": "PER CURIAM"}]}	PRYOR	GRANT	HULL	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4579669/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14830\n Non-Argument Calendar\n ________________________\n\n D.C. Docket Nos. 0:16-cv-61410-DMM,\n 0:08-cr-60090-DMM-1\n\n\nCURTIS SOLOMON,\n\n Petitioner-Appellant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (January 8, 2019)\n\nBefore WILLIAM PRYOR, GRANT and HULL, Circuit Judges.\n\nPER CURIAM:\n\n Curtis Solomon appeals following the district court’s denial of his\n\nauthorized successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 2 of 13\n\n\nsentence. Back in 2017, the district court granted Solomon a certificate of\n\nappealability (“COA”) on the issue of whether the Supreme Court’s decision in\n\nJohnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), applies to 18 U.S.C.\n\n§ 924(c)(3)(B). Subsequently, the Supreme Court decided Sessions v. Dimaya,\n\n584 U.S. __, 138 S. Ct. 1204 (2018), and we held this appeal pending our en banc\n\ndecision in Ovalles v. United States (“Ovalles II”), 905 F.3d 1231 (11th Cir. 2018)\n\n(en banc). After review, we affirm.\n\n I. PROCEDURAL HISTORY\n\nA. Convictions, Direct Appeal, and First § 2255 Motion\n\n In 2008, a federal grand jury charged Solomon with: (1) one count of\n\nconspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)\n\n(Count 1); (2) one count of conspiracy to use and carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy\n\ncharged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 2);\n\n(3) 17 substantive counts of Hobbs Act robbery, in violation of 18 U.S.C.\n\n§§ 1951(a) and 2 (Counts 3, 5, 7, 9 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33,\n\nand 35); and (4) 17 substantive counts of carrying a firearm during and in relation\n\nto a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 4, 6, 8,\n\n10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36). Each of the substantive\n\n§ 924(c) counts was predicated on the preceding substantive Hobbs Act robbery\n\n\n 2\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 3 of 13\n\n\ncount. For example, Count 3 charged Solomon with the December 11, 2007\n\nrobbery of a Papa John’s Pizza employee, and Count 4 correspondingly charged\n\nhim with carrying a firearm during and in relation to that robbery. All in all, the\n\nindictment charged that from December 2007 through late March 2008, Solomon\n\nused a firearm to rob a variety of restaurants, including several pizza places and\n\nChinese food restaurants and multiple Subway locations.\n\n Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day\n\ntrial, the jury found Solomon guilty on all but two of the charged counts, Counts 23\n\nand 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit\n\nHobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy;\n\n(3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c)\n\ncounts.\n\n At Solomon’s sentencing in 2009, the district court imposed a total sentence\n\nof 4,641 months’ imprisonment. This sentence consisted of: (1) 57 months each as\n\nto Counts 1 (Hobbs Act conspiracy), 2 (§ 924(c) conspiracy), and 3, 5, 7, 9, 11, 13,\n\n15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be\n\nserved concurrently with each other; (2) a consecutive sentence of 84 months as to\n\nCount 4 (first substantive § 924(c) conviction); and (3) 300 months each as to\n\nCounts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional\n\n\n 3\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 4 of 13\n\n\n§ 924(c) convictions), to be served consecutive to each other and to all of the other\n\ncounts.\n\n Solomon appealed, raising several conviction issues and challenging the\n\nimposition of consecutive sentences on his substantive § 924(c) convictions. See\n\nUnited States v. Lewis, 433 F. App’x 844, 845-46 (11th Cir. 2011) (unpublished).\n\nIn 2011, this Court affirmed Solomon’s convictions and sentences. Id. at 847. In\n\n2012, Solomon filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or\n\ncorrect his sentence, raising two claims of ineffective assistance of trial counsel. In\n\n2013, the district court denied Solomon’s original § 2255 motion and denied him a\n\nCOA. In 2014, this Court also denied Solomon a COA.\n\nB. June 2016 Successive § 2255 Motion\n\n On June 10, 2016, Solomon filed an application for leave to file a successive\n\n§ 2255 motion with this Court. In relevant part, Solomon’s June 2016 application\n\nsought to challenge his § 924(c) convictions and sentences in light of the Supreme\n\nCourt’s decision in Johnson, which invalidated the residual clause of the Armed\n\nCareer Criminal Act (“ACCA”) as unconstitutionally vague.\n\n On July 8, 2016, this Court denied in part and granted in part Solomon’s\n\napplication. This Court denied Solomon’s application as to his substantive\n\n§ 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34,\n\nand 36. Each of those convictions corresponded to a companion substantive Hobbs\n\n\n 4\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 5 of 13\n\n\nAct robbery conviction. Following our precedent in In re Saint Fleur, 824 F.3d\n\n1337 (11th Cir. 2016), this Court held that substantive Hobbs Act robbery is a\n\ncrime of violence under § 924(c)(3)(A)’s elements clause. 1\n\n This Court, however, granted Solomon’s application as to his § 924(c)\n\nconspiracy conviction in Count 2 because that conviction corresponded to his\n\nHobbs Act conspiracy conviction in Count 1. This Court explained that “an\n\napplicant has made a prima facie case, for purposes of second or successive\n\nreview, when seeking to challenge a conviction for conspiracy to commit Hobbs\n\nAct robbery based on an argument that such a conviction meets only the residual\n\nclause of § 924(c).” (citing In re Pinder, 824 F.3d 977 (11th Cir. 2016).\n\nAccordingly, as a threshold determination, this Court granted in part Solomon’s\n\napplication to file a successive § 2255 motion, but only with respect to his\n\nchallenge to his § 924(c) conspiracy-related conviction in Count 2.\n\n\n\n\n 1\n Subsequent to Saint Fleur, five other circuits have held that Hobbs Act robbery qualifies\nas a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Barrett, 903\nF.3d 166, 174 (2d Cir. 2018), pet. for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States\nv. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 2018 WL 5017618 (Nov.\n13, 2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch,\n850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017); United States v. Rivera,\n847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S. Ct 2228 (2017). This Court also held again\nin a direct appeal case that Hobbs Act robbery qualifies as a crime of violence under\n§ 924(c)(3)(A). United States v. St. Hubert, 909 F.3d 335, 345-51 (11th Cir. 2018).\n 5\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 6 of 13\n\n\nC. District Court Proceedings on Successive § 2255 Motion\n\n Following this Court’s order, Solomon’s case was returned to the district\n\ncourt for adjudication of his authorized successive § 2255 motion. Solomon was\n\nrepresented by counsel in the district court. In July 2017, a magistrate judge issued\n\na report and recommendation (“R&R”) recommending that Solomon’s successive\n\n§ 2255 motion be denied. As to the merits of Solomon’s claim, the magistrate\n\njudge determined, based on our then-recent decision in Ovalles v. United States\n\n(“Ovalles I”), 861 F.3d 1257 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d\n\n1231 (11th Cir. 2018), that Johnson’s vagueness holding did not apply to or\n\ninvalidate § 924(c)(3)(B)’s residual clause. The magistrate judge noted that\n\nSolomon did not dispute that his Hobbs Act conspiracy conviction satisfied\n\n§ 924(c)(3)(B)’s residual clause, but rather argued only that the residual clause was\n\nunconstitutional. Because that argument lacked merit in light of Ovalles I, the\n\nmagistrate judge concluded that Solomon’s successive § 2255 motion should be\n\ndenied.2\n\n Solomon objected to the R&R. Solomon argued that the district court\n\nshould not rely on Ovalles I because (1) this Court had withheld the mandate in\n\n\n\n 2\n In the interest of completeness, the magistrate judge went on to address whether, if\nJohnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A)’s elements clause.\nThe magistrate judge determined that it would not. The district court, however, did not adopt\nthat portion of the magistrate judge’s R&R, as it was unnecessary to the resolution of Solomon’s\nsuccessive § 2255 motion.\n 6\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 7 of 13\n\n\nthat case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya\n\nwas then pending in the Supreme Court and might impact the reasoning applied in\n\nOvalles I to distinguish § 924(c) from the ACCA. Solomon also contended that,\n\neven if Ovalles I correctly held that § 924(c)(3)(B)’s residual clause was\n\nconstitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs\n\nAct conspiracy did not qualify as a crime of violence under § 924(c)(3)(B)’s\n\nresidual clause. Specifically, Solomon argued that any risk of injury that may\n\noccur in the context of a Hobbs Act conspiracy “arises from the object of the\n\nconspiracy, which is a separate and distinct offense that is temporally removed\n\nfrom the scope-of-the-risk analysis under § 924(c)(3)(B).” In other words,\n\nSolomon contended that the Hobbs Act conspiracy itself does not require proof of\n\nany overt act and thus a conspiracy poses no risk of injury.\n\n The government responded that Ovalles I was binding precedent regardless\n\nof whether the mandate had issued and should be applied in Solomon’s case. The\n\ngovernment further asserted that Solomon’s alternative argument—that Hobbs Act\n\nconspiracy did not qualify under the residual clause—was not cognizable in the\n\ncontext of a successive § 2255 motion. The government explained that this\n\nCourt’s grant of leave for Solomon to file a successive § 2255 motion was limited\n\nto his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson\n\nand did not encompass other challenges to the validity of that conviction.\n\n\n 7\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 8 of 13\n\n\n Over Solomon’s objections, the district court adopted the R&R’s\n\nrecommendation that Solomon’s motion be denied “because Johnson does not\n\napply to § 924(c)(3)(B).” However, the district court granted Solomon a COA “as\n\nto whether Johnson applies to § 924(c)(3)(B).” Solomon now appeals.\n\n II. LEGAL BACKGROUND\n\n The legal landscape in this case has developed since the district court ruled\n\non Solomon’s authorized successive § 2255 motion. We therefore detail those\n\nlegal developments below before turning to the merits of Solomon’s case.\n\n Following the Supreme Court’s decision in Johnson and this Court’s\n\ndecision in Ovalles I, the Supreme Court decided Sessions v. Dimaya. In Dimaya,\n\nthe Supreme Court addressed whether Johnson’s vagueness holding as to the\n\nACCA’s residual clause applied to and invalidated the residual clause in 18 U.S.C.\n\n§ 16(b)’s crime of violence definition. 584 U.S. at __, 138 S. Ct. at 1210-12.\n\nSection 16(b) defined a crime of violence as “any other offense that is a felony and\n\nthat, by its nature, involves a substantial risk that physical force against the person\n\nor property of another may be used in the course of committing the offense.” 18\n\nU.S.C. § 16(b). Strictly applying the ordinary case or categorical approach, the\n\nSupreme Court in Dimaya held that § 16(b)’s residual clause, as incorporated into\n\nthe Immigration and Nationality Act, like the ACCA’s residual clause in Johnson,\n\n\n\n\n 8\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 9 of 13\n\n\nwas void for vagueness and thus unconstitutional. Id. at 1210-11, 1213-16, 1218-\n\n23.\n\n After the Supreme Court issued its decision in Dimaya, this Court vacated\n\nthe opinion in Ovalles I and granted rehearing en banc. Ovalles v. United States,\n\n889 F.3d 1259 (11th Cir. 2018). On rehearing en banc, this Court expressly\n\nconsidered the effect, if any, of Johnson and Dimaya on § 924(c)(3)(B)’s residual\n\nclause which, like § 16(b), defines a crime of violence as “an offense that is a\n\nfelony” and that “by its nature, involves a substantial risk that physical force\n\nagainst the person or property of another may be used in the course of committing\n\nthe offense.” Ovalles II, 905 F.3d at 1233-34, 1236-40; 18 U.S.C. § 924(c)(3)(B).\n\n In Ovalles II, the en banc Court determined that § 924(c)(3)(B)’s residual\n\nclause can plausibly be interpreted to incorporate either a categorical or a conduct-\n\nbased approach. See Ovalles II, 905 F.3d at 1251. The en banc Court explained\n\nthat, for the reasons outlined in Johnson and Dimaya, application of the categorical\n\napproach would render § 924(c)(3)(B)’s residual clause unconstitutionally vague.\n\nId. at 1233, 1239-40. By contrast, the en banc Court explained, if § 924(c)(3)(B)’s\n\nresidual clause is interpreted to incorporate the conduct-based approach, it is not\n\nunconstitutionally vague. Id. at 1233-34, 1240. As such, the en banc Court\n\ndetermined that the canon of constitutional doubt required us to adopt the statute-\n\nsaving conduct-based interpretation. See id. at 1240, 1251-52. Given that the\n\n\n 9\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 10 of 13\n\n\nconduct-based approach applied to § 924(c)(3)(B)’s residual clause, the en banc\n\nCourt held that the residual clause was not unconstitutionally vague in light of\n\nJohnson and Dimaya. Id. at 1252.\n\n Relying on Ovalles II, this Court has since held that a federal prisoner’s\n\nproposed vagueness challenge to § 924(c)(3)(B)’s residual clause under Johnson\n\nand Dimaya could not satisfy the statutory requirements of § 2255(h). In re\n\nGarrett, 908 F.3d 686, 687-89 (11th Cir. 2018). The Garrett Court explained that,\n\ngiven Ovalles II’s holding that § 924(c)(3)(B) is not unconstitutionally vague,\n\n“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or\n\nold, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that\n\ncan support a vagueness-based challenge to the residual clause of section 924(c).”\n\nId. at 689. This Court added that, even though Garrett was sentenced prior to\n\nOvalles II, during a time when this Court interpreted § 924(c) to require a\n\ncategorical approach, construing his claim to challenge the use of the categorical\n\napproach would “make no difference” because the substitution of one statutory\n\ninterpretation for another did not amount to a new rule of constitutional law. Id.\n\n III. DISCUSSION\n\n As a preliminary matter, we note that when this Court authorizes a federal\n\nprisoner to file a successive § 2255 motion in the district court, that authorization is\n\na threshold determination and narrowly circumscribed. The successive motion\n\n\n 10\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 11 of 13\n\n\ndoes not stand in the place of a first § 2255 motion, allowing the movant to raise\n\nany claim that would have been cognizable in an original § 2255 proceeding.\n\nRather, the claims raised in the successive § 2255 motion must still meet the\n\nrequirements of § 2255(h). See Randolph v. United States, 904 F.3d 962, 964\n\n(11th Cir. 2018). That is, “[o]nce we have authorized a movant to file a second or\n\nsuccessive § 2255 motion, the district court has jurisdiction to determine for itself\n\nif the motion relies on ‘a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court, that was previously unavailable.’” Id.\n\n(quoting 28 U.S.C. § 2255(h)(2)). “If the motion meets those requirements, the\n\ndistrict court has jurisdiction to decide whether any relief is due under the motion;\n\nif the motion does not meet the § 2255(h) requirements, the court lacks jurisdiction\n\nto decide whether the motion has any merit.” Id.\n\n Furthermore, in making the § 2255(h) determination, the district court owes\n\nno deference to our order authorizing the movant to file a successive § 2255\n\nmotion. Id. at 965. Our threshold determination that the movant made a prima\n\nfacie showing that he satisfied § 2255(h)’s criteria does not conclusively resolve\n\nthe issue. In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016); see also Jordan v.\n\nSec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). Instead, “[w]hen\n\nwe issue an order authorizing a habeas petitioner to file a second or successive\n\n§ 2255 motion, the district court is to decide the § 2255(h) issues fresh, or in the\n\n\n 11\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 12 of 13\n\n\nlegal vernacular, de novo.” Randolph, 904 F.3d at 965 (quotation marks omitted).\n\nOur “first hard look” at whether the § 2255(h) requirements have been met then\n\ncomes, if at all, on appeal from the district court’s decision. Moore, 830 F.3d at\n\n1271 (quoting Jordan, 485 F.3d at 1358).\n\n Here, the district court denied Solomon’s authorized successive § 2255\n\nmotion because it concluded, based on our then-applicable precedent in Ovalles I,\n\nthat Johnson’s vagueness holding did not apply to or invalidate § 924(c)(3)(B)’s\n\nresidual clause. The district court framed this as a determination on the merits of\n\nSolomon’s successive § 2255 motion. In essence, however, in concluding that\n\nJohnson did not apply to § 924(c)(3)(B), the district court effectively determined\n\nthat Solomon’s successive § 2255 motion failed to satisfy § 2255(h)’s requirements\n\nbecause, in light of Ovalles I, Johnson did not supply a new rule of constitutional\n\nlaw that could support Solomon’s challenge to his § 924(c) conviction and\n\nsentence in Count 2. See Garrett, 908 F.3d at 689. Though Ovalles I has since\n\nbeen vacated, the district court’s conclusion remains correct in light of our en banc\n\ndecision in Ovalles II. As this Court explained in Garrett, given Ovalles II’s\n\nholding that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague, a\n\nJohnson- or Dimaya-based vagueness challenge to § 924(c)’s residual clause\n\ncannot satisfy § 2255(h)(2)’s “new rule of constitutional law” requirement. Id.\n\nLikewise, any challenge Solomon might raise to the district court’s use of the\n\n\n 12\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 13 of 13\n\n\ncategorical approach and its application of § 924(c)(3)(B)’s residual clause in his\n\ncase would not satisfy § 2255(h) either, as such a claim would be statutory in\n\nnature. See id. Ovalles II and Garrett foreclose even the most generous reading of\n\nSolomon’s challenges, both constitutional and statutory, to his § 924(c) conviction\n\nin Count 2. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018)\n\n(“[L]aw established in published three-judge orders issued pursuant to 28 U.S.C.\n\n§ 2244(b) in the context of applications for leave to file second or successive\n\n§ 2255 motions is binding precedent on all subsequent panels of this Court,\n\nincluding those reviewing direct appeals and collateral attacks . . . .”).\n\n IV. CONCLUSION\n\n For the foregoing reasons, the district court did not err in denying Solomon’s\n\nauthorized successive § 2255 motion, and we affirm.\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]", "role": "user" } ]
4,579,737	UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant.	United States v. Erickson Meko Campbell	2019-01-08	16-10128	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Tjoflat, Martin, Murphy", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887834/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887835/", "author_raw": ""}, {"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "Case: 16-10128 Date Filed: 01/08/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-10128\n ________________________\n\n D.C. Docket No. 3:14-cr-00046-CAR-CHW-1\n\n\nUNITED STATES OF AMERICA,\n\n\n Plaintiff-Appellee,\n\nversus\n\nERICKSON MEKO CAMPBELL,\n\n Defendant-Appellant.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n ________________________\n\n (January 8, 2019)\n\nBefore TJOFLAT and MARTIN, Circuit Judges, and MURPHY,∗ District Judge.\n\nTJOFLAT, Circuit Judge:\n\n\n\n ∗\n Honorable Stephen J. Murphy III, District Judge for the United States District Court for\nthe Eastern District of Michigan, sitting by designation.\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 2 of 32\n\n\n This appeal presents important questions about the proper confines of a\n\ntraffic stop. First, whether a highway patrolman had reasonable suspicion to stop a\n\nmotorist for a rapidly blinking turn signal. Second, if there was reasonable\n\nsuspicion, whether the seizure became unreasonable when the patrolman prolonged\n\nthe stop by questioning the motorist about matters unrelated to the stop’s mission.\n\nThe District Court concluded that the initial stop was valid and that the questioning\n\nabout unrelated matters did not transform the stop into an unreasonable seizure.\n\nThe District Court therefore denied the motorist’s motion to suppress inculpatory\n\nevidence discovered during a subsequent search.\n\n We agree that there was reasonable suspicion to stop the motorist. But we\n\nfind that under the Supreme Court’s recent decision in Rodriguez v. United States,\n\n135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because\n\nhis actions were permitted under binding case law at the time, however, the good\n\nfaith exception to the exclusionary rule applies. We thus affirm the denial of the\n\nmotion to suppress.\n\n I.\n\n A.\n\n At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert\n\nMcCannon was patrolling Interstate 20 in Georgia when he observed a Nissan\n\n\n\n\n 2\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 3 of 32\n\n\nMaxima cross the fog line. 1 McCannon activated the camera on the dashboard of\n\nhis patrol car, and after observing the Maxima cross the fog line a second time and\n\nnoticing that its left turn signal blinked at an unusually rapid pace, he pulled the car\n\nover. He approached the Maxima, introduced himself to the driver, Erickson\n\nCampbell, asked him for his driver’s license, and explained why he had pulled him\n\nover. After determining that the Maxima’s left turn signal was malfunctioning,\n\nMcCannon decided to issue Campbell a warning for failing to comply with two\n\nGeorgia traffic regulations: failure to maintain signal lights in good working\n\ncondition,2 and failure to stay within the driving lane.3 McCannon asked Campbell\n\n\n 1\n The “fog line” is the line on the side of the highway that separates the highway from the\nshoulder, marking the end of the highway’s outside lane.\n 2\n O.C.G.A. § 40–8–26 states, in pertinent part:\n (a) Any motor vehicle may be equipped . . . with the following signal lights or devices:\n\n ....\n\n (2) A light or lights or mechanical signal device capable of clearly indicating any\n intention to turn either to the right or to the left and which shall be visible from\n both the front and the rear.\n\n (b) Every . . . signal light or lights indicating intention to turn shall be visible and\n understandable during daytime and nighttime from a distance of 300 feet from both the\n front and the rear. . . . [S]uch light or lights shall at all times be maintained in good\n working condition.\n 3\n O.C.G.A. § 40–6–48 states, in pertinent part:\n Whenever any roadway has been divided into two or more clearly marked lanes for\n traffic, the following rules, in addition to all others consistent with this Code section,\n shall apply:\n\n (1) A vehicle shall be driven as nearly as practicable entirely within a single lane\n and shall not be moved from such lane until the driver has first ascertained that\n such movement can be made with safety.\n\n 3\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 4 of 32\n\n\nto step out of his car and accompany him to the patrol car while he wrote the\n\nwarning ticket.\n\n While writing the ticket, McCannon asked the dispatcher to run a check on\n\nCampbell’s license and engaged Campbell in conversation. He learned that\n\nCampbell was en route to Augusta to see his family, where Campbell worked, that\n\nCampbell had been arrested sixteen years ago for a DUI, and that Campbell was\n\nnot traveling with a firearm. Then he asked Campbell if he had any counterfeit\n\nCDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,\n\necstasy, or dead bodies in his car. Campbell answered that he did not. At that\n\ntime, McCannon asked Campbell if he could search his car for any of those items,\n\nand Campbell consented.\n\n While McCannon continued writing the warning ticket, Deputy Patrick\n\nPaquette, who had arrived on the scene a few minutes earlier, began searching the\n\ncar. McCannon finished the warning ticket and had Campbell sign it. After giving\n\nCampbell the ticket and returning his license, McCannon joined Paquette in the\n\nsearch. They found a 9mm semi-automatic pistol, 9mm ammunition, a black\n\nstocking cap, and a camouflage face mask in a bag hidden under the carpet in the\n\nMaxima’s trunk. Confronted, Campbell admitted that he lied about not traveling\n\nwith a firearm because he was a convicted felon and had done time.\n\n B.\n\n 4\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 5 of 32\n\n\n Campbell was indicted for possessing a firearm as a convicted felon, in\n\nviolation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the\n\nevidence found in the search of his car was obtained in violation of the Fourth\n\nAmendment’s prohibition against unreasonable searches and seizures, and moved\n\nthe District Court to suppress it. 4 He presented two arguments in support of his\n\nmotion. First, the seizure was unreasonable because Deputy McCannon lacked\n\nreasonable suspicion to believe that a traffic violation had occurred. Second, even\n\nif there was reasonable suspicion, his seizure became unreasonable when\n\nMcCannon prolonged the stop by asking Campbell questions unrelated to the\n\npurpose of the stop. In turn, the unreasonable seizure tainted any consent he had\n\ngiven the officers to search his car, requiring that the evidence uncovered during\n\nthe search be suppressed. 5\n\n Campbell’s first argument was that his rapidly blinking turn signal did not\n\nsupply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26\n\nrequires is that the turn signal “indicate a driver’s intention to change lanes,” and\n\nthe Maxima’s left turn signal was able to do that. That the signal was not blinking\n\n\n\n 4\n The Fourth Amendment states, in pertinent part, that “The right of the people to be\nsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures,\nshall not be violated.” The Fourth Amendment is applicable to the states through the Due\nProcess Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,\n1692 (1961).\n 5\n Campbell also argued that the search was tainted because it exceeded the scope of any\nconsent he had given, but this issue is not before us on appeal.\n 5\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 6 of 32\n\n\nas designed was irrelevant, Campbell said, because the statute did not require that a\n\nturn signal “(1) blink in unison with the other turn signal, (2) blink at a certain\n\npace, or even, (3) blink as intended by the vehicle manufacturer.” 6\n\n Campbell’s second argument was that McCannon unlawfully prolonged the\n\nstop by asking questions unrelated to the purpose of the stop. Specifically, he\n\nchallenged questions on the following topics:\n\n McCannon asked: (1) where he was going, (2) who he was going to\n see, (3) where he worked, (4) if he had time off work, (5) when his\n last traffic ticket was, (6) if he had ever been arrested, (7) how old his\n car was, (8) how good of a deal he got on his car, (9) whether he had\n any counterfeit merchandise in the car, and, (10) if he had a dead body\n in the car.\n\nRelying on the Supreme Court’s decision in Rodriguez, Campbell maintained that\n\nif McCannon prolonged the stop at all through these inquiries, the stop became\n\nunlawful.\n\n The District Court held an evidentiary hearing on Campbell’s motion to\n\nsuppress. Deputy McCannon, whom the Government called to the stand at the\n\noutset of the hearing, was the sole witness. Aside from his testimony, the Court\n\nhad the benefit of the video created by the dashboard camera. The video portrays\n\nwhat transpired between McCannon’s activation of the camera and Campbell’s\n\narrest, including the questioning Campbell complains of as unrelated to the\n\n\n 6\n Campbell also denied that reasonable suspicion existed for allegedly crossing the fog\nline. The District Court did not reach this argument and neither do we.\n 6\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 7 of 32\n\n\npurpose of the stop. The video’s timestamps indicate precisely when this\n\nquestioning took place. The following bullet points, headed by the timestamps,\n\ndemonstrate this.\n\n • 0:00: McCannon activates the camera.\n • 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the\n car’s license plate number. The dispatcher runs the number and informs\n him that it belongs to Erickson Campbell, an “active felon.”\n • 2:31: McCannon activates his patrol car’s flashing lights.\n • 2:36–58: Campbell pulls over.\n • 3:25–32: McCannon approaches the car from the passenger side and\n requests Campbell’s driver’s license.\n • 3:34–4:42: McCannon explains to Campbell that he stopped him for\n “weaving in his lane” and because his left turn signal was blinking\n rapidly. McCannon says the rapid blinking means “you’ve got a bulb\n out somewhere.” He then checks the lights in the front and back of the\n car, none of which are out. McCannon says it must be that the turn\n signal is “about to go bad,” but that he won’t write a ticket for that—\n just a warning.\n • 4:43–5:09: McCannon asks Campbell where he is going. Campbell\n says he is traveling to Augusta, Georgia. McCannon asks why he is\n going there, and Campbell responds that he is going to see his family.\n • 5:10–13: McCannon asks Campbell to step out of the car and walk with\n him to the patrol car where he will write the warning.\n • 5:48: McCannon begins writing the warning ticket.\n • 6:13–29: McCannon asks Campbell about his family in Augusta,\n adding that he knows a little about Augusta. Campbell says he does not\n know much about Augusta; he just has family there. McCannon\n continues writing the ticket.\n • 6:30–57: McCannon asks Campbell what type of work he does.\n Campbell says that he works for American Woodlawn, building for\n Home Depot and Lowes.\n • 7:07–27: McCannon asks Campbell where his family lives in Augusta.\n Campbell responds that his family lives off of Watson Road.\n McCannon indicates he knows approximately where that is, and\n continues writing the ticket.\n\n\n 7\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 8 of 32\n\n\n • 7:48–8:30: McCannon stops writing to retrieve his jacket from the\n patrol car.\n • 8:32–38: McCannon asks Campbell if he is traveling with a firearm.\n Campbell shakes his head no.\n • 9:07: McCannon acknowledges Sergeant Paquette, who has just\n arrived off camera. 7\n • 9:12–18: McCannon asks Paquette to “come here and let me ask you\n about this location.” McCannon tells Campbell that Paquette is from\n Augusta.\n • 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s\n driver’s license.\n • 9:40–54: McCannon asks Campbell if he had been arrested before.\n Campbell responds yes, about sixteen years ago, for a DUI.\n • 10:00–56: McCannon and Paquette ask Campbell about his destination\n and where his family lives in Augusta, while McCannon continues to\n intermittently write the ticket.\n • 11:16–19: McCannon: “I know I asked you if you have any firearms\n tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”\n • 11:20–45: McCannon: “Any counterfeit merchandise that you’re\n taking to your relatives in Augusta? And what I mean by that is—any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?\n Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?” Campbell shakes his head or\n otherwise responds in the negative to each question.\n • 11:47–55: McCannon: “I know you said you didn’t have that, and I’m\n not accusing you of anything—can I search it? Can I search your car\n for any of those items I asked you about?” Campbell responds in the\n affirmative, nodding and gesturing toward the car.\n • 12:02–13:05: Paquette pats down Campbell after McCannon indicates\n that he had not yet done so. McCannon continues writing the ticket.\n • 13:06: Paquette begins searching the car.\n • 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does\n so and returns it to McCannon.\n • 14:00: McCannon hands the ticket to Campbell.\n • 16:18–19:58: McCannon and Paquette search the car.\n\n 7\n Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling\nthe highway, and had pulled over to assist.\n 8\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 9 of 32\n\n\n • 19:58–20:08: Paquette informs McCannon that he has discovered a gun\n and a ski mask.\n • 20:30–21:02: The officers finish searching the car and place Campbell\n in handcuffs.\n • 21:25–40: McCannon informs Campbell of his Miranda rights.\n • 24:12–48: McCannon tells Campbell he is under arrest for felon in\n possession of a firearm. McCannon places Campbell in the rear of his\n patrol car to be taken to the Greene County jail.\n\n From the time McCannon began writing the warning ticket to Campbell’s\n\nconsent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell\n\nconsented 8 minutes and 57 seconds after McCannon made the stop.\n\n C.\n\n At the conclusion of the evidentiary hearing, the District Court asked the\n\nparties for supplemental briefing to address the possible application of the\n\nRodriguez decision. The District Court also requested supplemental briefing on\n\nthe applicability of Davis v. United States, in which the Supreme Court held that\n\nthe Fourth Amendment’s exclusionary rule should not apply when the police act in\n\ngood-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.\n\n2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.\n\n The District Court determined that the rapidly blinking turn signal provided\n\nreasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in\n\ngood working condition. The Court reasoned that McCannon had reasonable\n\nsuspicion to believe that the rapidly blinking turn signal violated this requirement.\n\nThe Court further concluded that McCannon had “reasonable suspicion to initiate\n 9\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 10 of 32\n\n\nthe stop to determine whether the front signal lights were functioning properly.”\n\nThe Court based this conclusion on McCannon’s testimony that in his experience a\n\nrapidly blinking turn signal indicates either a bulb is out or is about to go out.\n\nGiven this finding, there was no need to address the failure-to-maintain-lane\n\nviolation.\n\n After finding reasonable suspicion, the District Court moved to the\n\nprolongation issue. The Court found that precedent entitled McCannon to ask\n\nCampbell about his destination and the purpose of his trip; the year his car was\n\nmade; the last traffic citation he received; his criminal history8; and whether he was\n\ntraveling with a firearm. As the Court put it, “[t]hese questions either addressed the\n\ntraffic violation or were related to legitimate safety concerns.”\n\n But the questions about contraband, the Court said, were not related to the\n\npurpose of the stop. These questions—about counterfeit merchandise, drugs, and\n\ndead bodies—and Campbell’s negative responses, consumed all of 25 seconds.\n\nImmediately thereafter, Campbell consented to the search of his automobile.\n\n Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th\n\nCir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated\n\nquestions ‘did not transform the stop into an unconstitutionally prolonged\n\n\n 8\n Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held\nthat McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch\nto run [Defendant’s] license information.”\n 10\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 11 of 32\n\n\nseizure.’” The Court concluded that the overall length of the stop was reasonable\n\nand that McCannon conducted the stop expeditiously. Because the seizure was\n\nreasonable, there was no reason for the Court to decide whether the consent was\n\ntainted or the good faith exception to the exclusionary rule applied.\n\n Following the Court’s ruling, Campbell entered a conditional guilty plea,\n\npreserving the right to appeal the denial of his motion to suppress. See Fed. R.\n\nCrim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month\n\nsentence.\n\n II.\n\n “A denial of a motion to suppress involves mixed questions of fact and law.”\n\nUnited States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).\n\nWe review the District Court’s findings of fact for clear error, considering all the\n\nevidence in the light most favorable to the prevailing party—in this case, the\n\nGovernment. Id. But we review de novo the District Court’s application of the\n\nlaw to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.\n\n2010). Our review is not moored to the evidence presented at the suppression\n\nhearing; we are free to look at the whole record. United States v. Newsome, 475\n\nF.3d 1221, 1224 (11th Cir. 2007).\n\n A.\n\n\n\n\n 11\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 12 of 32\n\n\n A traffic stop is a seizure within the meaning of the Fourth Amendment.\n\nWhren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To\n\ncomply with the Fourth Amendment, the officer must have reasonable suspicion.\n\nHeien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to\n\njustify [a traffic stop], officers need only reasonable suspicion[.]” (quotation\n\nomitted)). 9 That is, the officer must have “a particularized and objective basis for\n\nsuspecting the person stopped of criminal activity.” Navarette v. California, 572\n\nU.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even\n\nminor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277\n\n(11th Cir. 2003). The question here is whether a rapidly blinking turn signal\n\ncreates reasonable suspicion that a traffic violation has occurred.\n\n Georgia law requires that a vehicle be equipped with right and left turn\n\nsignal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an\n\nintention to turn right or left and be visible from the front and rear from a distance\n\nof 300 feet. In addition, such lights “shall at all times be maintained in good\n\n\n 9\n The parties and the District Court mention needing reasonable suspicion or probable\ncause. This framing is understandable given the Supreme Court’s declaration in Whren that “the\ndecision to stop an automobile is reasonable where the police have probable cause to believe that\na traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also\nechoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)\n(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to\nbelieve that a traffic violation has occurred.”). But the Supreme Court has since made it plain\nthat reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable\ncause is sufficient, only reasonable suspicion is necessary.\n\n\n 12\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 13 of 32\n\n\nworking condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the\n\ngood working condition requirement is separate. If all the statute demanded is that\n\nthe turn signal be visible from 300 feet and clearly indicate an intention to change\n\nlanes, the good working condition language would be superfluous. It must mean\n\nmore.\n\n Typically, when a turn signal blinks rapidly, it does so to notify the driver\n\nthat a bulb is out or is about to go out. It can also mean that there is a problem\n\nwith the wiring. Campbell maintains that a rapidly blinking turn signal works as\n\nintended—to notify the driver of a potential problem—and equipment that works\n\naccording to design must be in good working condition. But the rapid blinking is\n\nan alert that something, be it an expired bulb or faulty wiring, might not be in good\n\nworking condition. Thus, the rapidly blinking turn signal provided McCannon\n\nwith reasonable suspicion to believe that Campbell’s car was in violation of the\n\ntraffic code. On that basis, 10 we affirm the District Court’s holding that\n\nMcCannon’s initiation of the stop was lawful and proceed to the issue of whether\n\nhis unrelated inquiries turned Campbell’s seizure into a Fourth Amendment\n\nviolation.\n\n\n\n\n 10\n The District Court also noted that even if McCannon was mistaken that the rapidly\nblinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,\nhis mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion\nnecessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.\n 13\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 14 of 32\n\n\n B.\n\n Even if the police have reasonable suspicion to make a traffic stop, they do\n\nnot have unfettered authority to detain a person indefinitely. The detention is\n\n“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.\n\n1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation\n\ndiligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges\n\nthat an officer always has to be reasonably diligent.” (quotation omitted)); see also\n\nUnited States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n\n\nassessing the effect of the length of the detention, we take into account whether the\n\npolice diligently pursue their investigation.”). And officers cannot unlawfully\n\nprolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.\n\n The Supreme Court expanded on unlawfully prolonged traffic stops in\n\nRodriguez. In that case, police pulled over a vehicle for swerving onto the\n\nshoulder. Id. at 1612. After writing a warning ticket and returning the license,\n\nregistration, and proof of insurance to the driver, the officer made the driver and\n\npassenger wait for seven or eight minutes while he conducted a dog sniff. Id. at\n\n1613. The dog discovered contraband, and the driver sought to suppress the\n\nevidence. Id. On appeal, the Eighth Circuit determined that a seven or eight\n\nminute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme\n\nCourt rejected the de minimis standard. Id. at 1615–16.\n\n 14\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 15 of 32\n\n\n The Supreme Court explained that a traffic stop is analogous to a Terry stop.\n\nId. at 1614. As such, the scope of the stop “must be carefully tailored to its\n\nunderlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the\n\ncontext of a traffic stop, “the tolerable duration of police inquiries . . . is\n\ndetermined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation\n\nomitted). The mission of a traffic stop is “to address the traffic violation that\n\nwarranted the stop . . . and attend to related safety concerns[.]” Id. The stop may\n\n“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460\n\nU.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied\n\nto the traffic infraction are—or reasonably should have been—completed.” Id.\n\n The question becomes, which tasks are related to the stop’s purpose? The\n\nCourt identified a number of tasks it says are “ordinary inquiries incident to [the\n\ntraffic] stop.” Id. at 1615 (alteration in original). These inquiries include\n\n“checking the driver’s license, determining whether there are outstanding warrants\n\nagainst the driver, and inspecting the automobile’s registration and proof of\n\ninsurance.” Id. Inquiries such as these ensure “that vehicles on the road are\n\noperated safely and responsibly.” Id.\n\n The Court has also identified tasks that are not related to a stop’s purpose.\n\nIn Arizona v. Johnson, for example, the Court said asking about a passenger’s gang\n\naffiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).\n\n 15\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 16 of 32\n\n\nSimilarly, using a dog to search for contraband is not related. Rodriguez, 135 S.\n\nCt. at 1615. A dog sniff lacks “the same close connection to roadway safety as the\n\nordinary inquiries,” and cannot be “fairly characterized as part of the officer’s\n\ntraffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of\n\nordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).\n\n In short, related tasks are the “ordinary inquiries incident to a traffic stop”;\n\nunrelated tasks are “other measures aimed at detecting criminal activity more\n\ngenerally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)\n\n(interpreting Rodriguez).\n\n That said, unrelated inquiries are permitted so long as they do not add time\n\nto the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain\n\nunrelated checks during an otherwise lawful traffic stop. But . . . he may not do so\n\nin a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems\n\ncounterintuitive: how could an officer conduct unrelated inquiries without adding\n\nat least some time to the stop? Precedent provides the answer.\n\n In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.\n\n543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the\n\ntransmission and immediately headed for the scene with his narcotics-detection\n\ndog.” Id. The second officer conducted the dog sniff while the first officer “was\n\nin the process of writing a warning ticket[.]” Id. Thus, because there were\n\n 16\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 17 of 32\n\n\nmultiple officers, one of them was able to conduct an unrelated inquiry without\n\nadding time to the stop.\n\n Similarly, in Johnson, three officers pulled over a car with three passengers.\n\n555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries\n\ninto the driver’s license and registration, another officer questioned the passenger,\n\nJohnson. Id. at 327–28. This officer made unrelated inquiries into whether\n\nJohnson was affiliated with a gang, id. at 328, but because the first officer\n\nsimultaneously followed up on the purpose of the stop, it did not add any time.\n\n In this way, the Rodriguez Court suggested that its decision—commanding\n\nthat a stop “may last no longer than is necessary” to complete its purpose—was a\n\nsimple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in\n\nCaballes and Johnson heed these constraints. In both cases, we concluded that the\n\nFourth Amendment tolerated certain unrelated investigations that did not lengthen\n\nthe roadside detention.” (emphasis added)). But this Court, in conjunction with a\n\nnumber of our sister circuits, 11 had interpreted the precedent cases to establish a\n\ndifferent standard.\n\n\n 11\n Almost all of the circuits developed a rule looking to whether the length of the stop as a\nwhole was reasonable and finding that brief extensions did not transform the stop into an\nunreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United\nStates v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45\n(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United\nStates v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220\n(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th\nCir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.\n 17\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 18 of 32\n\n\n In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered\n\nthe appropriate standard to decide prolongation cases. As part of that\n\nconsideration, we looked to the Supreme Court’s ruling in Johnson,12 where the\n\nCourt condoned unrelated inquiries “so long as those inquiries do not measurably\n\nextend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555\n\nU.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we\n\ndetermined that the issue of whether unrelated questions “measurably extended or\n\nprolonged the duration of the stop so as to make it unreasonable under the Fourth\n\nAmendment” should be decided by an overall reasonableness standard. Id. at 1362\n\n(“To address this issue, we do not simply look at the interval of prolongation in\n\nisolation, but rather assess the length of the stop as a whole, including any\n\nextension of the encounter, by undertaking a fact-bound, context-dependent\n\n\n\nOlivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,\n1269 (10th Cir. 2007).\n 12\n We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125\nS. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person\nabout her immigration status while she was detained during the execution of a search warrant—\nby other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.\n(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the\ndetention, the Court held that the officers did not need independent reasonable suspicion to ask\nabout her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully\nconsistent with the idea that unrelated inquiries are permitted only if they do not add time to the\nstop. The unrelated questions did not prolong the stop because other officers executed the search\nwarrant.\n 13\n The standard from Johnson resembled the one from Caballes, where the Court said a\ntraffic stop “can become unlawful if it is prolonged beyond the time reasonably required to\ncomplete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.\n 18\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 19 of 32\n\n\nanalysis of all of the circumstances concerning the stop and the unrelated\n\nquestions.” (quotation omitted)).\n\n But the Supreme Court rejected the overall reasonableness standard in\n\nRodriguez. In that case, the Government argued that it is acceptable to\n\n“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is\n\ndiligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,\n\n135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).\n\nThe Court disagreed, noting that the Government’s position would effectively\n\ngrant officers “bonus time to pursue an unrelated criminal investigation” if they\n\ncomplete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.\n\nInstead, courts must look at what an officer actually does: if he “can complete\n\ntraffic-based inquiries expeditiously, then that is the amount of ‘time reasonably\n\nrequired to complete [the stop’s] mission.’” Id. (alteration in original) (quoting\n\nCaballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged\n\nbeyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can\n\nbe unlawfully prolonged even if done expeditiously.\n\n The Supreme Court also rejected the reasoning from Griffin. In Griffin, an\n\nofficer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.\n\nDuring the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why\n\ndo you have batteries?” Id. These questions were “unrelated to the attempted theft\n\n 19\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 20 of 32\n\n\nor the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,\n\nid. at 1362. We offered two reasons for finding that the stop was not unlawfully\n\nprolonged. Id. First, the officer “acted diligently.” Id. But as explained above,\n\ndiligence does not provide an officer with cover to slip in a few unrelated\n\nquestions. Second, the officer “had not yet completed his investigation.” Id. The\n\nRodriguez Court rebuffed this argument as well: the “critical question . . . is not\n\nwhether the [unrelated inquiry] occurs before or after the officer issues the\n\nticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds\n\ntime to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can\n\nprolong a stop before or after completing the investigation.\n\n Neither can Griffin be distinguished because of the time difference.\n\nAlthough the unrelated questions in Griffin prolonged the stop by about 30\n\nseconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the\n\nstop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court\n\nwas clear that the length of time is immaterial. The Court rejected the Eighth\n\nCircuit’s de minimis rule, under which minor extensions of seizures were tolerated.\n\nSee id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay\n\nis less serious than a seven minute delay would revive a standard—be it\n\ncharacterized as a de minimis rule or as overall reasonableness—that the Supreme\n\nCourt specifically rejected.\n\n 20\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 21 of 32\n\n\n Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we\n\nfind that Rodriguez abrogates Griffin.\n\n Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for\n\nexample, that the officer unlawfully prolonged the stop by taking a few seconds to\n\nretrieve his coat or by looking Campbell in the eye while they conversed rather\n\nthan exclusively focusing on writing the ticket. But Rodriguez does not prohibit all\n\nconduct that in any way slows the officer from completing the stop as fast as\n\nhumanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.\n\nat 1616 (“On-scene investigation into other crimes . . . detours from that\n\nmission.”). The problem with the dog sniff was that it was “a measure aimed at\n\ndetecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation\n\nomitted). And efforts to “detect crime in general or drug trafficking in particular”\n\nare “different in kind” from interests in highway and officer safety. Id. at 1616.\n\n We think the proper standard emanating from Rodriguez is this: a stop is\n\nunlawfully prolonged when an officer, without reasonable suspicion, diverts from\n\n\n\n 14\n Of course, the officer could be so slow as to warrant a claim that the officer was not\ndiligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”\nRodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line\ntime limit on how long a stop can last before it becomes an unreasonable seizure. See United\nStates v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an\ninvestigative stop continues indefinitely, at some point it can no longer be justified as an\ninvestigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also\nPlace, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for\na permissible Terry stop[.]”).\n 21\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 22 of 32\n\n\nthe stop’s purpose and adds time to the stop in order to investigate other crimes.\n\nSee id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully\n\nprolong, the officer must (1) conduct an unrelated inquiry aimed at investigating\n\nother crimes (2) that adds time to the stop (3) without reasonable suspicion.\n\n Most circuits that have addressed Rodriguez have reached a similar\n\nconclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)\n\n(suggesting that 75 seconds used to call for backup might unlawfully prolong the\n\nstop, but the record was inadequate to determine if the officer’s purpose was for\n\nsafety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,\n\n902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated\n\nquestioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th\n\nCir. 2018) (finding that officer did not have consent or reasonable suspicion to\n\nquestion passenger after mission completed); United States v. Gomez, 877 F.3d 76,\n\n88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether\n\nthe unrelated inquiry adds time to the stop at all, and finding that asking a few\n\nquestions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,\n\n715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United\n\nStates v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated\n\nquestions violated the standard which says an officer can ask such questions only if\n\nthey do not extend the duration of the stop). But see United States v. Collazo, 818\n\n 22\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 23 of 32\n\n\nF.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall\n\nreasonableness standard).\n\n With this understanding of Rodriguez, we address the case at hand. On\n\nappeal, Campbell points to several actions that he maintains prolonged the stop.\n\nFirst, he identifies the numerous questions McCannon asked about his travel plans.\n\nMcCannon spent approximately two minutes asking Campbell where he was going\n\nand why. We find that these questions were related to the purpose of the stop.\n\n Generally, questions about travel plans are ordinary inquiries incident to a\n\ntraffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur\n\ncase law allows an officer carrying out a routine traffic stop . . . to inquire into the\n\ndriver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,\n\n660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation\n\ninclude “inquiring about the occupants’ destination, route, and purpose”); United\n\nStates v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may\n\nalso ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);\n\nUnited States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to\n\na driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United\n\nStates v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly\n\nheld (as have other circuits) that questions relating to a driver’s travel plans\n\nordinarily fall within the scope of a traffic stop.”).\n\n 23\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 24 of 32\n\n\n More specifically, in this case, Campbell’s travel plans were relevant to the\n\ntraffic violation—a malfunctioning turn signal. In McCannon’s experience, a\n\nrapidly blinking turn signal indicates that a bulb is either out or is about to go out.\n\nSince Campbell was traveling for a long distance, the chances that his turn signal\n\nwould stop working while he was driving increased accordingly. For this reason,\n\nasking about Campbell’s travel plans was a related and prudent part of\n\ninvestigating his malfunctioning turn signal. 15\n\n Campbell also argues that the questions about whether he had contraband in\n\nhis car unlawfully prolonged the stop. Just before asking for Campbell’s consent\n\nto search the car, McCannon queried:\n\n “[Do you have] any counterfeit merchandise that you are taking to\n your relatives over there in Augusta? And what I mean by that is‐‐any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or\n anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?”\n\nThese questions were not related to a traffic stop for a malfunctioning turn signal\n\nand allegedly crossing the fog line. These questions were inquiring about “crime\n\nin general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.\n\nThey added 25 seconds to the stop. And the Government does not contend that\n\n\n 15\n Admittedly, McCannon acknowledged that the reason he took such interest in\nCampbell’s destination was because that part of Augusta was a high crime area. But in this area\nof the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116\nS. Ct. at 1774.\n 24\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 25 of 32\n\n\nMcCannon had reasonable suspicion. Consequently, we find that these questions\n\nunlawfully prolonged the stop.\n\n C.\n\n Normally, if an officer unlawfully prolongs a stop, any evidence uncovered\n\nas a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at\n\n2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.\n\nat 2426–27. 16\n\n Davis excepts from the exclusionary rule evidence the police obtain in\n\nsearches conducted “in objectively reasonable reliance on binding appellate\n\nprecedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”\n\nof the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.\n\nCt. at 2426, and suppressing evidence obtained from a search that was lawful when\n\nconducted would “do nothing to deter” police wrongdoing while coming “at a high\n\ncost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.\n\n At the time of Campbell’s arrest, Griffin was our last word on the issue and\n\nthe closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin\n\nheld that an officer’s unrelated questioning lasting no more than 30 seconds did not\n\n\n\n 16\n As an aside, we cannot use the good faith exception to avoid deciding whether there\nwas a constitutional violation. To do so would deny the retroactive effect of constitutional\ncriminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive\napplication of a new rule of substantive Fourth Amendment law raises the question whether a\nsuppression remedy applies; it does not answer that question.”).\n 25\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 26 of 32\n\n\nunconstitutionally prolong the stop because the officer “had not yet completed his\n\ninvestigation . . . and because he acted diligently[.]” Id. at 1362.\n\n The facts here fit squarely within Griffin’s parameters. McCannon lawfully\n\nstopped Campbell to investigate a traffic violation. His unrelated questions lasted\n\n25 seconds. He asked them before he had completed the stop by issuing the\n\nwarning ticket. And the District Court found that McCannon “diligently\n\ninvestigated” the traffic violations and “expeditiously” completed the citations.\n\nWe cannot say the District Court clearly erred in so finding. As such, Griffin\n\ncontrols, and McCannon acted in “objectively reasonable reliance on binding\n\nappellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.\n\n However, the Government did not raise the good faith exception on appeal.\n\nTypically, when an appellee waives or abandons an affirmative defense, we will\n\nnot consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,\n\n1318–19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional\n\nlimitation, and we can reach a waived issue in “exceptional circumstances” at our\n\ndiscretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th\n\nCir. 1984). Here, even though the Government did not present the issue on appeal,\n\nboth parties submitted briefs on whether the good faith exception applied to the\n\nDistrict Court. Furthermore, the applicability of the exception to this case is\n\nplain—Griffin is on all fours with this case—and ignoring it would be a\n\n 26\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 27 of 32\n\n\nmiscarriage of justice. The exclusionary rule is meant to deter unlawful conduct\n\nby the police; punishing law enforcement for following the law at the time does not\n\ndo this. If we ignored the good faith exception, we would be suppressing the truth\n\nto no end other than teaching the Government’s counsel a well-deserved lesson.\n\nWe decline to do so.\n\n III.\n\n Deputy McCannon had reasonable suspicion to stop Campbell for a traffic\n\nviolation. He unlawfully prolonged the stop when he asked unrelated questions\n\nwithout reasonable suspicion about whether Campbell was trafficking contraband.\n\nBecause these questions were permitted under binding precedent at the time,\n\nhowever, the good faith exception applies and we decline to invoke the\n\nexclusionary rule. Thus, there is no need to consider whether Campbell’s consent\n\npurged the taint from the unlawfully prolonged seizure.17 Nor do we reach the\n\nquestion of whether the consent issue was waived.\n\n AFFIRMED.\n\n\n\n\n 17\n When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any\nsubsequent discovery of evidence produced by that seizure would normally be tainted. However,\nif the defendant consents to the search after the stop is unlawfully prolonged but before the\nevidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d\n662, 676 (11th Cir. 2000). To do this, the government must show (1) that the consent is\nvoluntary and (2) that the consent is not a product of the illegal seizure. United States v.\nDelancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is\nadmissible under the good faith exception, we are spared from pursuing this analysis.\n 27\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 28 of 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356990/", "author_raw": "TJOFLAT, Circuit Judge:"}, {"author": "MARTIN, Circuit Judge, concurring", "type": "concurrence", "text": "MARTIN, Circuit Judge, concurring in part and dissenting in part:\n\n The Majority is right that, under the Supreme Court’s decision in Rodriguez\n\nv. United States, 575 U.S. __, 135 S. Ct. 1609 (2015), the patrolman here\n\nunlawfully prolonged the traffic stop of Mr. Campbell. Maj. Op. at 23–25. It is\n\nalso true that our Court’s decision in United States v. Griffin, 696 F.3d 1354 (11th\n\nCir. 2012), which established this court’s pre-Rodriguez standard for prolongation,\n\ncannot be squared with the Supreme Court’s subsequent ruling in Rodriguez. Maj.\n\nOp. at 18–21.\n\n I write separately from the Majority, however, because in contrast to the\n\nresult reached in the Majority opinion, I believe Mr. Campbell should prevail. I\n\nwould not apply the exclusionary rule’s good faith exception to affirm the District\n\nCourt’s denial of Mr. Campbell’s suppression motion because the Government\n\nnever made that argument on appeal. Indeed, the government did not make this\n\nargument despite having been put on notice of the issue by the District Court and\n\nhaving ample opportunity to raise it. Due to the government’s waiver of this\n\nargument, I would suppress evidence derived from the unlawfully prolonged traffic\n\nstop of Mr. Campbell as fruit of the poisonous tree.\n\n Under this Court’s precedent, “a party seeking to raise a claim or issue on\n\nappeal must plainly and prominently so indicate. Otherwise, the issue—even if\n\nproperly preserved at trial—will be considered abandoned.” United States v.\n\n 28\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 29 of 32\n\n\nJernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also Access Now, Inc. v.\n\nSw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well\n\nsettled in this Circuit that a legal claim or argument that has not been briefed\n\nbefore the court is deemed abandoned and its merits will not be addressed.”). Our\n\nCourt regularly applies this rule to bar arguments criminal defendants and pro se\n\nplaintiffs made in the trial court but neglected to raise again on appeal. See, e.g.,\n\nHall v. Thomas, 611 F.3d 1259, 1284 n.37, 1289 n.40, 1290 n.41 (11th Cir. 2010)\n\n(holding a juvenile sentenced to life imprisonment waived certain arguments raised\n\nin his habeas petition by failing to reassert them on appeal); Timson v. Sampson,\n\n518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs filed by\n\npro se litigants liberally, issues not briefed on appeal by a pro se litigant are\n\ndeemed abandoned.” (citation omitted)); cf. United States v. Vanorden, 414 F.3d\n\n1321, 1323 & n.1 (11th Cir. 2005) (per curiam) (acknowledging “neither Blakely\n\nnor Booker had been decided” at the time a criminal defendant first appealed his\n\nsentence, but nonetheless holding the defendant abandoned challenges to his\n\nsentence on “Sixth Amendment-Apprendi-Blakely-Booker grounds” by failing to\n\nraise the issue in his first appeal).\n\n This very case gives insight into this Court’s routine reliance upon waiver to\n\nwinnow issues presented in the appeals we consider. Here, both the government\n\nand this panel suggested at oral argument that Mr. Campbell might have waived\n\n 29\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 30 of 32\n\n\nhis fruit-of-the-poisonous tree argument because, although plainly mentioned in his\n\nopening brief, the issue was not separately listed as a claim in Campbell’s\n\n“Statement of Issues.” See Oral Arg. at 11:36–11:44 (“We have a hard-and-fast\n\nrule in this Circuit. It’s pretty punitive, really. That if you don’t put it in the brief\n\nas an issue, we don’t consider it.” (comment of Judge Tjoflat)), 13:40–14:20\n\n(government arguing the Court should deem waived issues not prominently raised\n\nin a brief, because “[w]hen we’re coming before this Court it’s important that we\n\nknow as the responding party, as the appellee, what issues the appellant believes\n\nare germane”).\n\n Nevertheless, the Majority affirms the District Court’s denial of Mr.\n\nCampbell’s suppression motion on the good faith exception, an argument the\n\ngovernment never asserted on appeal. To be clear, the government did not argue\n\nthe good faith exception in its initial brief, at oral argument, or in any supplemental\n\nfiling. Yet the Majority invokes the good faith exception based on briefing the\n\nparties submitted in District Court, at the explicit direction of that court.\n\n The Majority also holds that the application of the good faith exception to\n\nthis case is “plain.” Maj. Op. at 27. I must say, it is not “plain” to me. The\n\ngovernment is a sophisticated, often-appearing party before this Court. As such,\n\nthe government should be left to the decisions it makes about what arguments it\n\nwants us to consider. We know the government was aware of the issue of the\n\n 30\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 31 of 32\n\n\n“good faith exception” here, because the District Court specifically requested\n\nbriefing on the subject. Under the circumstances, I would not reach out to decide\n\nMr. Campbell’s fate on a ground abandoned by the government.\n\n Neither would I affirm on the ground Mr. Campbell consented to the\n\nunlawfully-prolonged search. The Majority did not reach this issue because it\n\nconcluded the evidence was admissible under the good faith exception. Maj. Op.\n\nat 5 & nn.5, 17. However, just as the government never raised the good faith\n\nexception, it neglected to mention the possibility of Mr. Campbell’s consent until\n\nthis Court prompted it to do so. See Order Denying Mot. to Suppress at 14 (“The\n\nGovernment, however, does not argue, nor does the evidence establish, that Deputy\n\nMcCannon had reasonable suspicion of criminal activity beyond the traffic\n\nviolations to detain Defendant or that the encounter had become consensual before\n\nDefendant gave consent to search his vehicle.”).1 “The government bears the\n\nburden of proving both the existence of consent and that the consent was not a\n\nfunction of acquiescence to a claim of lawful authority but rather was given freely\n\nand voluntarily.” United States v. Yeary, 740 F.3d 569, 581 (11th Cir. 2014)\n\n(quotation marks omitted). The government’s failure to raise Mr. Campbell’s\n\n\n\n\n 1\n Even though the government failed to raise consent before the District Court, the\nDistrict Court nonetheless briefly addressed the issue, finding that because “Deputy McCannon\nretained [Mr. Campbell’s] driver’s license throughout the encounter, . . . therefore [Mr.\nCampbell] was not free to leave.”\n 31\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 32 of 32\n\n\nconsent before the District Court and on appeal means this argument is also\n\nwaived. See Jernigan, 341 F.3d at 1283 n.8.\n\n I would not put this Court in the business of resuscitating arguments the\n\ngovernment was made aware of, then clearly abandoned. In my experience, this\n\nCourt rarely extends the same courtesy to the criminal defendants and pro se\n\nlitigants who come before us. Based on the Majority’s conclusion that the\n\npatrolman unlawfully prolonged the traffic stop, I would reverse the District\n\nCourt’s denial of Mr. Campbell’s suppression motion.\n\n I respectfully dissent from the Majority’s decision not to suppress the search\n\nof Mr. Campbell’s automobile.\n\n\n\n\n 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356990/", "author_raw": "MARTIN, Circuit Judge, concurring"}]}	TJOFLAT	MARTIN	MURPHY	1		{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4579737/	Published	1	1	0	1	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-10128 Date Filed: 01/08/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-10128\n ________________________\n\n D.C. Docket No. 3:14-cr-00046-CAR-CHW-1\n\n\nUNITED STATES OF AMERICA,\n\n\n Plaintiff-Appellee,\n\nversus\n\nERICKSON MEKO CAMPBELL,\n\n Defendant-Appellant.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n ________________________\n\n (January 8, 2019)\n\nBefore TJOFLAT and MARTIN, Circuit Judges, and MURPHY,∗ District Judge.\n\nTJOFLAT, Circuit Judge:\n\n\n\n ∗\n Honorable Stephen J. Murphy III, District Judge for the United States District Court for\nthe Eastern District of Michigan, sitting by designation.\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 2 of 32\n\n\n This appeal presents important questions about the proper confines of a\n\ntraffic stop. First, whether a highway patrolman had reasonable suspicion to stop a\n\nmotorist for a rapidly blinking turn signal. Second, if there was reasonable\n\nsuspicion, whether the seizure became unreasonable when the patrolman prolonged\n\nthe stop by questioning the motorist about matters unrelated to the stop’s mission.\n\nThe District Court concluded that the initial stop was valid and that the questioning\n\nabout unrelated matters did not transform the stop into an unreasonable seizure.\n\nThe District Court therefore denied the motorist’s motion to suppress inculpatory\n\nevidence discovered during a subsequent search.\n\n We agree that there was reasonable suspicion to stop the motorist. But we\n\nfind that under the Supreme Court’s recent decision in Rodriguez v. United States,\n\n135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because\n\nhis actions were permitted under binding case law at the time, however, the good\n\nfaith exception to the exclusionary rule applies. We thus affirm the denial of the\n\nmotion to suppress.\n\n I.\n\n A.\n\n At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert\n\nMcCannon was patrolling Interstate 20 in Georgia when he observed a Nissan\n\n\n\n\n 2\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 3 of 32\n\n\nMaxima cross the fog line. 1 McCannon activated the camera on the dashboard of\n\nhis patrol car, and after observing the Maxima cross the fog line a second time and\n\nnoticing that its left turn signal blinked at an unusually rapid pace, he pulled the car\n\nover. He approached the Maxima, introduced himself to the driver, Erickson\n\nCampbell, asked him for his driver’s license, and explained why he had pulled him\n\nover. After determining that the Maxima’s left turn signal was malfunctioning,\n\nMcCannon decided to issue Campbell a warning for failing to comply with two\n\nGeorgia traffic regulations: failure to maintain signal lights in good working\n\ncondition,2 and failure to stay within the driving lane.3 McCannon asked Campbell\n\n\n 1\n The “fog line” is the line on the side of the highway that separates the highway from the\nshoulder, marking the end of the highway’s outside lane.\n 2\n O.C.G.A. § 40–8–26 states, in pertinent part:\n (a) Any motor vehicle may be equipped . . . with the following signal lights or devices:\n\n ....\n\n (2) A light or lights or mechanical signal device capable of clearly indicating any\n intention to turn either to the right or to the left and which shall be visible from\n both the front and the rear.\n\n (b) Every . . . signal light or lights indicating intention to turn shall be visible and\n understandable during daytime and nighttime from a distance of 300 feet from both the\n front and the rear. . . . [S]uch light or lights shall at all times be maintained in good\n working condition.\n 3\n O.C.G.A. § 40–6–48 states, in pertinent part:\n Whenever any roadway has been divided into two or more clearly marked lanes for\n traffic, the following rules, in addition to all others consistent with this Code section,\n shall apply:\n\n (1) A vehicle shall be driven as nearly as practicable entirely within a single lane\n and shall not be moved from such lane until the driver has first ascertained that\n such movement can be made with safety.\n\n 3\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 4 of 32\n\n\nto step out of his car and accompany him to the patrol car while he wrote the\n\nwarning ticket.\n\n While writing the ticket, McCannon asked the dispatcher to run a check on\n\nCampbell’s license and engaged Campbell in conversation. He learned that\n\nCampbell was en route to Augusta to see his family, where Campbell worked, that\n\nCampbell had been arrested sixteen years ago for a DUI, and that Campbell was\n\nnot traveling with a firearm. Then he asked Campbell if he had any counterfeit\n\nCDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,\n\necstasy, or dead bodies in his car. Campbell answered that he did not. At that\n\ntime, McCannon asked Campbell if he could search his car for any of those items,\n\nand Campbell consented.\n\n While McCannon continued writing the warning ticket, Deputy Patrick\n\nPaquette, who had arrived on the scene a few minutes earlier, began searching the\n\ncar. McCannon finished the warning ticket and had Campbell sign it. After giving\n\nCampbell the ticket and returning his license, McCannon joined Paquette in the\n\nsearch. They found a 9mm semi-automatic pistol, 9mm ammunition, a black\n\nstocking cap, and a camouflage face mask in a bag hidden under the carpet in the\n\nMaxima’s trunk. Confronted, Campbell admitted that he lied about not traveling\n\nwith a firearm because he was a convicted felon and had done time.\n\n B.\n\n 4\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 5 of 32\n\n\n Campbell was indicted for possessing a firearm as a convicted felon, in\n\nviolation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the\n\nevidence found in the search of his car was obtained in violation of the Fourth\n\nAmendment’s prohibition against unreasonable searches and seizures, and moved\n\nthe District Court to suppress it. 4 He presented two arguments in support of his\n\nmotion. First, the seizure was unreasonable because Deputy McCannon lacked\n\nreasonable suspicion to believe that a traffic violation had occurred. Second, even\n\nif there was reasonable suspicion, his seizure became unreasonable when\n\nMcCannon prolonged the stop by asking Campbell questions unrelated to the\n\npurpose of the stop. In turn, the unreasonable seizure tainted any consent he had\n\ngiven the officers to search his car, requiring that the evidence uncovered during\n\nthe search be suppressed. 5\n\n Campbell’s first argument was that his rapidly blinking turn signal did not\n\nsupply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26\n\nrequires is that the turn signal “indicate a driver’s intention to change lanes,” and\n\nthe Maxima’s left turn signal was able to do that. That the signal was not blinking\n\n\n\n 4\n The Fourth Amendment states, in pertinent part, that “The right of the people to be\nsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures,\nshall not be violated.” The Fourth Amendment is applicable to the states through the Due\nProcess Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,\n1692 (1961).\n 5\n Campbell also argued that the search was tainted because it exceeded the scope of any\nconsent he had given, but this issue is not before us on appeal.\n 5\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 6 of 32\n\n\nas designed was irrelevant, Campbell said, because the statute did not require that a\n\nturn signal “(1) blink in unison with the other turn signal, (2) blink at a certain\n\npace, or even, (3) blink as intended by the vehicle manufacturer.” 6\n\n Campbell’s second argument was that McCannon unlawfully prolonged the\n\nstop by asking questions unrelated to the purpose of the stop. Specifically, he\n\nchallenged questions on the following topics:\n\n McCannon asked: (1) where he was going, (2) who he was going to\n see, (3) where he worked, (4) if he had time off work, (5) when his\n last traffic ticket was, (6) if he had ever been arrested, (7) how old his\n car was, (8) how good of a deal he got on his car, (9) whether he had\n any counterfeit merchandise in the car, and, (10) if he had a dead body\n in the car.\n\nRelying on the Supreme Court’s decision in Rodriguez, Campbell maintained that\n\nif McCannon prolonged the stop at all through these inquiries, the stop became\n\nunlawful.\n\n The District Court held an evidentiary hearing on Campbell’s motion to\n\nsuppress. Deputy McCannon, whom the Government called to the stand at the\n\noutset of the hearing, was the sole witness. Aside from his testimony, the Court\n\nhad the benefit of the video created by the dashboard camera. The video portrays\n\nwhat transpired between McCannon’s activation of the camera and Campbell’s\n\narrest, including the questioning Campbell complains of as unrelated to the\n\n\n 6\n Campbell also denied that reasonable suspicion existed for allegedly crossing the fog\nline. The District Court did not reach this argument and neither do we.\n 6\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 7 of 32\n\n\npurpose of the stop. The video’s timestamps indicate precisely when this\n\nquestioning took place. The following bullet points, headed by the timestamps,\n\ndemonstrate this.\n\n • 0:00: McCannon activates the camera.\n • 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the\n car’s license plate number. The dispatcher runs the number and informs\n him that it belongs to Erickson Campbell, an “active felon.”\n • 2:31: McCannon activates his patrol car’s flashing lights.\n • 2:36–58: Campbell pulls over.\n • 3:25–32: McCannon approaches the car from the passenger side and\n requests Campbell’s driver’s license.\n • 3:34–4:42: McCannon explains to Campbell that he stopped him for\n “weaving in his lane” and because his left turn signal was blinking\n rapidly. McCannon says the rapid blinking means “you’ve got a bulb\n out somewhere.” He then checks the lights in the front and back of the\n car, none of which are out. McCannon says it must be that the turn\n signal is “about to go bad,” but that he won’t write a ticket for that—\n just a warning.\n • 4:43–5:09: McCannon asks Campbell where he is going. Campbell\n says he is traveling to Augusta, Georgia. McCannon asks why he is\n going there, and Campbell responds that he is going to see his family.\n • 5:10–13: McCannon asks Campbell to step out of the car and walk with\n him to the patrol car where he will write the warning.\n • 5:48: McCannon begins writing the warning ticket.\n • 6:13–29: McCannon asks Campbell about his family in Augusta,\n adding that he knows a little about Augusta. Campbell says he does not\n know much about Augusta; he just has family there. McCannon\n continues writing the ticket.\n • 6:30–57: McCannon asks Campbell what type of work he does.\n Campbell says that he works for American Woodlawn, building for\n Home Depot and Lowes.\n • 7:07–27: McCannon asks Campbell where his family lives in Augusta.\n Campbell responds that his family lives off of Watson Road.\n McCannon indicates he knows approximately where that is, and\n continues writing the ticket.\n\n\n 7\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 8 of 32\n\n\n • 7:48–8:30: McCannon stops writing to retrieve his jacket from the\n patrol car.\n • 8:32–38: McCannon asks Campbell if he is traveling with a firearm.\n Campbell shakes his head no.\n • 9:07: McCannon acknowledges Sergeant Paquette, who has just\n arrived off camera. 7\n • 9:12–18: McCannon asks Paquette to “come here and let me ask you\n about this location.” McCannon tells Campbell that Paquette is from\n Augusta.\n • 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s\n driver’s license.\n • 9:40–54: McCannon asks Campbell if he had been arrested before.\n Campbell responds yes, about sixteen years ago, for a DUI.\n • 10:00–56: McCannon and Paquette ask Campbell about his destination\n and where his family lives in Augusta, while McCannon continues to\n intermittently write the ticket.\n • 11:16–19: McCannon: “I know I asked you if you have any firearms\n tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”\n • 11:20–45: McCannon: “Any counterfeit merchandise that you’re\n taking to your relatives in Augusta? And what I mean by that is—any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?\n Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?” Campbell shakes his head or\n otherwise responds in the negative to each question.\n • 11:47–55: McCannon: “I know you said you didn’t have that, and I’m\n not accusing you of anything—can I search it? Can I search your car\n for any of those items I asked you about?” Campbell responds in the\n affirmative, nodding and gesturing toward the car.\n • 12:02–13:05: Paquette pats down Campbell after McCannon indicates\n that he had not yet done so. McCannon continues writing the ticket.\n • 13:06: Paquette begins searching the car.\n • 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does\n so and returns it to McCannon.\n • 14:00: McCannon hands the ticket to Campbell.\n • 16:18–19:58: McCannon and Paquette search the car.\n\n 7\n Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling\nthe highway, and had pulled over to assist.\n 8\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 9 of 32\n\n\n • 19:58–20:08: Paquette informs McCannon that he has discovered a gun\n and a ski mask.\n • 20:30–21:02: The officers finish searching the car and place Campbell\n in handcuffs.\n • 21:25–40: McCannon informs Campbell of his Miranda rights.\n • 24:12–48: McCannon tells Campbell he is under arrest for felon in\n possession of a firearm. McCannon places Campbell in the rear of his\n patrol car to be taken to the Greene County jail.\n\n From the time McCannon began writing the warning ticket to Campbell’s\n\nconsent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell\n\nconsented 8 minutes and 57 seconds after McCannon made the stop.\n\n C.\n\n At the conclusion of the evidentiary hearing, the District Court asked the\n\nparties for supplemental briefing to address the possible application of the\n\nRodriguez decision. The District Court also requested supplemental briefing on\n\nthe applicability of Davis v. United States, in which the Supreme Court held that\n\nthe Fourth Amendment’s exclusionary rule should not apply when the police act in\n\ngood-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.\n\n2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.\n\n The District Court determined that the rapidly blinking turn signal provided\n\nreasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in\n\ngood working condition. The Court reasoned that McCannon had reasonable\n\nsuspicion to believe that the rapidly blinking turn signal violated this requirement.\n\nThe Court further concluded that McCannon had “reasonable suspicion to initiate\n 9\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 10 of 32\n\n\nthe stop to determine whether the front signal lights were functioning properly.”\n\nThe Court based this conclusion on McCannon’s testimony that in his experience a\n\nrapidly blinking turn signal indicates either a bulb is out or is about to go out.\n\nGiven this finding, there was no need to address the failure-to-maintain-lane\n\nviolation.\n\n After finding reasonable suspicion, the District Court moved to the\n\nprolongation issue. The Court found that precedent entitled McCannon to ask\n\nCampbell about his destination and the purpose of his trip; the year his car was\n\nmade; the last traffic citation he received; his criminal history8; and whether he was\n\ntraveling with a firearm. As the Court put it, “[t]hese questions either addressed the\n\ntraffic violation or were related to legitimate safety concerns.”\n\n But the questions about contraband, the Court said, were not related to the\n\npurpose of the stop. These questions—about counterfeit merchandise, drugs, and\n\ndead bodies—and Campbell’s negative responses, consumed all of 25 seconds.\n\nImmediately thereafter, Campbell consented to the search of his automobile.\n\n Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th\n\nCir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated\n\nquestions ‘did not transform the stop into an unconstitutionally prolonged\n\n\n 8\n Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held\nthat McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch\nto run [Defendant’s] license information.”\n 10\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 11 of 32\n\n\nseizure.’” The Court concluded that the overall length of the stop was reasonable\n\nand that McCannon conducted the stop expeditiously. Because the seizure was\n\nreasonable, there was no reason for the Court to decide whether the consent was\n\ntainted or the good faith exception to the exclusionary rule applied.\n\n Following the Court’s ruling, Campbell entered a conditional guilty plea,\n\npreserving the right to appeal the denial of his motion to suppress. See Fed. R.\n\nCrim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month\n\nsentence.\n\n II.\n\n “A denial of a motion to suppress involves mixed questions of fact and law.”\n\nUnited States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).\n\nWe review the District Court’s findings of fact for clear error, considering all the\n\nevidence in the light most favorable to the prevailing party—in this case, the\n\nGovernment. Id. But we review de novo the District Court’s application of the\n\nlaw to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.\n\n2010). Our review is not moored to the evidence presented at the suppression\n\nhearing; we are free to look at the whole record. United States v. Newsome, 475\n\nF.3d 1221, 1224 (11th Cir. 2007).\n\n A.\n\n\n\n\n 11\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 12 of 32\n\n\n A traffic stop is a seizure within the meaning of the Fourth Amendment.\n\nWhren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To\n\ncomply with the Fourth Amendment, the officer must have reasonable suspicion.\n\nHeien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to\n\njustify [a traffic stop], officers need only reasonable suspicion[.]” (quotation\n\nomitted)). 9 That is, the officer must have “a particularized and objective basis for\n\nsuspecting the person stopped of criminal activity.” Navarette v. California, 572\n\nU.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even\n\nminor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277\n\n(11th Cir. 2003). The question here is whether a rapidly blinking turn signal\n\ncreates reasonable suspicion that a traffic violation has occurred.\n\n Georgia law requires that a vehicle be equipped with right and left turn\n\nsignal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an\n\nintention to turn right or left and be visible from the front and rear from a distance\n\nof 300 feet. In addition, such lights “shall at all times be maintained in good\n\n\n 9\n The parties and the District Court mention needing reasonable suspicion or probable\ncause. This framing is understandable given the Supreme Court’s declaration in Whren that “the\ndecision to stop an automobile is reasonable where the police have probable cause to believe that\na traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also\nechoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)\n(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to\nbelieve that a traffic violation has occurred.”). But the Supreme Court has since made it plain\nthat reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable\ncause is sufficient, only reasonable suspicion is necessary.\n\n\n 12\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 13 of 32\n\n\nworking condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the\n\ngood working condition requirement is separate. If all the statute demanded is that\n\nthe turn signal be visible from 300 feet and clearly indicate an intention to change\n\nlanes, the good working condition language would be superfluous. It must mean\n\nmore.\n\n Typically, when a turn signal blinks rapidly, it does so to notify the driver\n\nthat a bulb is out or is about to go out. It can also mean that there is a problem\n\nwith the wiring. Campbell maintains that a rapidly blinking turn signal works as\n\nintended—to notify the driver of a potential problem—and equipment that works\n\naccording to design must be in good working condition. But the rapid blinking is\n\nan alert that something, be it an expired bulb or faulty wiring, might not be in good\n\nworking condition. Thus, the rapidly blinking turn signal provided McCannon\n\nwith reasonable suspicion to believe that Campbell’s car was in violation of the\n\ntraffic code. On that basis, 10 we affirm the District Court’s holding that\n\nMcCannon’s initiation of the stop was lawful and proceed to the issue of whether\n\nhis unrelated inquiries turned Campbell’s seizure into a Fourth Amendment\n\nviolation.\n\n\n\n\n 10\n The District Court also noted that even if McCannon was mistaken that the rapidly\nblinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,\nhis mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion\nnecessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.\n 13\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 14 of 32\n\n\n B.\n\n Even if the police have reasonable suspicion to make a traffic stop, they do\n\nnot have unfettered authority to detain a person indefinitely. The detention is\n\n“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.\n\n1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation\n\ndiligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges\n\nthat an officer always has to be reasonably diligent.” (quotation omitted)); see also\n\nUnited States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n\n\nassessing the effect of the length of the detention, we take into account whether the\n\npolice diligently pursue their investigation.”). And officers cannot unlawfully\n\nprolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.\n\n The Supreme Court expanded on unlawfully prolonged traffic stops in\n\nRodriguez. In that case, police pulled over a vehicle for swerving onto the\n\nshoulder. Id. at 1612. After writing a warning ticket and returning the license,\n\nregistration, and proof of insurance to the driver, the officer made the driver and\n\npassenger wait for seven or eight minutes while he conducted a dog sniff. Id. at\n\n1613. The dog discovered contraband, and the driver sought to suppress the\n\nevidence. Id. On appeal, the Eighth Circuit determined that a seven or eight\n\nminute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme\n\nCourt rejected the de minimis standard. Id. at 1615–16.\n\n 14\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 15 of 32\n\n\n The Supreme Court explained that a traffic stop is analogous to a Terry stop.\n\nId. at 1614. As such, the scope of the stop “must be carefully tailored to its\n\nunderlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the\n\ncontext of a traffic stop, “the tolerable duration of police inquiries . . . is\n\ndetermined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation\n\nomitted). The mission of a traffic stop is “to address the traffic violation that\n\nwarranted the stop . . . and attend to related safety concerns[.]” Id. The stop may\n\n“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460\n\nU.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied\n\nto the traffic infraction are—or reasonably should have been—completed.” Id.\n\n The question becomes, which tasks are related to the stop’s purpose? The\n\nCourt identified a number of tasks it says are “ordinary inquiries incident to [the\n\ntraffic] stop.” Id. at 1615 (alteration in original). These inquiries include\n\n“checking the driver’s license, determining whether there are outstanding warrants\n\nagainst the driver, and inspecting the automobile’s registration and proof of\n\ninsurance.” Id. Inquiries such as these ensure “that vehicles on the road are\n\noperated safely and responsibly.” Id.\n\n The Court has also identified tasks that are not related to a stop’s purpose.\n\nIn Arizona v. Johnson, for example, the Court said asking about a passenger’s gang\n\naffiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).\n\n 15\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 16 of 32\n\n\nSimilarly, using a dog to search for contraband is not related. Rodriguez, 135 S.\n\nCt. at 1615. A dog sniff lacks “the same close connection to roadway safety as the\n\nordinary inquiries,” and cannot be “fairly characterized as part of the officer’s\n\ntraffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of\n\nordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).\n\n In short, related tasks are the “ordinary inquiries incident to a traffic stop”;\n\nunrelated tasks are “other measures aimed at detecting criminal activity more\n\ngenerally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)\n\n(interpreting Rodriguez).\n\n That said, unrelated inquiries are permitted so long as they do not add time\n\nto the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain\n\nunrelated checks during an otherwise lawful traffic stop. But . . . he may not do so\n\nin a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems\n\ncounterintuitive: how could an officer conduct unrelated inquiries without adding\n\nat least some time to the stop? Precedent provides the answer.\n\n In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.\n\n543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the\n\ntransmission and immediately headed for the scene with his narcotics-detection\n\ndog.” Id. The second officer conducted the dog sniff while the first officer “was\n\nin the process of writing a warning ticket[.]” Id. Thus, because there were\n\n 16\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 17 of 32\n\n\nmultiple officers, one of them was able to conduct an unrelated inquiry without\n\nadding time to the stop.\n\n Similarly, in Johnson, three officers pulled over a car with three passengers.\n\n555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries\n\ninto the driver’s license and registration, another officer questioned the passenger,\n\nJohnson. Id. at 327–28. This officer made unrelated inquiries into whether\n\nJohnson was affiliated with a gang, id. at 328, but because the first officer\n\nsimultaneously followed up on the purpose of the stop, it did not add any time.\n\n In this way, the Rodriguez Court suggested that its decision—commanding\n\nthat a stop “may last no longer than is necessary” to complete its purpose—was a\n\nsimple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in\n\nCaballes and Johnson heed these constraints. In both cases, we concluded that the\n\nFourth Amendment tolerated certain unrelated investigations that did not lengthen\n\nthe roadside detention.” (emphasis added)). But this Court, in conjunction with a\n\nnumber of our sister circuits, 11 had interpreted the precedent cases to establish a\n\ndifferent standard.\n\n\n 11\n Almost all of the circuits developed a rule looking to whether the length of the stop as a\nwhole was reasonable and finding that brief extensions did not transform the stop into an\nunreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United\nStates v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45\n(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United\nStates v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220\n(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th\nCir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.\n 17\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 18 of 32\n\n\n In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered\n\nthe appropriate standard to decide prolongation cases. As part of that\n\nconsideration, we looked to the Supreme Court’s ruling in Johnson,12 where the\n\nCourt condoned unrelated inquiries “so long as those inquiries do not measurably\n\nextend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555\n\nU.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we\n\ndetermined that the issue of whether unrelated questions “measurably extended or\n\nprolonged the duration of the stop so as to make it unreasonable under the Fourth\n\nAmendment” should be decided by an overall reasonableness standard. Id. at 1362\n\n(“To address this issue, we do not simply look at the interval of prolongation in\n\nisolation, but rather assess the length of the stop as a whole, including any\n\nextension of the encounter, by undertaking a fact-bound, context-dependent\n\n\n\nOlivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,\n1269 (10th Cir. 2007).\n 12\n We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125\nS. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person\nabout her immigration status while she was detained during the execution of a search warrant—\nby other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.\n(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the\ndetention, the Court held that the officers did not need independent reasonable suspicion to ask\nabout her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully\nconsistent with the idea that unrelated inquiries are permitted only if they do not add time to the\nstop. The unrelated questions did not prolong the stop because other officers executed the search\nwarrant.\n 13\n The standard from Johnson resembled the one from Caballes, where the Court said a\ntraffic stop “can become unlawful if it is prolonged beyond the time reasonably required to\ncomplete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.\n 18\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 19 of 32\n\n\nanalysis of all of the circumstances concerning the stop and the unrelated\n\nquestions.” (quotation omitted)).\n\n But the Supreme Court rejected the overall reasonableness standard in\n\nRodriguez. In that case, the Government argued that it is acceptable to\n\n“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is\n\ndiligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,\n\n135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).\n\nThe Court disagreed, noting that the Government’s position would effectively\n\ngrant officers “bonus time to pursue an unrelated criminal investigation” if they\n\ncomplete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.\n\nInstead, courts must look at what an officer actually does: if he “can complete\n\ntraffic-based inquiries expeditiously, then that is the amount of ‘time reasonably\n\nrequired to complete [the stop’s] mission.’” Id. (alteration in original) (quoting\n\nCaballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged\n\nbeyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can\n\nbe unlawfully prolonged even if done expeditiously.\n\n The Supreme Court also rejected the reasoning from Griffin. In Griffin, an\n\nofficer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.\n\nDuring the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why\n\ndo you have batteries?” Id. These questions were “unrelated to the attempted theft\n\n 19\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 20 of 32\n\n\nor the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,\n\nid. at 1362. We offered two reasons for finding that the stop was not unlawfully\n\nprolonged. Id. First, the officer “acted diligently.” Id. But as explained above,\n\ndiligence does not provide an officer with cover to slip in a few unrelated\n\nquestions. Second, the officer “had not yet completed his investigation.” Id. The\n\nRodriguez Court rebuffed this argument as well: the “critical question . . . is not\n\nwhether the [unrelated inquiry] occurs before or after the officer issues the\n\nticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds\n\ntime to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can\n\nprolong a stop before or after completing the investigation.\n\n Neither can Griffin be distinguished because of the time difference.\n\nAlthough the unrelated questions in Griffin prolonged the stop by about 30\n\nseconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the\n\nstop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court\n\nwas clear that the length of time is immaterial. The Court rejected the Eighth\n\nCircuit’s de minimis rule, under which minor extensions of seizures were tolerated.\n\nSee id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay\n\nis less serious than a seven minute delay would revive a standard—be it\n\ncharacterized as a de minimis rule or as overall reasonableness—that the Supreme\n\nCourt specifically rejected.\n\n 20\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 21 of 32\n\n\n Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we\n\nfind that Rodriguez abrogates Griffin.\n\n Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for\n\nexample, that the officer unlawfully prolonged the stop by taking a few seconds to\n\nretrieve his coat or by looking Campbell in the eye while they conversed rather\n\nthan exclusively focusing on writing the ticket. But Rodriguez does not prohibit all\n\nconduct that in any way slows the officer from completing the stop as fast as\n\nhumanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.\n\nat 1616 (“On-scene investigation into other crimes . . . detours from that\n\nmission.”). The problem with the dog sniff was that it was “a measure aimed at\n\ndetecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation\n\nomitted). And efforts to “detect crime in general or drug trafficking in particular”\n\nare “different in kind” from interests in highway and officer safety. Id. at 1616.\n\n We think the proper standard emanating from Rodriguez is this: a stop is\n\nunlawfully prolonged when an officer, without reasonable suspicion, diverts from\n\n\n\n 14\n Of course, the officer could be so slow as to warrant a claim that the officer was not\ndiligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”\nRodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line\ntime limit on how long a stop can last before it becomes an unreasonable seizure. See United\nStates v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an\ninvestigative stop continues indefinitely, at some point it can no longer be justified as an\ninvestigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also\nPlace, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for\na permissible Terry stop[.]”).\n 21\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 22 of 32\n\n\nthe stop’s purpose and adds time to the stop in order to investigate other crimes.\n\nSee id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully\n\nprolong, the officer must (1) conduct an unrelated inquiry aimed at investigating\n\nother crimes (2) that adds time to the stop (3) without reasonable suspicion.\n\n Most circuits that have addressed Rodriguez have reached a similar\n\nconclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)\n\n(suggesting that 75 seconds used to call for backup might unlawfully prolong the\n\nstop, but the record was inadequate to determine if the officer’s purpose was for\n\nsafety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,\n\n902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated\n\nquestioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th\n\nCir. 2018) (finding that officer did not have consent or reasonable suspicion to\n\nquestion passenger after mission completed); United States v. Gomez, 877 F.3d 76,\n\n88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether\n\nthe unrelated inquiry adds time to the stop at all, and finding that asking a few\n\nquestions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,\n\n715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United\n\nStates v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated\n\nquestions violated the standard which says an officer can ask such questions only if\n\nthey do not extend the duration of the stop). But see United States v. Collazo, 818\n\n 22\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 23 of 32\n\n\nF.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall\n\nreasonableness standard).\n\n With this understanding of Rodriguez, we address the case at hand. On\n\nappeal, Campbell points to several actions that he maintains prolonged the stop.\n\nFirst, he identifies the numerous questions McCannon asked about his travel plans.\n\nMcCannon spent approximately two minutes asking Campbell where he was going\n\nand why. We find that these questions were related to the purpose of the stop.\n\n Generally, questions about travel plans are ordinary inquiries incident to a\n\ntraffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur\n\ncase law allows an officer carrying out a routine traffic stop . . . to inquire into the\n\ndriver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,\n\n660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation\n\ninclude “inquiring about the occupants’ destination, route, and purpose”); United\n\nStates v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may\n\nalso ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);\n\nUnited States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to\n\na driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United\n\nStates v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly\n\nheld (as have other circuits) that questions relating to a driver’s travel plans\n\nordinarily fall within the scope of a traffic stop.”).\n\n 23\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 24 of 32\n\n\n More specifically, in this case, Campbell’s travel plans were relevant to the\n\ntraffic violation—a malfunctioning turn signal. In McCannon’s experience, a\n\nrapidly blinking turn signal indicates that a bulb is either out or is about to go out.\n\nSince Campbell was traveling for a long distance, the chances that his turn signal\n\nwould stop working while he was driving increased accordingly. For this reason,\n\nasking about Campbell’s travel plans was a related and prudent part of\n\ninvestigating his malfunctioning turn signal. 15\n\n Campbell also argues that the questions about whether he had contraband in\n\nhis car unlawfully prolonged the stop. Just before asking for Campbell’s consent\n\nto search the car, McCannon queried:\n\n “[Do you have] any counterfeit merchandise that you are taking to\n your relatives over there in Augusta? And what I mean by that is‐‐any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or\n anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?”\n\nThese questions were not related to a traffic stop for a malfunctioning turn signal\n\nand allegedly crossing the fog line. These questions were inquiring about “crime\n\nin general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.\n\nThey added 25 seconds to the stop. And the Government does not contend that\n\n\n 15\n Admittedly, McCannon acknowledged that the reason he took such interest in\nCampbell’s destination was because that part of Augusta was a high crime area. But in this area\nof the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116\nS. Ct. at 1774.\n 24\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 25 of 32\n\n\nMcCannon had reasonable suspicion. Consequently, we find that these questions\n\nunlawfully prolonged the stop.\n\n C.\n\n Normally, if an officer unlawfully prolongs a stop, any evidence uncovered\n\nas a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at\n\n2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.\n\nat 2426–27. 16\n\n Davis excepts from the exclusionary rule evidence the police obtain in\n\nsearches conducted “in objectively reasonable reliance on binding appellate\n\nprecedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”\n\nof the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.\n\nCt. at 2426, and suppressing evidence obtained from a search that was lawful when\n\nconducted would “do nothing to deter” police wrongdoing while coming “at a high\n\ncost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.\n\n At the time of Campbell’s arrest, Griffin was our last word on the issue and\n\nthe closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin\n\nheld that an officer’s unrelated questioning lasting no more than 30 seconds did not\n\n\n\n 16\n As an aside, we cannot use the good faith exception to avoid deciding whether there\nwas a constitutional violation. To do so would deny the retroactive effect of constitutional\ncriminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive\napplication of a new rule of substantive Fourth Amendment law raises the question whether a\nsuppression remedy applies; it does not answer that question.”).\n 25\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 26 of 32\n\n\nunconstitutionally prolong the stop because the officer “had not yet completed his\n\ninvestigation . . . and because he acted diligently[.]” Id. at 1362.\n\n The facts here fit squarely within Griffin’s parameters. McCannon lawfully\n\nstopped Campbell to investigate a traffic violation. His unrelated questions lasted\n\n25 seconds. He asked them before he had completed the stop by issuing the\n\nwarning ticket. And the District Court found that McCannon “diligently\n\ninvestigated” the traffic violations and “expeditiously” completed the citations.\n\nWe cannot say the District Court clearly erred in so finding. As such, Griffin\n\ncontrols, and McCannon acted in “objectively reasonable reliance on binding\n\nappellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.\n\n However, the Government did not raise the good faith exception on appeal.\n\nTypically, when an appellee waives or abandons an affirmative defense, we will\n\nnot consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,\n\n1318–19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional\n\nlimitation, and we can reach a waived issue in “exceptional circumstances” at our\n\ndiscretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th\n\nCir. 1984). Here, even though the Government did not present the issue on appeal,\n\nboth parties submitted briefs on whether the good faith exception applied to the\n\nDistrict Court. Furthermore, the applicability of the exception to this case is\n\nplain—Griffin is on all fours with this case—and ignoring it would be a\n\n 26\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 27 of 32\n\n\nmiscarriage of justice. The exclusionary rule is meant to deter unlawful conduct\n\nby the police; punishing law enforcement for following the law at the time does not\n\ndo this. If we ignored the good faith exception, we would be suppressing the truth\n\nto no end other than teaching the Government’s counsel a well-deserved lesson.\n\nWe decline to do so.\n\n III.\n\n Deputy McCannon had reasonable suspicion to stop Campbell for a traffic\n\nviolation. He unlawfully prolonged the stop when he asked unrelated questions\n\nwithout reasonable suspicion about whether Campbell was trafficking contraband.\n\nBecause these questions were permitted under binding precedent at the time,\n\nhowever, the good faith exception applies and we decline to invoke the\n\nexclusionary rule. Thus, there is no need to consider whether Campbell’s consent\n\npurged the taint from the unlawfully prolonged seizure.17 Nor do we reach the\n\nquestion of whether the consent issue was waived.\n\n AFFIRMED.\n\n\n\n\n 17\n When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any\nsubsequent discovery of evidence produced by that seizure would normally be tainted. However,\nif the defendant consents to the search after the stop is unlawfully prolonged but before the\nevidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d\n662, 676 (11th Cir. 2000). To do this, the government must show (1) that the consent is\nvoluntary and (2) that the consent is not a product of the illegal seizure. United States v.\nDelancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is\nadmissible under the good faith exception, we are spared from pursuing this analysis.\n 27\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 28 of 32\n[END_CASE]", "role": "user" } ]
4,581,007	Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.	Mark A. Saccullo v. United States	2019-01-11	17-14546	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Marcus, Newsom, Anderson", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14546\n ________________________\n\n D.C. Docket No. 8:16-cv-00410-CEH-TBM\n\n\nMARK A. SACCULLO,\nas Successor Trustee of the Anthony L.\nSaccullo Irrevocable Trust for the benefit\nof Mark A. Saccullo,\n\n Plaintiff-Counter Defendant-Appellant,\n\nDOROTHY A. SACCULLO,\n\n Counter Defendant-Appellant,\n\nTAX COLLECTOR OF CHARLOTTE\nCOUNTY, FLORIDA,\n\n Counter Defendant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Defendant-Counter Claimant-Appellee.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n (January 11, 2019)\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 2 of 15\n\n\nBefore MARCUS, NEWSOM, and ANDERSON, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n One relic of the English legal tradition holds that, as a general matter, the\n\nsovereign (here, the United States) is not bound by statutes of limitation or subject\n\nto laches. The question before us is how this vestigial rule—nullum tempus\n\noccurrit regi, or, as the parties here call it, the “Summerlin” principle, after United\n\nStates v. Summerlin, 310 U.S. 414, 416 (1940)—interacts with a Florida law\n\ndesigned to correct technical flaws in property-conveyance deeds.\n\n At issue in this case is whether Fla. Stat. § 95.231, which operates to cure\n\ncertain defective deeds after the passage of five years, applies to a parcel on which\n\nthe United States has asserted a federal estate-tax lien. Here’s the (very) short\n\nstory: In 1998, the appellant’s aging father executed a deed conveying property to\n\na trust created for the appellant’s benefit—but unfortunately, failed to procure a\n\nsecond witness, as Florida law requires. Following the appellant’s father’s death in\n\n2005, the United States assessed an estate tax on the property—which it said\n\nremained in the estate despite the attempted conveyance—and, when the tax\n\nremained unpaid, imposed a series of liens. The question here is whether\n\nSummerlin forestalls enforcement of § 95.231’s five-year-cure provision to defeat\n\nthe United States’ estate-tax claim. We hold that it does not. Section 95.231 cured\n\nthe deed in question, thereby effectuating the intended conveyance and transferring\n\n\n 2\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 3 of 15\n\n\nthe property out of the father’s estate, well before the United States’ claim could\n\nhave vested. The Florida statute, therefore, didn’t cut off a preexisting claim in a\n\nway that might offend Summerlin; rather, it simply—and validly—prevented that\n\nclaim from coming into being in the first place.\n\n I\n\n A\n\n Mark Saccullo has lived on the property at issue here, the site of his\n\nchildhood home, since 1991. In 1998, Mark’s father Anthony, who owned what\n\nwe’ll call “the Property” in fee simple, executed a deed that purported to convey it\n\nto the “Anthony L. Saccullo Irrevocable Trust for the benefit of Mark A.\n\nSaccullo.” For the most part, the deed conformed to the necessary formalities, and\n\nit was properly notarized and recorded in December 1998. There was just one\n\nglitch: the deed bore the signature of only one witness, not the two required by Fla.\n\nStat. § 689.01. That failure effectively negated the conveyance—at least for the\n\ntime being, but more on that later—and despite the deed, Anthony retained title to\n\nthe Property.\n\n When Anthony died in December 2005, Mark became the trustee of his\n\nfather’s irrevocable trust. Mark filed an estate-tax return and—mistakenly it now\n\nseems—included the Property among the estate’s assets. In 2007, the IRS assessed\n\nan estate tax of almost $1.4 million, apparently under the impression that the estate\n\n\n 3\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 4 of 15\n\n\nstill owned the Property. Shortly thereafter, Mark, acting in his capacity as trustee,\n\nconveyed the Property via quitclaim deed to himself and his wife.\n\n Because the estate-tax liability remained delinquent, the government filed\n\ntwo tax-lien notices with Charlotte County, Florida—one against the estate in\n\n2012, and another against the Property in 2015. The IRS later administratively\n\nseized the Property and unsuccessfully sought to sell it, as the estate-tax liability\n\nincreased to $1.6 million.\n\n B\n\n After the administrative seizure, Mark filed a quiet-title action in the United\n\nStates District Court for the Middle District of Florida, contending that the liens\n\ndidn’t cover the Property because it was (in fact) not part of his father’s estate\n\nwhen he died.1 The government counterclaimed, seeking to foreclose on its liens.\n\n The government subsequently moved for summary judgment on its\n\ncounterclaim arguing, as relevant here, that the Property remained in Anthony’s\n\nestate, and was thus “subject to [the government’s] tax lien” because, as explained\n\nabove, “the 1998 deed was not properly witnessed.” 2 In opposing the\n\n\n\n\n1\n Federal question jurisdiction arises under 28 U.S.C. § 2410, which provides that district courts\nmay hear quiet-title actions concerning property on which the United States has a lien.\n2\n The government also argued that the deed was void because it failed to properly identify a\ngrantee. The district court rejected that argument, and the government does not repeat it here.\n\n 4\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 5 of 15\n\n\ngovernment’s motion, Mark relied on Fla. Stat. § 95.231, which, in relevant part,\n\nstates that\n\n [f]ive years after the recording of an instrument required to be\n executed in accordance with s. 689.01 . . . from which it appears that\n the person owning the property attempted to convey [the property],\n . . . the instrument . . . shall be held to have its purported effect to\n convey [the property] . . . as if there had been no lack of . . . witness or\n witnesses . . . in the absence of fraud, adverse possession, or pending\n litigation.\n\nFla. Stat. § 95.231(1). By dint of that provision, Mark said, “the deed would have\n\nhad any defects cured . . . by operation of law” in December 2003, five years after\n\nthe deed’s initial recording.\n\n The district court granted the government’s summary-judgment motion,\n\nholding that despite § 95.231(1) the Property remained in the estate and that the\n\nIRS could therefore foreclose on its liens. First, the court concluded that\n\n§ 95.231(1) did not create good title in the trust because the deed’s missing second\n\nwitness was not among the technical defects that the statute operates to cure.\n\nSecond, and in any event, the court held that § 95.231(1) is essentially a statute of\n\nlimitations, which, under Summerlin, does not bind the United States.\n\nAccordingly, the district court ordered foreclosure and sale of the Property and\n\nrequired Mark to vacate within 30 days.\n\n\n\n\n 5\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 6 of 15\n\n\n This appeal followed.3 Although we initially denied Mark’s motion to stay\n\nthe order of sale pending our review, we later granted his renewed stay motion and\n\ndirected the parties to submit supplemental briefing on the question whether Fla.\n\nStat. § 95.231 “is an ordinary statute of limitations that should be subject to the\n\nrule set forth in United States v. Summerlin, 310 U.S. 414 (1940).”\n\n II\n\n Before diving too deeply into Summerlin, we need to establish a state-law\n\nbaseline: As a matter of Florida property law, who owned what, and when? To\n\nanswer that question, we look first to the text of § 95.231. Again, in relevant part,\n\nthat statute provides that, absent exceptions that don’t apply here, “[f]ive years\n\nafter the recording of an instrument required to be executed in accordance with s.\n\n689.01 . . . from which it appears that the person owning the property attempted to\n\nconvey [the property], . . . the instrument . . . shall be held to have its purported\n\neffect to convey [the property] . . . as if there had been no lack of . . . witness or\n\nwitnesses.” Fla. Stat. § 95.231(1). The statute goes on, in a separate section, to\n\nstate that “no person shall assert any claim to the property against the claimants\n\nunder the deed or will or their successors in title” after 20 years. Id. § 95.231(2).\n\n\n\n\n3\n Because this appeal comes to us on summary judgment, we review the district court’s decision\nde novo. United States v. Spoor Tr. Of Louise Paxton Gallagher Revocable Tr., 838 F.3d 1197,\n1201 (11th Cir. 2016).\n\n 6\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 7 of 15\n\n\n Section 95.231’s second clause—which cuts off claims after 20 years—\n\nplainly falls within Summerlin’s ambit, as it is “clearly a limitations statute.” Earp\n\n& Shriver, Inc. v. Earp, 466 So. 2d 1225, 1227 (Fla. 2d Dist. Ct. App. 1985). But\n\nthis case isn’t about the second clause—we are, after all, just now passing the 20-\n\nyear mark following the 1998 deed’s initial recording. Rather, this case turns on\n\nthe statute’s first clause, which, when read in conjunction with the second, makes\n\nclear that § 95.231 “is not a traditional statute of limitation but is a curative act\n\nwith a limitation provision.” Holland v. Hattaway, 438 So. 2d 456, 461 (Fla. 5th\n\nDist. Ct. App. 1983). The question we must answer is whether Summerlin\n\nnonetheless applies.\n\n A\n\n First, a threshold issue: Setting aside the United States’ involvement—and\n\nfor the moment, Summerlin—is the witness-related defect here the kind of\n\ntechnicality that § 95.231(1) operates to rectify? The district court held that it\n\nisn’t. The court reasoned that the statute “cannot be used to create title where none\n\nexisted” and that the absence of the prescribed number of witnesses rendered the\n\ndeed statutorily incurable.\n\n That is incorrect, as both parties agree. In its brief to us, the government\n\nconcedes that “the absence of a required witness signature” did not “invalidate[]\n\nthe 1998 deed beyond the reach of [the] statute.” Section 95.231(1) expressly\n\n\n 7\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 8 of 15\n\n\nstates that after the requisite five-year period a recorded deed “shall be held to have\n\nits purported effect” despite the “lack of . . . witness or witnesses.” Thus, at least\n\nin the ordinary case, a missing witness is precisely the kind of defect that the\n\nstatute was designed to cure.\n\n B\n\n The parties’ agreement ends there. They diverge over § 95.231(1)’s\n\noperation—in particular when, and how, the statute cures defective deeds. The\n\ndispute here turns on § 95.231(1)’s statement that an otherwise-defective deed\n\n“shall be held to have its purported effect” five years after it is recorded—and, in\n\nparticular, how to understand the phrase “shall be held.” Fla. Stat. § 95.231(1).\n\nMark contends that the statute’s curative properties are automatic and self-\n\nexecuting—and, therefore, that the once-defective 1998 deed was rendered “valid\n\nby operation of state law in 2003,” five years after the deed was originally\n\nrecorded. The government, in contrast, asserts that under § 95.231(1)’s language a\n\nvalid cure requires some form of formal adjudication—either judicial or\n\nadministrative—before marketable title transfers. As the government put the\n\nmatter at oral argument, the term “‘held’ requires a holding.” Oral Argument at\n\n13:23.\n\n Both readings are plausible. It’s true, as the government asserts, that the\n\n“shall be held” language could be understood to supply a rule of decision for an\n\n\n 8\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 9 of 15\n\n\nadjudicative proceeding, such that the phrase indeed “requires a holding.”\n\nAccording to one dictionary definition, for instance, “hold” means “to decide in a\n\njudicial ruling,” as in “the court held that the man was sane.” Webster’s Third New\n\nInternational Dictionary 1078 (2002). But the word “held” is not only, or even\n\nprincipally, court jargon. “[S]hall be held” could just as sensibly be construed to\n\nmean something like “shall be considered”—to take just one fairly prominent\n\nexample, “We hold these truths to be self-evident . . . .” And indeed, the same\n\ndictionary that supplies a court-related definition also—and in fact beforehand—\n\ndefines “hold” to mean “consider, regard, think, judge”—as in “held by many to be\n\nthe greatest contemporary tennis player.” Id. See also, e.g., Oxford English\n\nDictionary Online, http://www.oed.com (Dec. 28, 2018) (in relevant part, defining\n\n“hold” to mean, first, “[t]o accept and entertain as true [or] to believe” or “[t]o\n\nthink, consider, esteem, regard as,” and, alternatively, to mean “[o]f a judge or\n\ncourt: [t]o state as an authoritative opinion [or] to law down as a point of law [or]\n\ndecide”).\n\n Happily, it’s not up to us to pick and choose between these competing\n\nconstructions of § 95.231(1). We are bound by the Florida courts’ interpretation of\n\nFlorida law, see, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and although\n\nthe Florida Supreme Court hasn’t squarely addressed the specific question before\n\nus, the clear weight of Florida authority favors the held-as-“considered” reading.\n\n\n 9\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 10 of 15\n\n\nEarp & Shriver v. Earp, for instance, involved an appeal from a judgment\n\n“declaring void a deed for”—as here—“lack of subscribing witnesses.” 466 So. 2d\n\nat 1226. The Second DCA reversed, holding—without qualification or intimation\n\nthat anything further was required—that “[a]fter the requisite passage of time, the\n\nstatute cured the deficiency in subscribing witnesses.” Id. at 1227. Glanville v.\n\nGlanville, 856 So. 2d 1045 (Fla. 5th Dist. Ct. App. 2003), is to the same effect.\n\nThere, when a grantor sought to invalidate a deed on the ground that it was not\n\nproperly witnessed and acknowledged, the grantee raised § 95.231(1) as an\n\naffirmative defense. Citing Earp with approval, the Fifth DCA held that “the\n\nstatute bar[red] the claim” because the suit “was filed more than five years after the\n\ndeed was recorded.” Id. at 1047. Taken together, these cases show that, after five\n\nyears, the statute not only shields a once-defective deed from judicial attack, but\n\nalso—of its own force—affirmatively mends it back to health.\n\n We hold, then, that Mark didn’t have to go to court to enforce § 95.231(1)’s\n\ncurative provision. Instead, the deed was “held”—as in considered—“to have its\n\npurported effect” by operation of law in December 2003, five years after it was\n\ninitially recorded.\n\n III\n\n So where does that leave us vis-à-vis Summerlin? Under Summerlin,\n\n“[w]hen the United States becomes entitled to a claim, acting in its governmental\n\n\n 10\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 11 of 15\n\n\ncapacity and asserts its claim in that right, it cannot be deemed to have abdicated\n\nits governmental authority so as to become subject to a state statute putting a time\n\nlimit upon enforcement.” Summerlin, 310 U.S. at 417. Put slightly differently,\n\nwhen a statute of limitations “invalidate[s a] claim of the United States, so that it\n\ncannot be enforced at all,” the time bar—as against the government, anyway—is\n\nunenforceable. Id. In the sections that follow, we first review the doctrine and\n\nunderlying policy of the Summerlin rule, and then determine whether the rule\n\napplies in this case.\n\n A\n\n As noted at the outset, the so-called Summerlin rule dates to well before the\n\nSummerlin decision itself. Riding circuit in an early case, Justice Joseph Story\n\ninvoked the rule and, for support, cited English cases and commentaries stretching\n\nback to the 1200s. See United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass.\n\n1821). The “centuries”-old nullum tempus principle, he observed, sprang from the\n\nconcern that the “king is always busied for the public good, and, therefore, has not\n\nleisure to assert his right within the times limited to subjects.” Id. So too in the\n\nyoung Republic, Story continued, there was a “great public policy of preserving\n\nthe public rights, revenues, and property from injury and loss, by the negligence of\n\npublic officers.” Id. The Supreme Court later agreed, acknowledging that nullum\n\ntempus survived the Revolution and the founding and inured to the United States as\n\n\n 11\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 12 of 15\n\n\nan “incident[] of . . . sovereignty.” United States v. Thompson, 98 U.S. 486, 489\n\n(1878).\n\n Over time, courts have made clear that nullum tempus provides a hedge\n\nagainst, well, bad government. In particular, the rule is founded on the concern\n\nthat the public suffers when the government sleeps on its rights. See United States\n\nv. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (“This principle protects public\n\nrights vested in the government for the benefit of all from the inadvertence of the\n\nagents upon which the government must necessarily rely.”) (quotations omitted).\n\nThus, whereas individual citizens can be penalized for inattentiveness in enforcing\n\ntheir rights, the United States cannot be. See, e.g., Guaranty Trust Co. of N.Y. v.\n\nUnited States, 304 U.S. 126, 132 (1938) (“Regardless of the form of government\n\nand independently of the royal prerogative once thought sufficient to justify it, the\n\nrule is supportable now because its benefit and advantage extend to every citizen,\n\nincluding the defendant, whose plea of laches or limitation it precludes.”).\n\n Importantly here, the Summerlin principle has its limits. In Guaranty Trust,\n\nfor example, the Supreme Court held that the nullum tempus rule is inapplicable\n\nwhere the United States has not “acquired a right free of a pre-existing infirmity.”\n\n304 U.S. at 142 (citing United States v. Buford, 28 U.S. 12, 29 (1830)). There, for\n\ninstance, because the relevant limitations period had expired before the United\n\nStates acquired the claim it sought to enforce, nullum tempus did not apply. See\n\n\n 12\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 13 of 15\n\n\nid.; see also United States v. California, 507 U.S. 746, 757–58 (1993) (applying\n\nsimilar logic in a subrogation claim and holding that “Summerlin is clearly\n\ndistinguishable”). As the Ninth Circuit nicely summarized matters in Bresson v.\n\nCommissioner, “[t]aken together, Summerlin and Guaranty Trust suggest two\n\ncountervailing principles.” 213 F.3d 1173, 1176 (9th Cir. 2000). “On the one\n\nhand,” the court explained, “if the United States comes into possession of a valid\n\nclaim, that claim cannot be ‘cut off’ later by a state statute of limitations.” Id. But\n\n“[o]n the other hand, if a claim already has become infirm (for example, when a\n\nlimitations period expires) by the time the United States acquires the purported\n\nright, the rule of Summerlin will not operate to revive the claim.” Id. In short, the\n\nSummerlin principle can’t create rights that do not otherwise exist.\n\n B\n\n What, then, of this case? Does Summerlin forestall the operation of\n\n§ 95.231(1) or not? Because, following Florida’s lead, we have held that the\n\nstatute is self-executing, the question admits of an easy answer. We hold that\n\nSummerlin is inapplicable here because, by operation of § 95.231(1), the Property\n\ndropped out of the estate in December 2003, five years after the deed was\n\noriginally recorded—and, importantly, roughly two years before Anthony died,\n\nand thus before any claim asserted by the United States could have accrued.\n\n\n\n\n 13\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 14 of 15\n\n\n As already explained, the Summerlin principle applies only “[w]hen the\n\nUnited States becomes entitled to a claim.” Summerlin, 310 U.S. at 417. If a valid\n\nclaim never materializes—or, as in Guaranty Trust, comes with a “pre-existing\n\ninfirmity”—then Summerlin doesn’t come into play. 304 U.S. at 142. Just so here.\n\nThe United States’ claim to Anthony’s estate accrued, at the earliest, when he died\n\nin December 2005. But by operation of § 95.231(1), Mark had acquired good title\n\nto the Property two years earlier, in December 2003—five years after the defective\n\ndeed was recorded. Accordingly, we do not have here “a situation in which a valid\n\ncause of action had accrued to the United States only to perish later through the\n\npassage of time.” Bresson, 213 F.3d at 1178. Rather, § 95.231(1) prevented the\n\nProperty from becoming part of the United States’ “claim” in the first place.\n\n Not only is this case not within the letter of the Summerlin rule, it is not\n\nwithin its spirit, either. This isn’t a situation in which the United States missed out\n\non a claim because some government employee was asleep at the switch and\n\nnegligently let a clock run out. Because Mark’s father didn’t die until 2005, no\n\namount of diligence on the part of the IRS could have made it possible for the\n\ngovernment to acquire a valid estate-tax claim before the deed was statutorily\n\ncured in 2003. As in Guaranty Trust, “the circumstances of the present case admit\n\nof no appeal” to Summerlin’s policy underpinnings, because “[t]here has been no\n\n\n\n\n 14\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 15 of 15\n\n\nneglect or delay by the United States or its agents, and it has lost no rights by any\n\nlapse of time.” 304 U.S. at 141.\n\n IV\n\n In sum, we hold that Fla. Stat. § 95.231(1) cured the deed by operation of\n\nlaw in December 2003, that the Property was at that point validly transferred to the\n\ntrust, and that Summerlin is inapplicable here because by the time the United States\n\nasserted its tax lien the Property no longer remained in the estate. We therefore\n\nreverse the district court’s entry of summary judgment on the United States’\n\nforeclosure claim as to the Property and remand for further proceedings consistent\n\nwith this opinion.\n\n REVERSED AND REMANDED.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358260/", "author_raw": "NEWSOM, Circuit Judge:"}]}	MARCUS	NEWSOM	ANDERSON	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581007/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14546\n ________________________\n\n D.C. Docket No. 8:16-cv-00410-CEH-TBM\n\n\nMARK A. SACCULLO,\nas Successor Trustee of the Anthony L.\nSaccullo Irrevocable Trust for the benefit\nof Mark A. Saccullo,\n\n Plaintiff-Counter Defendant-Appellant,\n\nDOROTHY A. SACCULLO,\n\n Counter Defendant-Appellant,\n\nTAX COLLECTOR OF CHARLOTTE\nCOUNTY, FLORIDA,\n\n Counter Defendant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Defendant-Counter Claimant-Appellee.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n (January 11, 2019)\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 2 of 15\n\n\nBefore MARCUS, NEWSOM, and ANDERSON, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n One relic of the English legal tradition holds that, as a general matter, the\n\nsovereign (here, the United States) is not bound by statutes of limitation or subject\n\nto laches. The question before us is how this vestigial rule—nullum tempus\n\noccurrit regi, or, as the parties here call it, the “Summerlin” principle, after United\n\nStates v. Summerlin, 310 U.S. 414, 416 (1940)—interacts with a Florida law\n\ndesigned to correct technical flaws in property-conveyance deeds.\n\n At issue in this case is whether Fla. Stat. § 95.231, which operates to cure\n\ncertain defective deeds after the passage of five years, applies to a parcel on which\n\nthe United States has asserted a federal estate-tax lien. Here’s the (very) short\n\nstory: In 1998, the appellant’s aging father executed a deed conveying property to\n\na trust created for the appellant’s benefit—but unfortunately, failed to procure a\n\nsecond witness, as Florida law requires. Following the appellant’s father’s death in\n\n2005, the United States assessed an estate tax on the property—which it said\n\nremained in the estate despite the attempted conveyance—and, when the tax\n\nremained unpaid, imposed a series of liens. The question here is whether\n\nSummerlin forestalls enforcement of § 95.231’s five-year-cure provision to defeat\n\nthe United States’ estate-tax claim. We hold that it does not. Section 95.231 cured\n\nthe deed in question, thereby effectuating the intended conveyance and transferring\n\n\n 2\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 3 of 15\n\n\nthe property out of the father’s estate, well before the United States’ claim could\n\nhave vested. The Florida statute, therefore, didn’t cut off a preexisting claim in a\n\nway that might offend Summerlin; rather, it simply—and validly—prevented that\n\nclaim from coming into being in the first place.\n\n I\n\n A\n\n Mark Saccullo has lived on the property at issue here, the site of his\n\nchildhood home, since 1991. In 1998, Mark’s father Anthony, who owned what\n\nwe’ll call “the Property” in fee simple, executed a deed that purported to convey it\n\nto the “Anthony L. Saccullo Irrevocable Trust for the benefit of Mark A.\n\nSaccullo.” For the most part, the deed conformed to the necessary formalities, and\n\nit was properly notarized and recorded in December 1998. There was just one\n\nglitch: the deed bore the signature of only one witness, not the two required by Fla.\n\nStat. § 689.01. That failure effectively negated the conveyance—at least for the\n\ntime being, but more on that later—and despite the deed, Anthony retained title to\n\nthe Property.\n\n When Anthony died in December 2005, Mark became the trustee of his\n\nfather’s irrevocable trust. Mark filed an estate-tax return and—mistakenly it now\n\nseems—included the Property among the estate’s assets. In 2007, the IRS assessed\n\nan estate tax of almost $1.4 million, apparently under the impression that the estate\n\n\n 3\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 4 of 15\n\n\nstill owned the Property. Shortly thereafter, Mark, acting in his capacity as trustee,\n\nconveyed the Property via quitclaim deed to himself and his wife.\n\n Because the estate-tax liability remained delinquent, the government filed\n\ntwo tax-lien notices with Charlotte County, Florida—one against the estate in\n\n2012, and another against the Property in 2015. The IRS later administratively\n\nseized the Property and unsuccessfully sought to sell it, as the estate-tax liability\n\nincreased to $1.6 million.\n\n B\n\n After the administrative seizure, Mark filed a quiet-title action in the United\n\nStates District Court for the Middle District of Florida, contending that the liens\n\ndidn’t cover the Property because it was (in fact) not part of his father’s estate\n\nwhen he died.1 The government counterclaimed, seeking to foreclose on its liens.\n\n The government subsequently moved for summary judgment on its\n\ncounterclaim arguing, as relevant here, that the Property remained in Anthony’s\n\nestate, and was thus “subject to [the government’s] tax lien” because, as explained\n\nabove, “the 1998 deed was not properly witnessed.” 2 In opposing the\n\n\n\n\n1\n Federal question jurisdiction arises under 28 U.S.C. § 2410, which provides that district courts\nmay hear quiet-title actions concerning property on which the United States has a lien.\n2\n The government also argued that the deed was void because it failed to properly identify a\ngrantee. The district court rejected that argument, and the government does not repeat it here.\n\n 4\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 5 of 15\n\n\ngovernment’s motion, Mark relied on Fla. Stat. § 95.231, which, in relevant part,\n\nstates that\n\n [f]ive years after the recording of an instrument required to be\n executed in accordance with s. 689.01 . . . from which it appears that\n the person owning the property attempted to convey [the property],\n . . . the instrument . . . shall be held to have its purported effect to\n convey [the property] . . . as if there had been no lack of . . . witness or\n witnesses . . . in the absence of fraud, adverse possession, or pending\n litigation.\n\nFla. Stat. § 95.231(1). By dint of that provision, Mark said, “the deed would have\n\nhad any defects cured . . . by operation of law” in December 2003, five years after\n\nthe deed’s initial recording.\n\n The district court granted the government’s summary-judgment motion,\n\nholding that despite § 95.231(1) the Property remained in the estate and that the\n\nIRS could therefore foreclose on its liens. First, the court concluded that\n\n§ 95.231(1) did not create good title in the trust because the deed’s missing second\n\nwitness was not among the technical defects that the statute operates to cure.\n\nSecond, and in any event, the court held that § 95.231(1) is essentially a statute of\n\nlimitations, which, under Summerlin, does not bind the United States.\n\nAccordingly, the district court ordered foreclosure and sale of the Property and\n\nrequired Mark to vacate within 30 days.\n\n\n\n\n 5\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 6 of 15\n\n\n This appeal followed.3 Although we initially denied Mark’s motion to stay\n\nthe order of sale pending our review, we later granted his renewed stay motion and\n\ndirected the parties to submit supplemental briefing on the question whether Fla.\n\nStat. § 95.231 “is an ordinary statute of limitations that should be subject to the\n\nrule set forth in United States v. Summerlin, 310 U.S. 414 (1940).”\n\n II\n\n Before diving too deeply into Summerlin, we need to establish a state-law\n\nbaseline: As a matter of Florida property law, who owned what, and when? To\n\nanswer that question, we look first to the text of § 95.231. Again, in relevant part,\n\nthat statute provides that, absent exceptions that don’t apply here, “[f]ive years\n\nafter the recording of an instrument required to be executed in accordance with s.\n\n689.01 . . . from which it appears that the person owning the property attempted to\n\nconvey [the property], . . . the instrument . . . shall be held to have its purported\n\neffect to convey [the property] . . . as if there had been no lack of . . . witness or\n\nwitnesses.” Fla. Stat. § 95.231(1). The statute goes on, in a separate section, to\n\nstate that “no person shall assert any claim to the property against the claimants\n\nunder the deed or will or their successors in title” after 20 years. Id. § 95.231(2).\n\n\n\n\n3\n Because this appeal comes to us on summary judgment, we review the district court’s decision\nde novo. United States v. Spoor Tr. Of Louise Paxton Gallagher Revocable Tr., 838 F.3d 1197,\n1201 (11th Cir. 2016).\n\n 6\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 7 of 15\n\n\n Section 95.231’s second clause—which cuts off claims after 20 years—\n\nplainly falls within Summerlin’s ambit, as it is “clearly a limitations statute.” Earp\n\n& Shriver, Inc. v. Earp, 466 So. 2d 1225, 1227 (Fla. 2d Dist. Ct. App. 1985). But\n\nthis case isn’t about the second clause—we are, after all, just now passing the 20-\n\nyear mark following the 1998 deed’s initial recording. Rather, this case turns on\n\nthe statute’s first clause, which, when read in conjunction with the second, makes\n\nclear that § 95.231 “is not a traditional statute of limitation but is a curative act\n\nwith a limitation provision.” Holland v. Hattaway, 438 So. 2d 456, 461 (Fla. 5th\n\nDist. Ct. App. 1983). The question we must answer is whether Summerlin\n\nnonetheless applies.\n\n A\n\n First, a threshold issue: Setting aside the United States’ involvement—and\n\nfor the moment, Summerlin—is the witness-related defect here the kind of\n\ntechnicality that § 95.231(1) operates to rectify? The district court held that it\n\nisn’t. The court reasoned that the statute “cannot be used to create title where none\n\nexisted” and that the absence of the prescribed number of witnesses rendered the\n\ndeed statutorily incurable.\n\n That is incorrect, as both parties agree. In its brief to us, the government\n\nconcedes that “the absence of a required witness signature” did not “invalidate[]\n\nthe 1998 deed beyond the reach of [the] statute.” Section 95.231(1) expressly\n\n\n 7\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 8 of 15\n\n\nstates that after the requisite five-year period a recorded deed “shall be held to have\n\nits purported effect” despite the “lack of . . . witness or witnesses.” Thus, at least\n\nin the ordinary case, a missing witness is precisely the kind of defect that the\n\nstatute was designed to cure.\n\n B\n\n The parties’ agreement ends there. They diverge over § 95.231(1)’s\n\noperation—in particular when, and how, the statute cures defective deeds. The\n\ndispute here turns on § 95.231(1)’s statement that an otherwise-defective deed\n\n“shall be held to have its purported effect” five years after it is recorded—and, in\n\nparticular, how to understand the phrase “shall be held.” Fla. Stat. § 95.231(1).\n\nMark contends that the statute’s curative properties are automatic and self-\n\nexecuting—and, therefore, that the once-defective 1998 deed was rendered “valid\n\nby operation of state law in 2003,” five years after the deed was originally\n\nrecorded. The government, in contrast, asserts that under § 95.231(1)’s language a\n\nvalid cure requires some form of formal adjudication—either judicial or\n\nadministrative—before marketable title transfers. As the government put the\n\nmatter at oral argument, the term “‘held’ requires a holding.” Oral Argument at\n\n13:23.\n\n Both readings are plausible. It’s true, as the government asserts, that the\n\n“shall be held” language could be understood to supply a rule of decision for an\n\n\n 8\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 9 of 15\n\n\nadjudicative proceeding, such that the phrase indeed “requires a holding.”\n\nAccording to one dictionary definition, for instance, “hold” means “to decide in a\n\njudicial ruling,” as in “the court held that the man was sane.” Webster’s Third New\n\nInternational Dictionary 1078 (2002). But the word “held” is not only, or even\n\nprincipally, court jargon. “[S]hall be held” could just as sensibly be construed to\n\nmean something like “shall be considered”—to take just one fairly prominent\n\nexample, “We hold these truths to be self-evident . . . .” And indeed, the same\n\ndictionary that supplies a court-related definition also—and in fact beforehand—\n\ndefines “hold” to mean “consider, regard, think, judge”—as in “held by many to be\n\nthe greatest contemporary tennis player.” Id. See also, e.g., Oxford English\n\nDictionary Online, http://www.oed.com (Dec. 28, 2018) (in relevant part, defining\n\n“hold” to mean, first, “[t]o accept and entertain as true [or] to believe” or “[t]o\n\nthink, consider, esteem, regard as,” and, alternatively, to mean “[o]f a judge or\n\ncourt: [t]o state as an authoritative opinion [or] to law down as a point of law [or]\n\ndecide”).\n\n Happily, it’s not up to us to pick and choose between these competing\n\nconstructions of § 95.231(1). We are bound by the Florida courts’ interpretation of\n\nFlorida law, see, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and although\n\nthe Florida Supreme Court hasn’t squarely addressed the specific question before\n\nus, the clear weight of Florida authority favors the held-as-“considered” reading.\n\n\n 9\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 10 of 15\n\n\nEarp & Shriver v. Earp, for instance, involved an appeal from a judgment\n\n“declaring void a deed for”—as here—“lack of subscribing witnesses.” 466 So. 2d\n\nat 1226. The Second DCA reversed, holding—without qualification or intimation\n\nthat anything further was required—that “[a]fter the requisite passage of time, the\n\nstatute cured the deficiency in subscribing witnesses.” Id. at 1227. Glanville v.\n\nGlanville, 856 So. 2d 1045 (Fla. 5th Dist. Ct. App. 2003), is to the same effect.\n\nThere, when a grantor sought to invalidate a deed on the ground that it was not\n\nproperly witnessed and acknowledged, the grantee raised § 95.231(1) as an\n\naffirmative defense. Citing Earp with approval, the Fifth DCA held that “the\n\nstatute bar[red] the claim” because the suit “was filed more than five years after the\n\ndeed was recorded.” Id. at 1047. Taken together, these cases show that, after five\n\nyears, the statute not only shields a once-defective deed from judicial attack, but\n\nalso—of its own force—affirmatively mends it back to health.\n\n We hold, then, that Mark didn’t have to go to court to enforce § 95.231(1)’s\n\ncurative provision. Instead, the deed was “held”—as in considered—“to have its\n\npurported effect” by operation of law in December 2003, five years after it was\n\ninitially recorded.\n\n III\n\n So where does that leave us vis-à-vis Summerlin? Under Summerlin,\n\n“[w]hen the United States becomes entitled to a claim, acting in its governmental\n\n\n 10\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 11 of 15\n\n\ncapacity and asserts its claim in that right, it cannot be deemed to have abdicated\n\nits governmental authority so as to become subject to a state statute putting a time\n\nlimit upon enforcement.” Summerlin, 310 U.S. at 417. Put slightly differently,\n\nwhen a statute of limitations “invalidate[s a] claim of the United States, so that it\n\ncannot be enforced at all,” the time bar—as against the government, anyway—is\n\nunenforceable. Id. In the sections that follow, we first review the doctrine and\n\nunderlying policy of the Summerlin rule, and then determine whether the rule\n\napplies in this case.\n\n A\n\n As noted at the outset, the so-called Summerlin rule dates to well before the\n\nSummerlin decision itself. Riding circuit in an early case, Justice Joseph Story\n\ninvoked the rule and, for support, cited English cases and commentaries stretching\n\nback to the 1200s. See United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass.\n\n1821). The “centuries”-old nullum tempus principle, he observed, sprang from the\n\nconcern that the “king is always busied for the public good, and, therefore, has not\n\nleisure to assert his right within the times limited to subjects.” Id. So too in the\n\nyoung Republic, Story continued, there was a “great public policy of preserving\n\nthe public rights, revenues, and property from injury and loss, by the negligence of\n\npublic officers.” Id. The Supreme Court later agreed, acknowledging that nullum\n\ntempus survived the Revolution and the founding and inured to the United States as\n\n\n 11\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 12 of 15\n\n\nan “incident[] of . . . sovereignty.” United States v. Thompson, 98 U.S. 486, 489\n\n(1878).\n\n Over time, courts have made clear that nullum tempus provides a hedge\n\nagainst, well, bad government. In particular, the rule is founded on the concern\n\nthat the public suffers when the government sleeps on its rights. See United States\n\nv. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (“This principle protects public\n\nrights vested in the government for the benefit of all from the inadvertence of the\n\nagents upon which the government must necessarily rely.”) (quotations omitted).\n\nThus, whereas individual citizens can be penalized for inattentiveness in enforcing\n\ntheir rights, the United States cannot be. See, e.g., Guaranty Trust Co. of N.Y. v.\n\nUnited States, 304 U.S. 126, 132 (1938) (“Regardless of the form of government\n\nand independently of the royal prerogative once thought sufficient to justify it, the\n\nrule is supportable now because its benefit and advantage extend to every citizen,\n\nincluding the defendant, whose plea of laches or limitation it precludes.”).\n\n Importantly here, the Summerlin principle has its limits. In Guaranty Trust,\n\nfor example, the Supreme Court held that the nullum tempus rule is inapplicable\n\nwhere the United States has not “acquired a right free of a pre-existing infirmity.”\n\n304 U.S. at 142 (citing United States v. Buford, 28 U.S. 12, 29 (1830)). There, for\n\ninstance, because the relevant limitations period had expired before the United\n\nStates acquired the claim it sought to enforce, nullum tempus did not apply. See\n\n\n 12\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 13 of 15\n\n\nid.; see also United States v. California, 507 U.S. 746, 757–58 (1993) (applying\n\nsimilar logic in a subrogation claim and holding that “Summerlin is clearly\n\ndistinguishable”). As the Ninth Circuit nicely summarized matters in Bresson v.\n\nCommissioner, “[t]aken together, Summerlin and Guaranty Trust suggest two\n\ncountervailing principles.” 213 F.3d 1173, 1176 (9th Cir. 2000). “On the one\n\nhand,” the court explained, “if the United States comes into possession of a valid\n\nclaim, that claim cannot be ‘cut off’ later by a state statute of limitations.” Id. But\n\n“[o]n the other hand, if a claim already has become infirm (for example, when a\n\nlimitations period expires) by the time the United States acquires the purported\n\nright, the rule of Summerlin will not operate to revive the claim.” Id. In short, the\n\nSummerlin principle can’t create rights that do not otherwise exist.\n\n B\n\n What, then, of this case? Does Summerlin forestall the operation of\n\n§ 95.231(1) or not? Because, following Florida’s lead, we have held that the\n\nstatute is self-executing, the question admits of an easy answer. We hold that\n\nSummerlin is inapplicable here because, by operation of § 95.231(1), the Property\n\ndropped out of the estate in December 2003, five years after the deed was\n\noriginally recorded—and, importantly, roughly two years before Anthony died,\n\nand thus before any claim asserted by the United States could have accrued.\n\n\n\n\n 13\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 14 of 15\n\n\n As already explained, the Summerlin principle applies only “[w]hen the\n\nUnited States becomes entitled to a claim.” Summerlin, 310 U.S. at 417. If a valid\n\nclaim never materializes—or, as in Guaranty Trust, comes with a “pre-existing\n\ninfirmity”—then Summerlin doesn’t come into play. 304 U.S. at 142. Just so here.\n\nThe United States’ claim to Anthony’s estate accrued, at the earliest, when he died\n\nin December 2005. But by operation of § 95.231(1), Mark had acquired good title\n\nto the Property two years earlier, in December 2003—five years after the defective\n\ndeed was recorded. Accordingly, we do not have here “a situation in which a valid\n\ncause of action had accrued to the United States only to perish later through the\n\npassage of time.” Bresson, 213 F.3d at 1178. Rather, § 95.231(1) prevented the\n\nProperty from becoming part of the United States’ “claim” in the first place.\n\n Not only is this case not within the letter of the Summerlin rule, it is not\n\nwithin its spirit, either. This isn’t a situation in which the United States missed out\n\non a claim because some government employee was asleep at the switch and\n\nnegligently let a clock run out. Because Mark’s father didn’t die until 2005, no\n\namount of diligence on the part of the IRS could have made it possible for the\n\ngovernment to acquire a valid estate-tax claim before the deed was statutorily\n\ncured in 2003. As in Guaranty Trust, “the circumstances of the present case admit\n\nof no appeal” to Summerlin’s policy underpinnings, because “[t]here has been no\n\n\n\n\n 14\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 15 of 15\n\n\nneglect or delay by the United States or its agents, and it has lost no rights by any\n\nlapse of time.” 304 U.S. at 141.\n\n IV\n\n In sum, we hold that Fla. Stat. § 95.231(1) cured the deed by operation of\n\nlaw in December 2003, that the Property was at that point validly transferred to the\n\ntrust, and that Summerlin is inapplicable here because by the time the United States\n\nasserted its tax lien the Property no longer remained in the estate. We therefore\n\nreverse the district court’s entry of summary judgment on the United States’\n\nforeclosure claim as to the Property and remand for further proceedings consistent\n\nwith this opinion.\n\n REVERSED AND REMANDED.\n\n\n\n\n 15\n[END_CASE]", "role": "user" } ]
4,581,586	Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee.	Marcelllinus Pfeiffer v. Rachel Bachotet	2019-01-15	18-13918	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Tjoflat, Pryor, Rosenbaum", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-13918\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 1:18-cv-03446-RWS\n\n\n\n\nMARCELLINUS PFEIFFER,\n\n Petitioner-Appellant,\n\nversus\n\nRACHEL BACHOTET,\n\n Respondent- Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n ________________________\n\n (January 15, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.\n\nPER CURIAM:\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 2 of 17\n\n\n This case arises under the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.\n\n89, also publ’d at https://www.hcch.net/en/instruments/conventions/full-\n\ntext/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer,\n\na German citizen, seeks the return of his children N.A.R. and R.H.E. from the\n\nUnited States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French\n\ncitizen who moved with the children from Switzerland to Georgia in June 2018,\n\nopposes the children’s return. Following briefing and two hearings, the district\n\ncourt denied Pfeiffer’s petition. After careful consideration, we now affirm the\n\ndistrict court’s decision for the reasons we explain below.\n\n I.\n\n Pfeiffer and Bachotet were married in France in 2010. Two years later, in\n\n2012, they moved to Switzerland. Pfeiffer and Bachotet have two children:\n\nN.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June\n\n17, 2018, both children had lived continuously in Switzerland since 2012.\n\n In June 2017, Pfeiffer and Bachotet obtained a divorce when the District\n\nCourt of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and\n\nDecree of Divorce (the “Divorce Judgment”). Among other provisions, this\n\nDivorce Judgment provided for the two children to “remain under shared custody\n\nof both parents.” It further “require[d] both parents’ consent [to relocate the\n\n 2\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 3 of 17\n\n\nchildren] if the new place of residence is located abroad or if relocation has some\n\nimpact on the exercise of parental custody or visitation rights of either parent.”\n\nNonetheless, section 3.2.a) of the Divorce Judgment expressly specified that\n\nPfeiffer “does not object to the mother’s taking residence abroad (US or France)\n\nat/after[1] the end of the school term 2016/2017.”\n\n Other parts of the Divorce Judgment also indicated that it anticipated\n\nBachotet would relocate with the children outside of Switzerland. Paragraph\n\n3.2.c)aa provided, “Until [Bachotet] relocates with the children abroad (see section\n\n[3.]2.a[)], last paragraph above), the children’s father is entitled and obliged to\n\nexercise his obligation of care towards the children as follows . . . .” Similarly,\n\nparagraph 3.2.c)bb stated, “As from relocation of [Bachotet] and the children\n\nabroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall\n\nbe effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round\n\ntrip), when the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”\n\n\n\n 1\n Pfeiffer’s translation of the Divorce Judgment—the original version of which was in\nGerman—uses the word “at,” while Bachotet’s translates the word as “after.” The original\nGerman version states, in relevant part, “Der Vater erklart sich damit einverstanden, dass die\nMutter den Wohneitz der Kinder nach Ende des laufenden Schuljahres 2016/2017 ins Ausland\nveriegt (in die USA oder nach Frankreich).” Pfeiffer’s proposed translation does not indicate its\nsource. Bachotet’s translation indicates that it is a “certified translation of a document in the\nGerman language” by Hazel Schauss, “[c]ertified and [s]worn Public Translator.” Nonetheless,\nour analysis does not depend on whether the correct translation is “at” or “after,” so we do not\nchoose between the two versions.\n 3\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 4 of 17\n\n\n Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer\n\nparenting time with the children every other weekend, with additional time for\n\nholidays and during the summer. In 2018, the guardian appointed to oversee the\n\ncustodial arrangement between the parties modified the parents’ custodial\n\nagreement so that Pfeiffer and Bachotet had equal time with the children. But\n\nwhile she entered a new parenting plan, under Swiss law, she lacked the authority\n\nto modify the Divorce Judgment. Therefore, the Divorce Judgment remained\n\nunchanged.\n\n Meanwhile, according to Bachotet’s counsel’s undisputed proffer, on June\n\n28, 2017, at the end of the children’s 2016-17 school term, Bachotet began the\n\nrelocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for\n\nthe children to emigrate from Switzerland to the United States. Bachotet first\n\nreceived notice that the United States had authorized the Visas on May 17, 2018.\n\nUnder the terms of the Visas, they were valid until July 6, 2018.\n\n On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In\n\nthat letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation\n\nwith [the] children . . . abroad, in the US or in France, as expressed in the [Divorce\n\nJudgment] in 2017.” That same afternoon, Bachotet booked plane tickets for\n\nherself and her children to the United States for June 17, 2018.\n\n\n\n\n 4\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 5 of 17\n\n\n On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which\n\nhad jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he\n\n“revoke[d] [his] consent to the relocation of [the] children . . . to the United States\n\nof America.” He requested that the court “immediately impose a travel ban . . .\n\nwithout consultation with . . . Bachotet, in order to keep her from leaving\n\n[Switzerland] with the children.” The record contains no subsequent order from\n\nthe Swiss court acting on Pfeiffer’s request.\n\n On about June 17, 2018, Bachotet left Switzerland with the children for the\n\nUnited States. The three currently reside in Marietta, Georgia, with Bachotet’s\n\nAmerican fiancé.\n\n A month after Bachotet left Switzerland with the children, on July 17, 2018,\n\nPfeiffer filed this litigation seeking return of the children to Switzerland under the\n\nHague Convention. The district court held a hearing on the merits of Pfeiffer’s\n\npetition on August 24, 2018. Following the hearing, on August 29, 2018, the\n\ndistrict court issued an order denying Pfeiffer’s petition. The court reasoned that\n\nPfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the\n\nchildren from Switzerland violated Pfeiffer’s rights of custody, in light of the\n\nDivorce Judgment’s provision awarding Bachotet “the exclusive right to determine\n\nwhether the children would remain in Switzerland or move to the United States or\n\nFrance at the end of the 2016/2017 school year.” Doc. 31 at 7-8.\n\n 5\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 6 of 17\n\n\n Pfeiffer now appeals.\n\n II.\n\n Whether the Convention requires the return of the children to Switzerland or\n\ntheir continued residence in the United States presents a mixed question of law and\n\nfact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the\n\ndistrict court’s findings of fact for clear error and review de novo its legal\n\ndeterminations and application of the law to the facts. Id.\n\n This matter also raises questions of foreign law, in addition to issues of\n\ntreaty interpretation and of construction of United States law. Rule 44.1, Fed. R.\n\nCiv. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1;\n\nOzaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013). Rule 44.1 provides,\n\n A party who intends to raise an issue about a foreign\n country’s law must give notice by a pleading or other\n writing. In determining foreign law, the court may\n consider any relevant material or source, including\n testimony, whether or not submitted by a party or\n admissible under the Federal Rules of Evidence. The\n court’s determination must be treated as a ruling on a\n question of law.\n\nFed. R. Civ. P. 44.1. We follow the dictates of Rule 44.1.\n\n III.\n\n Among other functions, the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction “establishes legal rights and procedures for the\n\nprompt return of children who have been wrongfully removed or retained.” 22\n 6\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 7 of 17\n\n\nU.S.C. § 9001(a)(4). The United States ratified the Convention, and Congress\n\nimplemented it through the International Child Abduction Remedies Act\n\n(“ICARA”), Lozano v. Montoya Alvarez, 572 U.S. 1, 6 (2014), now codified at 22\n\nU.S.C. §§ 9001 et seq. Notably, under the Convention and ICARA, courts are\n\nempowered “to determine only rights under the Convention and not the merits of\n\nany underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th\n\nCir. 2008) (quoting 22 U.S.C. § 9001(b)(4)).\n\n In particular, ICARA requires that “[c]hildren who are wrongfully removed\n\n. . . be promptly returned unless one of the narrow exceptions set forth in the\n\nConvention applies.” 22 U.S.C. § 9001(a)(4). The removal or retention of a child\n\nin a state that is a signatory to the Convention is wrongful if\n\n a) it is in breach of rights of custody attributed to a\n person . . . under the law of the State in which the child\n was habitually resident immediately before the removal\n or retention; and\n\n b) at the time of removal or retention those rights were\n actually exercised . . . or would have been exercised but\n for the removal or retention.\n\nConvention art. 3. See also Ruiz, 392 F.3d at 1251.\n\n The party seeking the child’s return must establish by a preponderance of the\n\nevidence that the child was wrongfully removed or retained. Calixto v. Lesmes,\n\nNo. 17-15364, ___ F.3d ___, 2018 WL 6257410, *2 (11th Cir. Nov. 30, 2018)\n\n(citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013) and 22 U.S.C. §\n 7\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 8 of 17\n\n\n9003(e)(1)(A)). As relevant here, satisfying that burden requires the petitioner to\n\nshow that (1) the child was a habitual resident of another country at the time she\n\nwas removed to the United States; (2) the removal breached the petitioner’s\n\ncustody rights under the law of that other country; and (3) the petitioner was, in\n\nfact, exercising those custody rights when the child was removed. Id. (citations\n\nomitted).\n\n Here, as we explain below, Pfeiffer has established that the children’s\n\nhabitual residence at the time of removal was Switzerland. But the district court\n\nnonetheless correctly denied Pfeiffer’s petition because Pfeiffer has not\n\ndemonstrated that Bachotet’s removal of the children violated his custody rights\n\nunder Swiss law.\n\nA. The children’s habitual residence at the time of removal was Switzerland.\n\n We begin with the children’s habitual residence on June 17, 2018, the day\n\nBachotet removed them from Switzerland. Neither the Hague Convention nor\n\nICARA defines the term “habitual residency.” Id. So we construe the term’s\n\n“ordinary meaning as understood in the public law of nations.” Santovincenzo v.\n\nEgan, 284 U.S. 30, 40 (1931) (citation and internal quotation marks omitted). The\n\nHigh Court of Justice in the United Kingdom has noted that a habitual residence is\n\nestablished when “the purpose of living where one does has a sufficient degree of\n\ncontinuity to be properly described as settled.” In re Bates, No. CA 122.89 at 9-\n\n 8\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 9 of 17\n\n\n10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom\n\n(1989).\n\n In identifying when a child’s habitual residence has been changed, we have\n\noffered further insight into the meaning of “habitual residency.” We have set forth\n\ntwo requirements to alter a child’s habitual residence: (1) the parents must share a\n\n“settled intention” to leave the old habitual residence behind; and (2) an “actual\n\nchange in geography and the passage of a sufficient length of time for the child to\n\nhave become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be\n\npresent to change a child’s habitual residence.\n\n We conclude, based on the second requirement, that the children’s habitual\n\nresidence had not changed as of the date of the challenged removal. Therefore, we\n\nneed not consider the first requirement regarding the parents’ shared intention.\n\nHere, as of the time of the challenged removal, June 17, 2018, the children—then\n\nseven and nine years old—had lived continuously in Switzerland for six years.\n\nNothing in the record indicates that they had ever lived in—or even spent\n\nsignificant time in—the United States as of that date. Nor does the record suggest\n\nor do the parties argue that any other country could have served as the children’s\n\nhabitual residence as of June 17, 2018. And since acclimatization cannot take\n\nplace without the parties’ physical presence in a new country, the children’s\n\nhabitual residence as of the date of removal was Switzerland.\n\n 9\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 10 of 17\n\n\nB. Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s\ncustody rights under Swiss law.\n\n The Convention defines the terms “rights of custody” and “rights of access”\n\nas follows:\n\n Article 5: For the purposes of this Convention—\n\n a: “rights of custody” shall include rights relating to the\n care of the person of the child and, in particular, the right\n to determine the child’s place of residence;\n\n b: “rights of access” shall include the right to take a\n child for a limited period of time to a place other than the\n child’s habitual residence.\n\nConvention, art. 5. Perhaps a simpler way of describing “rights of access” is as\n\nmere “visitation rights.” See 22 U.S.C. § 9002(7). Rights of custody, on the other\n\nhand, are broader rights; as we have noted above and as Article 5(a) states, those\n\nrights include “rights relating to the care of the person of the child and, in\n\nparticular, the right to determine the child’s place of residence.” Convention art.\n\n5(a) (emphasis added). In resolving this petition for return of the children, we\n\nmust employ these definitions, as opposed to those of local law, common law, or\n\nany other source, since doing so “ensures international consistency in interpreting\n\nthe Convention.” Abbott v. Abbott, 560 U.S. 1, 12 (2010).\n\n We ascertain “the substance of parental rights” in any given case by\n\nconsulting the law of the country “in which the child was habitually resident\n\nimmediately before the removal[,] . . . or . . . a judicial or administrative decision,\n 10\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 11 of 17\n\n\nor . . . an agreement having legal effect under the law of that [country].” Ozaltin,\n\n708 F.3d at 367; Convention art. 3. But we evaluate whether those rights qualify\n\nas “rights of custody” under the Convention’s definition of the term. Ozaltin, 708\n\nF.3d at 367.\n\n Since the Convention treats rights of custody and rights of access differently,\n\nit is important to distinguish between the two. See id. at 13. When a removal or\n\nretention violates a petitioner’s rights of custody, the Convention authorizes the\n\nreturn of the child. See Convention art. 1. But it does not do so for a breach of\n\nrights of access. Abbott, 561 U.S. at 9. Rather, the Convention “requires\n\ncontracting states ‘to promote the peaceful enjoyment of access rights.’” Id. at 13\n\n(quoting Convention art. 21).\n\n With these considerations in mind, we explore the substance of parental\n\nrights under Swiss law. Article 133 of the Swiss Civil Code, Code Civil [CC]\n\n[Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts\n\nwith the authority to “regulate[] parental rights and obligations in accordance with\n\nthe provisions on the legal effects of the parent-child relationship. . . . In particular\n\nit [has the power to] regulate[]: . . . residence . . . .” Under Swiss law, in cases like\n\nthis one, where the parents enjoy joint parental responsibility, either the consent of\n\nthe other parent or “a decision of the court or the child protection authority” is\n\nnecessary before one parent may establish a new place of residence outside\n\n 11\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 12 of 17\n\n\nSwitzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10,\n\n1907, SR 210, RS 210, as amended, art. 301a. 2\n\n Here, the Divorce Judgment constituted a decision of the Swiss court. And\n\nthough Swiss law generally provides parents with a ne exeat right as it pertains to\n\nremoval of a child from Switzerland, 3 see Swiss Civil Code, Art. 301a, the Divorce\n\nJudgment here expressly empowered Bachotet to relocate with the children to\n\neither the United States or France “at [or possibly after] the end of the school term\n\n2016/2017.” Section 3.2.a); see also Section 3.2.c)aa (“Until [Bachotet] relocates\n\nwith the children abroad (see section [3.]2.a[)] . . . the children’s father is entitled\n\nand obliged to exercise his obligation of care towards the children as follows . . .\n\n.”) (emphasis added); Section 3.2.c)bb (“As from relocation of [Bachotet] and the\n\nchildren abroad (see section [3.]2.a[)] . . . the following visitation regime shall be\n\neffective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip),\n\nwhen the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”) (emphasis added). So by Swiss law, under the Divorce\n\nJudgment, Bachotet had the sole rights of custody as they pertained to determining\n\nwhether to move the children to the United States.\n\n\n\n\n 2\n English translations of these portions of the Swiss Civil Code are available at\nhttps://www.admin.ch/opc/en/classified-compilation/19070042/index.html.\n 3\n A ne exeat right is “the authority to consent before the other parent may take the child to\nanother country.” Abbott, 560 U.S. at 5.\n 12\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 13 of 17\n\n\n Pfeiffer does not contest this analysis, but he nonetheless asserts that events\n\ntranspiring after the court entered the Divorce Judgment revoked Bachotet’s\n\nauthority to remove the children from Switzerland. In support of this claim,\n\nPfeiffer urges three theories.\n\n First, Pfeiffer argues that Bachotet’s authority to remove the children was\n\ntime-dependent and automatically expired when Bachotet failed to move them to\n\nthe United States in June 2017. But even assuming that the Divorce Judgment is\n\ntechnically translated to mean “at the end of the 2016/2017 school term” rather\n\nthan “after the end of the 2016/2017 school term,” as Pfeiffer asserts, the record\n\nshows that Bachotet began taking steps immediately at the end of the 2016/2017\n\nschool term to move the children to the United States. It further indicates that\n\nBachotet began the relocation process the same month that the children’s\n\n2016/2017 school term ended—June 2017. And it reflects that Bachotet did not\n\nreceive notice that the children’s visas for relocation to the United States had been\n\napproved until May 17, 2018. Bachotet then promptly obtained plane tickets and\n\nmoved the children within a month of notification. Under these circumstances, we\n\ncannot conclude that Bachotet did not take steps to remove the children as soon as\n\npossible after the end of the 2016/2017 school term.\n\n Second, Pfeiffer contends that, following the court’s entry of the Divorce\n\nJudgment, he reestablished his rights of custody to determine the children’s place\n\n 13\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 14 of 17\n\n\nof residence. Pfeiffer bases this claim on the modification to the custodial\n\nagreement that the guardian reached and the parents agreed to. But Pfeiffer has not\n\nshowed that the guardian’s modification of the custodial agreement cognizably\n\nrevoked the court’s order authorizing Bachotet to remove the children to the\n\nUnited States at the end of the 2016/2017 school term.\n\n Pfeiffer has not pointed to legal authority demonstrating that the guardian’s\n\namendment of the custodial agreement modified the Swiss Court’s Divorce\n\nJudgment. On the contrary, an August 21, 2018, letter from Pfeiffer’s Swiss\n\nattorney, which Pfeiffer filed with the district court, indicates his attorney’s view\n\nthat, at the time that the guardian modified the custodial agreement, only the Swiss\n\ncourt had the authority to legally amend the Divorce Judgment in accordance with\n\nthe changes to the custodial agreement.\n\n Nor has Pfeiffer showed that the Swiss court ever amended the Divorce\n\nJudgment to incorporate or otherwise recognize the modified custodial agreement,\n\neven though under Swiss law, the Swiss court retained jurisdiction to amend its\n\norders regarding custody. In fact, Pfeiffer’s June 15, 2018, letter to the Swiss court\n\nthat issued the Divorce Judgment suggests that Pfeiffer was aware of this problem.\n\nIn that letter, Pfeiffer requested amendment of the Divorce Judgment so that\n\nBachotet no longer had the sole rights of custody to determine whether to move the\n\nchildren to the United States. But Pfeiffer has not supplied the Court with any\n\n 14\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 15 of 17\n\n\nindication that the Swiss court ever granted his request and modified the Divorce\n\nJudgment as he asked. So the modified custodial agreement is not cognizable as “a\n\ndecision of the court or the child protection authority.” Code Civil [CC] [Civil\n\nCode] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. And as a result, it\n\ndoes not rise to the level of a “judicial or administrative decision” under the\n\nConvention and cannot amend the Divorce Judgment, which governs the\n\nsubstantive parental rights here.\n\n Finally, Pfeiffer argues that we should decide this case in line with the Third\n\nCircuit’s decision in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006).4 But\n\nwe find Karkkainen to be materially distinguishable.\n\n There, the parents entered into a Stipulation in Custody that provided that\n\nthe mother “shall have primary physical custody of [the child], including the right\n\nof the child’s residence in Finland . . . .” Id. at 285. Though the Stipulation was\n\nsigned by a common pleas judge, it was never actually filed with the court. Thus,\n\nthe Third Circuit described it as “an informal custody agreement . . . , not a binding\n\ncourt order.” Id. at 293. The court also concluded that the parents’ shared\n\nintention concerning where the child would live changed after the parties entered\n\ninto the Stipulation but before the child was retained in the United States. Id. And\n\n 4\n Pfeiffer actually raises this argument under the intent aspect of the habitual-residence\ninquiry, not under the “rights of custody” analysis. We did not reach the intent issue under the\nhabitual-residence inquiry and as Pfeiffer has argued Karkkainen, he seems to suggest possible\nimplications for the “rights of custody” analysis as well, so we evaluate it here.\n 15\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 16 of 17\n\n\nsince the parents’ shared intention about the child’s habitual residence must be\n\nascertained as of the time of removal or retention, the court concluded, the\n\nStipulation “was no longer binding.” Id. Pfeiffer contends that Karkkainen\n\ndemonstrates that “an agreement by parents to allow for the relocation of the\n\nchildren can be amended informally by their actions.”\n\n The problem for Pfeiffer, though, is that Karkkainen concerns divining the\n\nparents’ shared intent for the child’s habitual residence—an issue of fact. But the\n\ninquiry into who possesses the right to determine the child’s place of residence is a\n\nquestion of law—or, at the very least, a mixed question of fact and law. And a\n\nparent’s formal expression of a change in her or his desire about a child’s place of\n\nresidence cannot, in and of itself, legally somehow modify a court order. For this\n\nreason, on this record, we do not find Karkkainen instructive on the question of\n\nascertaining which parent or parents enjoy the right to determine the child’s place\n\nof residence.\n\n In short, under the Divorce Agreement, Pfeiffer does not enjoy a ne exeat\n\nright as it pertains to Bachotet’s authority to move the children from Switzerland to\n\nthe United States. And since the Divorce Agreement is a court order that has not\n\nbeen modified, it constitutes Swiss law for purposes of ascertaining the parties’\n\nrights of custody to determine the children’s place of residence. We are therefore\n\nbound to apply its terms and affirm the district court’s conclusion that Pfeiffer has\n\n 16\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 17 of 17\n\n\nnot satisfied his burden to establish a prima facie case of wrongful removal under\n\nthe Hague Convention.\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court\n\ndenying Pfeiffer’s petition for return of the children to Switzerland under the\n\nHague Convention.\n\n AFFIRMED.\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358839/", "author_raw": "PER CURIAM"}]}	TJOFLAT	PRYOR	ROSENBAUM	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4581586/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-13918\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 1:18-cv-03446-RWS\n\n\n\n\nMARCELLINUS PFEIFFER,\n\n Petitioner-Appellant,\n\nversus\n\nRACHEL BACHOTET,\n\n Respondent- Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n ________________________\n\n (January 15, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.\n\nPER CURIAM:\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 2 of 17\n\n\n This case arises under the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.\n\n89, also publ’d at https://www.hcch.net/en/instruments/conventions/full-\n\ntext/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer,\n\na German citizen, seeks the return of his children N.A.R. and R.H.E. from the\n\nUnited States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French\n\ncitizen who moved with the children from Switzerland to Georgia in June 2018,\n\nopposes the children’s return. Following briefing and two hearings, the district\n\ncourt denied Pfeiffer’s petition. After careful consideration, we now affirm the\n\ndistrict court’s decision for the reasons we explain below.\n\n I.\n\n Pfeiffer and Bachotet were married in France in 2010. Two years later, in\n\n2012, they moved to Switzerland. Pfeiffer and Bachotet have two children:\n\nN.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June\n\n17, 2018, both children had lived continuously in Switzerland since 2012.\n\n In June 2017, Pfeiffer and Bachotet obtained a divorce when the District\n\nCourt of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and\n\nDecree of Divorce (the “Divorce Judgment”). Among other provisions, this\n\nDivorce Judgment provided for the two children to “remain under shared custody\n\nof both parents.” It further “require[d] both parents’ consent [to relocate the\n\n 2\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 3 of 17\n\n\nchildren] if the new place of residence is located abroad or if relocation has some\n\nimpact on the exercise of parental custody or visitation rights of either parent.”\n\nNonetheless, section 3.2.a) of the Divorce Judgment expressly specified that\n\nPfeiffer “does not object to the mother’s taking residence abroad (US or France)\n\nat/after[1] the end of the school term 2016/2017.”\n\n Other parts of the Divorce Judgment also indicated that it anticipated\n\nBachotet would relocate with the children outside of Switzerland. Paragraph\n\n3.2.c)aa provided, “Until [Bachotet] relocates with the children abroad (see section\n\n[3.]2.a[)], last paragraph above), the children’s father is entitled and obliged to\n\nexercise his obligation of care towards the children as follows . . . .” Similarly,\n\nparagraph 3.2.c)bb stated, “As from relocation of [Bachotet] and the children\n\nabroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall\n\nbe effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round\n\ntrip), when the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”\n\n\n\n 1\n Pfeiffer’s translation of the Divorce Judgment—the original version of which was in\nGerman—uses the word “at,” while Bachotet’s translates the word as “after.” The original\nGerman version states, in relevant part, “Der Vater erklart sich damit einverstanden, dass die\nMutter den Wohneitz der Kinder nach Ende des laufenden Schuljahres 2016/2017 ins Ausland\nveriegt (in die USA oder nach Frankreich).” Pfeiffer’s proposed translation does not indicate its\nsource. Bachotet’s translation indicates that it is a “certified translation of a document in the\nGerman language” by Hazel Schauss, “[c]ertified and [s]worn Public Translator.” Nonetheless,\nour analysis does not depend on whether the correct translation is “at” or “after,” so we do not\nchoose between the two versions.\n 3\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 4 of 17\n\n\n Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer\n\nparenting time with the children every other weekend, with additional time for\n\nholidays and during the summer. In 2018, the guardian appointed to oversee the\n\ncustodial arrangement between the parties modified the parents’ custodial\n\nagreement so that Pfeiffer and Bachotet had equal time with the children. But\n\nwhile she entered a new parenting plan, under Swiss law, she lacked the authority\n\nto modify the Divorce Judgment. Therefore, the Divorce Judgment remained\n\nunchanged.\n\n Meanwhile, according to Bachotet’s counsel’s undisputed proffer, on June\n\n28, 2017, at the end of the children’s 2016-17 school term, Bachotet began the\n\nrelocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for\n\nthe children to emigrate from Switzerland to the United States. Bachotet first\n\nreceived notice that the United States had authorized the Visas on May 17, 2018.\n\nUnder the terms of the Visas, they were valid until July 6, 2018.\n\n On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In\n\nthat letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation\n\nwith [the] children . . . abroad, in the US or in France, as expressed in the [Divorce\n\nJudgment] in 2017.” That same afternoon, Bachotet booked plane tickets for\n\nherself and her children to the United States for June 17, 2018.\n\n\n\n\n 4\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 5 of 17\n\n\n On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which\n\nhad jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he\n\n“revoke[d] [his] consent to the relocation of [the] children . . . to the United States\n\nof America.” He requested that the court “immediately impose a travel ban . . .\n\nwithout consultation with . . . Bachotet, in order to keep her from leaving\n\n[Switzerland] with the children.” The record contains no subsequent order from\n\nthe Swiss court acting on Pfeiffer’s request.\n\n On about June 17, 2018, Bachotet left Switzerland with the children for the\n\nUnited States. The three currently reside in Marietta, Georgia, with Bachotet’s\n\nAmerican fiancé.\n\n A month after Bachotet left Switzerland with the children, on July 17, 2018,\n\nPfeiffer filed this litigation seeking return of the children to Switzerland under the\n\nHague Convention. The district court held a hearing on the merits of Pfeiffer’s\n\npetition on August 24, 2018. Following the hearing, on August 29, 2018, the\n\ndistrict court issued an order denying Pfeiffer’s petition. The court reasoned that\n\nPfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the\n\nchildren from Switzerland violated Pfeiffer’s rights of custody, in light of the\n\nDivorce Judgment’s provision awarding Bachotet “the exclusive right to determine\n\nwhether the children would remain in Switzerland or move to the United States or\n\nFrance at the end of the 2016/2017 school year.” Doc. 31 at 7-8.\n\n 5\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 6 of 17\n\n\n Pfeiffer now appeals.\n\n II.\n\n Whether the Convention requires the return of the children to Switzerland or\n\ntheir continued residence in the United States presents a mixed question of law and\n\nfact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the\n\ndistrict court’s findings of fact for clear error and review de novo its legal\n\ndeterminations and application of the law to the facts. Id.\n\n This matter also raises questions of foreign law, in addition to issues of\n\ntreaty interpretation and of construction of United States law. Rule 44.1, Fed. R.\n\nCiv. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1;\n\nOzaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013). Rule 44.1 provides,\n\n A party who intends to raise an issue about a foreign\n country’s law must give notice by a pleading or other\n writing. In determining foreign law, the court may\n consider any relevant material or source, including\n testimony, whether or not submitted by a party or\n admissible under the Federal Rules of Evidence. The\n court’s determination must be treated as a ruling on a\n question of law.\n\nFed. R. Civ. P. 44.1. We follow the dictates of Rule 44.1.\n\n III.\n\n Among other functions, the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction “establishes legal rights and procedures for the\n\nprompt return of children who have been wrongfully removed or retained.” 22\n 6\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 7 of 17\n\n\nU.S.C. § 9001(a)(4). The United States ratified the Convention, and Congress\n\nimplemented it through the International Child Abduction Remedies Act\n\n(“ICARA”), Lozano v. Montoya Alvarez, 572 U.S. 1, 6 (2014), now codified at 22\n\nU.S.C. §§ 9001 et seq. Notably, under the Convention and ICARA, courts are\n\nempowered “to determine only rights under the Convention and not the merits of\n\nany underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th\n\nCir. 2008) (quoting 22 U.S.C. § 9001(b)(4)).\n\n In particular, ICARA requires that “[c]hildren who are wrongfully removed\n\n. . . be promptly returned unless one of the narrow exceptions set forth in the\n\nConvention applies.” 22 U.S.C. § 9001(a)(4). The removal or retention of a child\n\nin a state that is a signatory to the Convention is wrongful if\n\n a) it is in breach of rights of custody attributed to a\n person . . . under the law of the State in which the child\n was habitually resident immediately before the removal\n or retention; and\n\n b) at the time of removal or retention those rights were\n actually exercised . . . or would have been exercised but\n for the removal or retention.\n\nConvention art. 3. See also Ruiz, 392 F.3d at 1251.\n\n The party seeking the child’s return must establish by a preponderance of the\n\nevidence that the child was wrongfully removed or retained. Calixto v. Lesmes,\n\nNo. 17-15364, ___ F.3d ___, 2018 WL 6257410, *2 (11th Cir. Nov. 30, 2018)\n\n(citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013) and 22 U.S.C. §\n 7\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 8 of 17\n\n\n9003(e)(1)(A)). As relevant here, satisfying that burden requires the petitioner to\n\nshow that (1) the child was a habitual resident of another country at the time she\n\nwas removed to the United States; (2) the removal breached the petitioner’s\n\ncustody rights under the law of that other country; and (3) the petitioner was, in\n\nfact, exercising those custody rights when the child was removed. Id. (citations\n\nomitted).\n\n Here, as we explain below, Pfeiffer has established that the children’s\n\nhabitual residence at the time of removal was Switzerland. But the district court\n\nnonetheless correctly denied Pfeiffer’s petition because Pfeiffer has not\n\ndemonstrated that Bachotet’s removal of the children violated his custody rights\n\nunder Swiss law.\n\nA. The children’s habitual residence at the time of removal was Switzerland.\n\n We begin with the children’s habitual residence on June 17, 2018, the day\n\nBachotet removed them from Switzerland. Neither the Hague Convention nor\n\nICARA defines the term “habitual residency.” Id. So we construe the term’s\n\n“ordinary meaning as understood in the public law of nations.” Santovincenzo v.\n\nEgan, 284 U.S. 30, 40 (1931) (citation and internal quotation marks omitted). The\n\nHigh Court of Justice in the United Kingdom has noted that a habitual residence is\n\nestablished when “the purpose of living where one does has a sufficient degree of\n\ncontinuity to be properly described as settled.” In re Bates, No. CA 122.89 at 9-\n\n 8\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 9 of 17\n\n\n10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom\n\n(1989).\n\n In identifying when a child’s habitual residence has been changed, we have\n\noffered further insight into the meaning of “habitual residency.” We have set forth\n\ntwo requirements to alter a child’s habitual residence: (1) the parents must share a\n\n“settled intention” to leave the old habitual residence behind; and (2) an “actual\n\nchange in geography and the passage of a sufficient length of time for the child to\n\nhave become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be\n\npresent to change a child’s habitual residence.\n\n We conclude, based on the second requirement, that the children’s habitual\n\nresidence had not changed as of the date of the challenged removal. Therefore, we\n\nneed not consider the first requirement regarding the parents’ shared intention.\n\nHere, as of the time of the challenged removal, June 17, 2018, the children—then\n\nseven and nine years old—had lived continuously in Switzerland for six years.\n\nNothing in the record indicates that they had ever lived in—or even spent\n\nsignificant time in—the United States as of that date. Nor does the record suggest\n\nor do the parties argue that any other country could have served as the children’s\n\nhabitual residence as of June 17, 2018. And since acclimatization cannot take\n\nplace without the parties’ physical presence in a new country, the children’s\n\nhabitual residence as of the date of removal was Switzerland.\n\n 9\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 10 of 17\n\n\nB. Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s\ncustody rights under Swiss law.\n\n The Convention defines the terms “rights of custody” and “rights of access”\n\nas follows:\n\n Article 5: For the purposes of this Convention—\n\n a: “rights of custody” shall include rights relating to the\n care of the person of the child and, in particular, the right\n to determine the child’s place of residence;\n\n b: “rights of access” shall include the right to take a\n child for a limited period of time to a place other than the\n child’s habitual residence.\n\nConvention, art. 5. Perhaps a simpler way of describing “rights of access” is as\n\nmere “visitation rights.” See 22 U.S.C. § 9002(7). Rights of custody, on the other\n\nhand, are broader rights; as we have noted above and as Article 5(a) states, those\n\nrights include “rights relating to the care of the person of the child and, in\n\nparticular, the right to determine the child’s place of residence.” Convention art.\n\n5(a) (emphasis added). In resolving this petition for return of the children, we\n\nmust employ these definitions, as opposed to those of local law, common law, or\n\nany other source, since doing so “ensures international consistency in interpreting\n\nthe Convention.” Abbott v. Abbott, 560 U.S. 1, 12 (2010).\n\n We ascertain “the substance of parental rights” in any given case by\n\nconsulting the law of the country “in which the child was habitually resident\n\nimmediately before the removal[,] . . . or . . . a judicial or administrative decision,\n 10\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 11 of 17\n\n\nor . . . an agreement having legal effect under the law of that [country].” Ozaltin,\n\n708 F.3d at 367; Convention art. 3. But we evaluate whether those rights qualify\n\nas “rights of custody” under the Convention’s definition of the term. Ozaltin, 708\n\nF.3d at 367.\n\n Since the Convention treats rights of custody and rights of access differently,\n\nit is important to distinguish between the two. See id. at 13. When a removal or\n\nretention violates a petitioner’s rights of custody, the Convention authorizes the\n\nreturn of the child. See Convention art. 1. But it does not do so for a breach of\n\nrights of access. Abbott, 561 U.S. at 9. Rather, the Convention “requires\n\ncontracting states ‘to promote the peaceful enjoyment of access rights.’” Id. at 13\n\n(quoting Convention art. 21).\n\n With these considerations in mind, we explore the substance of parental\n\nrights under Swiss law. Article 133 of the Swiss Civil Code, Code Civil [CC]\n\n[Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts\n\nwith the authority to “regulate[] parental rights and obligations in accordance with\n\nthe provisions on the legal effects of the parent-child relationship. . . . In particular\n\nit [has the power to] regulate[]: . . . residence . . . .” Under Swiss law, in cases like\n\nthis one, where the parents enjoy joint parental responsibility, either the consent of\n\nthe other parent or “a decision of the court or the child protection authority” is\n\nnecessary before one parent may establish a new place of residence outside\n\n 11\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 12 of 17\n\n\nSwitzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10,\n\n1907, SR 210, RS 210, as amended, art. 301a. 2\n\n Here, the Divorce Judgment constituted a decision of the Swiss court. And\n\nthough Swiss law generally provides parents with a ne exeat right as it pertains to\n\nremoval of a child from Switzerland, 3 see Swiss Civil Code, Art. 301a, the Divorce\n\nJudgment here expressly empowered Bachotet to relocate with the children to\n\neither the United States or France “at [or possibly after] the end of the school term\n\n2016/2017.” Section 3.2.a); see also Section 3.2.c)aa (“Until [Bachotet] relocates\n\nwith the children abroad (see section [3.]2.a[)] . . . the children’s father is entitled\n\nand obliged to exercise his obligation of care towards the children as follows . . .\n\n.”) (emphasis added); Section 3.2.c)bb (“As from relocation of [Bachotet] and the\n\nchildren abroad (see section [3.]2.a[)] . . . the following visitation regime shall be\n\neffective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip),\n\nwhen the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”) (emphasis added). So by Swiss law, under the Divorce\n\nJudgment, Bachotet had the sole rights of custody as they pertained to determining\n\nwhether to move the children to the United States.\n\n\n\n\n 2\n English translations of these portions of the Swiss Civil Code are available at\nhttps://www.admin.ch/opc/en/classified-compilation/19070042/index.html.\n 3\n A ne exeat right is “the authority to consent before the other parent may take the child to\nanother country.” Abbott, 560 U.S. at 5.\n 12\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 13 of 17\n\n\n Pfeiffer does not contest this analysis, but he nonetheless asserts that events\n\ntranspiring after the court entered the Divorce Judgment revoked Bachotet’s\n\nauthority to remove the children from Switzerland. In support of this claim,\n\nPfeiffer urges three theories.\n\n First, Pfeiffer argues that Bachotet’s authority to remove the children was\n\ntime-dependent and automatically expired when Bachotet failed to move them to\n\nthe United States in June 2017. But even assuming that the Divorce Judgment is\n\ntechnically translated to mean “at the end of the 2016/2017 school term” rather\n\nthan “after the end of the 2016/2017 school term,” as Pfeiffer asserts, the record\n\nshows that Bachotet began taking steps immediately at the end of the 2016/2017\n\nschool term to move the children to the United States. It further indicates that\n\nBachotet began the relocation process the same month that the children’s\n\n2016/2017 school term ended—June 2017. And it reflects that Bachotet did not\n\nreceive notice that the children’s visas for relocation to the United States had been\n\napproved until May 17, 2018. Bachotet then promptly obtained plane tickets and\n\nmoved the children within a month of notification. Under these circumstances, we\n\ncannot conclude that Bachotet did not take steps to remove the children as soon as\n\npossible after the end of the 2016/2017 school term.\n\n Second, Pfeiffer contends that, following the court’s entry of the Divorce\n\nJudgment, he reestablished his rights of custody to determine the children’s place\n\n 13\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 14 of 17\n\n\nof residence. Pfeiffer bases this claim on the modification to the custodial\n\nagreement that the guardian reached and the parents agreed to. But Pfeiffer has not\n\nshowed that the guardian’s modification of the custodial agreement cognizably\n\nrevoked the court’s order authorizing Bachotet to remove the children to the\n\nUnited States at the end of the 2016/2017 school term.\n\n Pfeiffer has not pointed to legal authority demonstrating that the guardian’s\n\namendment of the custodial agreement modified the Swiss Court’s Divorce\n\nJudgment. On the contrary, an August 21, 2018, letter from Pfeiffer’s Swiss\n\nattorney, which Pfeiffer filed with the district court, indicates his attorney’s view\n\nthat, at the time that the guardian modified the custodial agreement, only the Swiss\n\ncourt had the authority to legally amend the Divorce Judgment in accordance with\n\nthe changes to the custodial agreement.\n\n Nor has Pfeiffer showed that the Swiss court ever amended the Divorce\n\nJudgment to incorporate or otherwise recognize the modified custodial agreement,\n\neven though under Swiss law, the Swiss court retained jurisdiction to amend its\n\norders regarding custody. In fact, Pfeiffer’s June 15, 2018, letter to the Swiss court\n\nthat issued the Divorce Judgment suggests that Pfeiffer was aware of this problem.\n\nIn that letter, Pfeiffer requested amendment of the Divorce Judgment so that\n\nBachotet no longer had the sole rights of custody to determine whether to move the\n\nchildren to the United States. But Pfeiffer has not supplied the Court with any\n\n 14\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 15 of 17\n\n\nindication that the Swiss court ever granted his request and modified the Divorce\n\nJudgment as he asked. So the modified custodial agreement is not cognizable as “a\n\ndecision of the court or the child protection authority.” Code Civil [CC] [Civil\n\nCode] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. And as a result, it\n\ndoes not rise to the level of a “judicial or administrative decision” under the\n\nConvention and cannot amend the Divorce Judgment, which governs the\n\nsubstantive parental rights here.\n\n Finally, Pfeiffer argues that we should decide this case in line with the Third\n\nCircuit’s decision in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006).4 But\n\nwe find Karkkainen to be materially distinguishable.\n\n There, the parents entered into a Stipulation in Custody that provided that\n\nthe mother “shall have primary physical custody of [the child], including the right\n\nof the child’s residence in Finland . . . .” Id. at 285. Though the Stipulation was\n\nsigned by a common pleas judge, it was never actually filed with the court. Thus,\n\nthe Third Circuit described it as “an informal custody agreement . . . , not a binding\n\ncourt order.” Id. at 293. The court also concluded that the parents’ shared\n\nintention concerning where the child would live changed after the parties entered\n\ninto the Stipulation but before the child was retained in the United States. Id. And\n\n 4\n Pfeiffer actually raises this argument under the intent aspect of the habitual-residence\ninquiry, not under the “rights of custody” analysis. We did not reach the intent issue under the\nhabitual-residence inquiry and as Pfeiffer has argued Karkkainen, he seems to suggest possible\nimplications for the “rights of custody” analysis as well, so we evaluate it here.\n 15\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 16 of 17\n\n\nsince the parents’ shared intention about the child’s habitual residence must be\n\nascertained as of the time of removal or retention, the court concluded, the\n\nStipulation “was no longer binding.” Id. Pfeiffer contends that Karkkainen\n\ndemonstrates that “an agreement by parents to allow for the relocation of the\n\nchildren can be amended informally by their actions.”\n\n The problem for Pfeiffer, though, is that Karkkainen concerns divining the\n\nparents’ shared intent for the child’s habitual residence—an issue of fact. But the\n\ninquiry into who possesses the right to determine the child’s place of residence is a\n\nquestion of law—or, at the very least, a mixed question of fact and law. And a\n\nparent’s formal expression of a change in her or his desire about a child’s place of\n\nresidence cannot, in and of itself, legally somehow modify a court order. For this\n\nreason, on this record, we do not find Karkkainen instructive on the question of\n\nascertaining which parent or parents enjoy the right to determine the child’s place\n\nof residence.\n\n In short, under the Divorce Agreement, Pfeiffer does not enjoy a ne exeat\n\nright as it pertains to Bachotet’s authority to move the children from Switzerland to\n\nthe United States. And since the Divorce Agreement is a court order that has not\n\nbeen modified, it constitutes Swiss law for purposes of ascertaining the parties’\n\nrights of custody to determine the children’s place of residence. We are therefore\n\nbound to apply its terms and affirm the district court’s conclusion that Pfeiffer has\n\n 16\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 17 of 17\n\n\nnot satisfied his burden to establish a prima facie case of wrongful removal under\n\nthe Hague Convention.\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court\n\ndenying Pfeiffer’s petition for return of the children to Switzerland under the\n\nHague Convention.\n\n AFFIRMED.\n\n\n\n\n 17\n[END_CASE]", "role": "user" } ]
4,582,014	UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant.	United States v. Maritime Life Caribbean Limited	2019-01-16	17-10889	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Pryor, Martin, Wood", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10889\n ________________________\n\n D.C. Docket No. 1:05-cr-20859-PCH\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nMARITIME LIFE CARIBBEAN LIMITED,\n\n Interested Party-Appellant,\n\nRAUL J. GUTIERREZ,\n\n Defendant.\n\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (January 16, 2019)\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\n\n\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, \n\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal involves two questions about an ancillary third-party forfeiture\n\nproceeding in which Maritime Life Caribbean asserted that it was given a security\n\ninterest in the forfeited property: whether the district court erred in requiring\n\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\n\ngranted it a security interest in the forfeited property by a preponderance of the\n\nevidence, and whether the district court erred in permitting the Republic of\n\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\n\nno legal interest in the property. We conclude that, although both rulings were in\n\nerror, neither error warrants reversal. We affirm.\n\n I. BACKGROUND\n\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\n\ncharges arising from a bid-rigging scheme involving the construction of an airport\n\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\n\norder of forfeiture against him in the amount of $22,556,100, representing the\n\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\n\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\n\n\n\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\nGeorgia, sitting by designation.\n\n\n 2\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\n\n\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\n\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\n\nencumbrance on the Red Road property.\n\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\n\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\n\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\n\nforfeiture proceeds that might result from the sale of the Red Road property, but it\n\ndid not assert any legal interest in the property itself. The district court expressed\n\nskepticism about the propriety of permitting Trinidad to intervene and\n\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\n\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\n\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\n\ngovernment to “form a committee on the government[/]victim side and decide who\n\nwill be speaking for that group.”\n\n At a later status conference, the government expressed concern over a\n\n“potential conflict” between the parties’ interests and argued that victims like\n\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\n\ndisregarded this concern on the ground that the government was “going to get a lot\n\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\n\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\n\n\n\n 3\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\n\n\nview, Trinidad’s intervention was permissible because it was the party who was\n\n“going to benefit if the government wins on the forfeiture.”\n\n In 2010, the district court instructed the government to issue a Notice of\n\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\n\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\n\nfriends, and both were implicated in the criminal charges underlying the forfeiture\n\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\n\nan interest in the Red Road property under the criminal-forfeiture statute, 21\n\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\n\nalleged collateral assignment that purported to memorialize a transaction in which\n\nGutierrez granted a security interest in the Red Road property to Maritime as\n\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\n\nconstruction company. The alleged assignment is dated July 24, 2001 and was\n\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\n\nCorporation, but it was never recorded.\n\n The government and Trinidad opposed Maritime’s claim. The parties then\n\nengaged in protracted discovery in which Trinidad played a significant role,\n\nleading 14 depositions on behalf of the government. Maritime objected to\n\nTrinidad’s participation in the litigation, but the district court denied its motion.\n\nThe district court acknowledged that Trinidad “does not have a direct claim under\n\n\n\n 4\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\n\n\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\n\nin [its] own rights, but . . . to do the work on behalf of the government.”\n\n After discovery, Trinidad and the government jointly moved for summary\n\njudgment, but the district court denied that motion. Instead, it sua sponte decided\n\nto hold a bifurcated trial with an initial phase focused solely on the question\n\nwhether “to admit the collateral assignment as being genuine and authentic” under\n\nFederal Rule of Evidence 901. The second phase was to address the merits of\n\nMaritime’s interest in the Red Road property. The district court explained that the\n\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\n\nwould obviate the need to resolve the complicated dispute about the legal effect of\n\nan unrecorded assignment of a security interest in real property for which\n\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\n\nMaritime objected on the ground that the authenticity issue should be consolidated\n\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\n\nwould make the “other issues . . . go away.”\n\n At the hearing for the first phase of trial, Maritime presented three witnesses:\n\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\n\nassignment; Frank Norwitch, a certified document examiner who reviewed the\n\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\n\nThe government presented no live witnesses. Alfonso testified that in early 2010,\n\n\n\n 5\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\n\n\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\n\nFerguson, asked her to search for any documents related to the Red Road property.\n\nShe asserted that she discovered the assignment in the files of a deceased Maritime\n\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\n\ntestified that she returned to the storage room to ensure that there were no other\n\ndocuments responsive to the description she was given. Cross-examination by the\n\ngovernment and questioning by the district court made clear that this testimony\n\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\n\nshe did not have “occasion to go back into the storage room and look at the folder\n\nor anything else that was around that document.”\n\n Norwitch testified as an expert after the government stipulated to his\n\nqualifications. He testified that he examined the watermark and the ink used in\n\nboth the typed and handwritten portions of the collateral assignment and concluded\n\nthat there was “no evidence that this document was anything other than what it is\n\npurported to be.” But Norwitch explained that the ink used in the document has\n\nbeen in commercial use for decades and that he could not determine “when [the]\n\ndocument was signed.” And Gutierrez testified that he executed the collateral\n\nassignment on July 24, 2001, after Maritime requested additional collateral. He\n\nadmitted that he failed to list the assignment in his presentence investigation report\n\nand testified that he never thought to record the multi-million-dollar transaction.\n\n\n\n 6\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\n\n\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\n\nthat he had falsified his community-service hours after being released from prison.\n\n After the hearing for the first phase of trial, the district court ruled that\n\nMaritime had failed to carry its burden of proving the authenticity of the collateral\n\nassignment “by the greater weight of the evidence.” The court determined that\n\ncircumstantial evidence and unexplained defects present on the face of the\n\ndocument undermined the inference that the assignment was authentic. It also\n\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\n\nwere not credible, and that virtually no evidence corroborated the authenticity of\n\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\n\ndistrict court concluded that it was unnecessary to proceed to the second phase of\n\ntrial and denied Maritime’s claim.\n\n II. STANDARD OF REVIEW\n\n “We review a district court’s legal conclusions regarding third-party claims\n\nto criminally forfeited property de novo and its factual findings for clear error.”\n\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that although the\n\ndistrict court applied the wrong standard when it assessed the authenticity of the\n\nalleged collateral assignment, the error was harmless. Second, we explain that the\n\n\n\n 7\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\n\n\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\n\nwarrant reversal.\n\n A. The District Court Committed Harmless Error in Ruling that the\n Collateral Assignment Was Inauthentic.\n\n The district court ruled that the “burden of proof” was “on Maritime to prove\n\nby the greater weight of the evidence that the collateral assignment” is “an\n\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\n\nno prejudice.\n\n A two-step process governs the determination of whether a document is\n\nauthentic. The district court must first make a preliminary assessment of\n\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\n\nevidence to make out a prima facie case that the proffered evidence is what it\n\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\n\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\n\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\n\nstep, in which “the evidence may be admitted, and the ultimate question of\n\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\n\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\n\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\n\ndocuments [is] left to the factfinder.”).\n\n\n\n\n 8\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\n\n\n The first phase of the bifurcated trial framework adopted by the district court\n\nwas intended to address only the preliminary question of authenticity. Under the\n\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\n\nestablishing a prima facie case of authenticity at the first stage. Only at the second\n\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\n\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\n\n1985).\n\n By requiring Maritime to prove authenticity by “the greater weight of the\n\nevidence,” the district court compressed the two steps of the inquiry under Rule\n\n901 into one and conflated the issue of authenticity with the issue of entitlement to\n\nthe proceeds of the sale of the Red Road property, but this technical error need not\n\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\n\ntrial error “only where the error has caused substantial prejudice to the affected\n\nparty (or, stated somewhat differently, affected the party's substantial rights or\n\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\n\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\n\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\n\noutcome would have been different” if the district court had ruled that Maritime\n\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\n\n\n\n\n 9\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\n\n\ndetermine whether Maritime had an interest in the Red Road property. United\n\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\n\n Maritime suffered no prejudice. If the district court had followed the process\n\ncontemplated by Rule 901, it would have answered the ultimate question of\n\nauthenticity in the same way; the outcome of the trial would not have differed.\n\n The first phase of the trial featured all of the evidence relevant to the\n\nquestion of authenticity. Maritime was on notice that the district court would apply\n\na preponderance standard in determining whether the assignment was authentic\n\nand had every incentive to produce all relevant evidence. The second phase would\n\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\n\nwould have reached the same answer to the “ultimate question of authenticity”\n\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\n\n The district court was entitled to find that the assignment was not authentic\n\nunder the preponderance standard applicable at the second step of the inquiry\n\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\n\ninauthentic. Maritime never asserted any other potential source of an interest in the\n\nRed Road property, and its trial counsel even conceded that it “only has a claim if\n\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\n\nauthenticity of the collateral assignment.\n\n\n\n\n 10\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\n\n\n The collateral assignment was suspect on its face. It was neither witnessed\n\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\n\nThe document does not so much as mention the legal titleholder of the Red Road\n\nproperty, Inversiones Rapidven, and contains no legal description of the property.\n\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\n\na Maritime director, testified that it was the practice of Maritime to prepare its own\n\nloan documents. The assignment was purportedly created to secure a limited\n\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\n\nThe assignment states that the limited guaranty agreement was attached to it, but\n\nAlfonso testified that nothing was attached to the assignment when she allegedly\n\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\n\nthat anything had ever been attached to the assignment. And the assignment was\n\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\n\n Circumstantial evidence also supported the finding that the assignment was\n\ninauthentic. The limited guaranty agreement makes no mention of the collateral\n\nassignment. And as the district court explained, there was “not a single document”\n\nthat “referenced the collateral assignment . . . before or after” the assignment was\n\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\n\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\n\nauthenticity, such as a letterhead, physical or email address, or method of\n\n\n\n 11\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\n\n\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\n\nfabricated. And finally, Gutierrez listed the Red Road property as an\n\nunencumbered asset in his presentence investigation report and failed to list the\n\ncollateral assignment as a debt.\n\n Based on this evidence, the district court was entitled to infer that there was\n\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\n\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\n\nhave explained, “[a] district court has discretion to determine authenticity, and that\n\ndetermination should not be disturbed on appeal absent a showing that there is no\n\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\n\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\n\non the assignment is genuine, it is entirely possible that he signed shortly before he\n\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\n\nestablished the existence of a close relationship between Gutierrez and the officers\n\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\n\nanticipated that the government would seek forfeiture of his property. We expect\n\nthat a person who knows he is under investigation in a case of complex financial\n\nfraud could have foreseen the impending forfeiture.\n\n\n\n\n 12\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\n\n\n Ample evidence supports the finding by the district court on the ultimate\n\nquestion of authenticity. And that finding controlled whether Maritime had an\n\ninterest in the Red Road property. So no prejudicial error occurred.\n\n B. Trinidad’s Intervention Does Not Merit Reversal.\n\n Maritime also argues, and we agree, that the district court erred in\n\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\n\nproceeding to litigate on behalf of the United States. To represent the United\n\nStates, an attorney must be either a United States Attorney, an assistant United\n\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\n\nprocedures for appointing a United States Attorney for each judicial district); id.\n\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\n\nid. § 543(a) (creating procedures for appointing special attorneys to assist\n\nUnited States Attorneys). And every attorney representing the United States\n\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\n\nassistant United States Attorneys, and specially appointed attorneys to take an\n\noath to faithfully execute their duties). Trinidad was not specially appointed to\n\nlitigate on behalf of the United States and took no oath of office.\n\n Nor did Trinidad have standing to intervene to defend its own interests.\n\nCongress has created one—and only one—means for interested third-parties to\n\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\n\n\n\n 13\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\n\n\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\n\nSection 853(k) of the statute governing criminal forfeitures provides that\n\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\n\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\n\ncriminal case involving the forfeiture of such property under this section.” Id.\n\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\n\nmeans by which a third-party claimant can establish entitlement to return of\n\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\n\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\n\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\n\n§ 853(n).\n\n Although there was no legal basis for Trinidad’s intervention, this error\n\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\n\nbut neither is persuasive.\n\n First, Maritime argues that Trinidad’s participation was prejudicial\n\nbecause the district court relied on deposition testimony elicited by Trinidad in\n\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\n\nthat the district court relied in part on evidence generated by Trinidad to\n\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\n\ncourt stated, its ruling against Maritime did not depend on its rejection of\n\n\n\n 14\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\n\n\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\n\ncredible,” it was “just as likely” that the collateral assignment “could have been\n\nplaced there by anybody, and then she was sent . . . on her merry way to find\n\nthat document.” The district court was entitled to credit this alternative\n\nexplanation of the discovery of the collateral assignment in the light of the\n\nnumerous deficiencies in the document itself and the surrounding circumstantial\n\nevidence that it was not genuine.\n\n The district court also had another, independent ground for discounting\n\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\n\nformer employee and current director of Maritime. She had an obvious\n\nincentive to tailor her testimony to support Maritime’s interests. And regardless\n\nof whether we would have regarded this incentive as sufficient to discredit\n\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\n\ndetermination by the district court is binding on us. As we have explained,\n\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\n\nnot ordinarily review the factfinder’s determination of credibility.” United\n\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\n\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\n\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\n\nbehalf of the United States in an ancillary forfeiture proceeding is structural\n\n\n\n 15\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\n\n\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\n\nCourt concluded that the “appointment of an interested prosecutor” in a\n\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\n\napply to an ancillary proceeding conducted under section 853(n) because such a\n\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\n\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\n\na species of an ‘action at law or equity’—a substitute for separate civil litigation\n\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\n\nCir. 2001), superseded by rule on other grounds as recognized in United States\n\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\n\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\n\nprivate parties representing the United States in civil actions, the validity of\n\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\n\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\n\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\n\nsovereign with no interest of its own to litigate on behalf of the United States,\n\nthis error does not require reversal of the dismissal of Maritime’s claim.\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of the United States.\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4359267/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}]}	PRYOR	MARTIN	WOOD	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4582014/	Published	1	0	0	0	0	2,019	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the Court of Appeals as \"the Court\" and assuming\nthat the lower court is, e.g., a federal district court whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the petitioner as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the single best issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code \| benefiting side \| direction\n----------------\|------------------------------------------------------------\|----------\n1 (Crim. Pro.) \| accused / convicted person / criminal defendant \| 2 (liberal)\n1 (Crim. Pro.) \| prosecution / law enforcement / government \| 1 (conservative)\n2 (Civ. Rts.) \| civil rights or civil liberties claimant \| 2 (liberal)\n2 (Civ. Rts.) \| government defendant / party opposing civil rights claim \| 1 (conservative)\n3 (1st Amend.) \| person asserting First Amendment protections \| 2 (liberal)\n3 (1st Amend.) \| government restricting speech, press, religion, etc. \| 1 (conservative)\n4 (Due Proc.) \| individual challenging deprivation of liberty or property \| 2 (liberal)\n4 (Due Proc.) \| government upholding deprivation \| 1 (conservative)\n5 (Privacy) \| person asserting privacy / autonomy / reproductive choice \| 2 (liberal)\n5 (Privacy) \| government restricting privacy or autonomy \| 1 (conservative)\n7 (Unions) \| union / workers / collective bargaining interests \| 2 (liberal)\n7 (Unions) \| employer / management / anti-union interests \| 1 (conservative)\n8 (Econ. Act.) \| workers, consumers, injured parties, environment, govt \| 2 (liberal)\n \| regulation, or small entities against large business \|\n8 (Econ. Act.) \| employers, large business, property owners, deregulation \| 1 (conservative)\n9 (Jud. Power) \| broader court access / standing / review \| 2 (liberal)\n9 (Jud. Power) \| narrower court access / standing / review \| 1 (conservative)\n10 (Federalism) \| federal authority over state authority \| 2 (liberal)\n10 (Federalism) \| state sovereignty over federal power \| 1 (conservative)\n12 (Fed. Tax.) \| United States / IRS / federal taxing authority \| 2 (liberal)\n12 (Fed. Tax.) \| taxpayer \| 1 (conservative)\n11,14 \| use 3 (unspecifiable) unless decision clearly aligns \| 3 (unspecifiable)\n \| with one of the patterns above \|\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe lower court's outcome. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly leaves the lower court judgment in place (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly undoes the lower court judgment (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n", "role": "system" }, { "content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10889\n ________________________\n\n D.C. Docket No. 1:05-cr-20859-PCH\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nMARITIME LIFE CARIBBEAN LIMITED,\n\n Interested Party-Appellant,\n\nRAUL J. GUTIERREZ,\n\n Defendant.\n\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (January 16, 2019)\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\n\n\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, \n\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal involves two questions about an ancillary third-party forfeiture\n\nproceeding in which Maritime Life Caribbean asserted that it was given a security\n\ninterest in the forfeited property: whether the district court erred in requiring\n\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\n\ngranted it a security interest in the forfeited property by a preponderance of the\n\nevidence, and whether the district court erred in permitting the Republic of\n\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\n\nno legal interest in the property. We conclude that, although both rulings were in\n\nerror, neither error warrants reversal. We affirm.\n\n I. BACKGROUND\n\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\n\ncharges arising from a bid-rigging scheme involving the construction of an airport\n\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\n\norder of forfeiture against him in the amount of $22,556,100, representing the\n\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\n\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\n\n\n\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\nGeorgia, sitting by designation.\n\n\n 2\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\n\n\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\n\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\n\nencumbrance on the Red Road property.\n\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\n\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\n\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\n\nforfeiture proceeds that might result from the sale of the Red Road property, but it\n\ndid not assert any legal interest in the property itself. The district court expressed\n\nskepticism about the propriety of permitting Trinidad to intervene and\n\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\n\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\n\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\n\ngovernment to “form a committee on the government[/]victim side and decide who\n\nwill be speaking for that group.”\n\n At a later status conference, the government expressed concern over a\n\n“potential conflict” between the parties’ interests and argued that victims like\n\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\n\ndisregarded this concern on the ground that the government was “going to get a lot\n\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\n\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\n\n\n\n 3\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\n\n\nview, Trinidad’s intervention was permissible because it was the party who was\n\n“going to benefit if the government wins on the forfeiture.”\n\n In 2010, the district court instructed the government to issue a Notice of\n\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\n\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\n\nfriends, and both were implicated in the criminal charges underlying the forfeiture\n\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\n\nan interest in the Red Road property under the criminal-forfeiture statute, 21\n\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\n\nalleged collateral assignment that purported to memorialize a transaction in which\n\nGutierrez granted a security interest in the Red Road property to Maritime as\n\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\n\nconstruction company. The alleged assignment is dated July 24, 2001 and was\n\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\n\nCorporation, but it was never recorded.\n\n The government and Trinidad opposed Maritime’s claim. The parties then\n\nengaged in protracted discovery in which Trinidad played a significant role,\n\nleading 14 depositions on behalf of the government. Maritime objected to\n\nTrinidad’s participation in the litigation, but the district court denied its motion.\n\nThe district court acknowledged that Trinidad “does not have a direct claim under\n\n\n\n 4\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\n\n\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\n\nin [its] own rights, but . . . to do the work on behalf of the government.”\n\n After discovery, Trinidad and the government jointly moved for summary\n\njudgment, but the district court denied that motion. Instead, it sua sponte decided\n\nto hold a bifurcated trial with an initial phase focused solely on the question\n\nwhether “to admit the collateral assignment as being genuine and authentic” under\n\nFederal Rule of Evidence 901. The second phase was to address the merits of\n\nMaritime’s interest in the Red Road property. The district court explained that the\n\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\n\nwould obviate the need to resolve the complicated dispute about the legal effect of\n\nan unrecorded assignment of a security interest in real property for which\n\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\n\nMaritime objected on the ground that the authenticity issue should be consolidated\n\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\n\nwould make the “other issues . . . go away.”\n\n At the hearing for the first phase of trial, Maritime presented three witnesses:\n\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\n\nassignment; Frank Norwitch, a certified document examiner who reviewed the\n\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\n\nThe government presented no live witnesses. Alfonso testified that in early 2010,\n\n\n\n 5\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\n\n\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\n\nFerguson, asked her to search for any documents related to the Red Road property.\n\nShe asserted that she discovered the assignment in the files of a deceased Maritime\n\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\n\ntestified that she returned to the storage room to ensure that there were no other\n\ndocuments responsive to the description she was given. Cross-examination by the\n\ngovernment and questioning by the district court made clear that this testimony\n\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\n\nshe did not have “occasion to go back into the storage room and look at the folder\n\nor anything else that was around that document.”\n\n Norwitch testified as an expert after the government stipulated to his\n\nqualifications. He testified that he examined the watermark and the ink used in\n\nboth the typed and handwritten portions of the collateral assignment and concluded\n\nthat there was “no evidence that this document was anything other than what it is\n\npurported to be.” But Norwitch explained that the ink used in the document has\n\nbeen in commercial use for decades and that he could not determine “when [the]\n\ndocument was signed.” And Gutierrez testified that he executed the collateral\n\nassignment on July 24, 2001, after Maritime requested additional collateral. He\n\nadmitted that he failed to list the assignment in his presentence investigation report\n\nand testified that he never thought to record the multi-million-dollar transaction.\n\n\n\n 6\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\n\n\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\n\nthat he had falsified his community-service hours after being released from prison.\n\n After the hearing for the first phase of trial, the district court ruled that\n\nMaritime had failed to carry its burden of proving the authenticity of the collateral\n\nassignment “by the greater weight of the evidence.” The court determined that\n\ncircumstantial evidence and unexplained defects present on the face of the\n\ndocument undermined the inference that the assignment was authentic. It also\n\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\n\nwere not credible, and that virtually no evidence corroborated the authenticity of\n\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\n\ndistrict court concluded that it was unnecessary to proceed to the second phase of\n\ntrial and denied Maritime’s claim.\n\n II. STANDARD OF REVIEW\n\n “We review a district court’s legal conclusions regarding third-party claims\n\nto criminally forfeited property de novo and its factual findings for clear error.”\n\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that although the\n\ndistrict court applied the wrong standard when it assessed the authenticity of the\n\nalleged collateral assignment, the error was harmless. Second, we explain that the\n\n\n\n 7\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\n\n\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\n\nwarrant reversal.\n\n A. The District Court Committed Harmless Error in Ruling that the\n Collateral Assignment Was Inauthentic.\n\n The district court ruled that the “burden of proof” was “on Maritime to prove\n\nby the greater weight of the evidence that the collateral assignment” is “an\n\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\n\nno prejudice.\n\n A two-step process governs the determination of whether a document is\n\nauthentic. The district court must first make a preliminary assessment of\n\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\n\nevidence to make out a prima facie case that the proffered evidence is what it\n\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\n\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\n\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\n\nstep, in which “the evidence may be admitted, and the ultimate question of\n\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\n\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\n\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\n\ndocuments [is] left to the factfinder.”).\n\n\n\n\n 8\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\n\n\n The first phase of the bifurcated trial framework adopted by the district court\n\nwas intended to address only the preliminary question of authenticity. Under the\n\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\n\nestablishing a prima facie case of authenticity at the first stage. Only at the second\n\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\n\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\n\n1985).\n\n By requiring Maritime to prove authenticity by “the greater weight of the\n\nevidence,” the district court compressed the two steps of the inquiry under Rule\n\n901 into one and conflated the issue of authenticity with the issue of entitlement to\n\nthe proceeds of the sale of the Red Road property, but this technical error need not\n\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\n\ntrial error “only where the error has caused substantial prejudice to the affected\n\nparty (or, stated somewhat differently, affected the party's substantial rights or\n\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\n\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\n\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\n\noutcome would have been different” if the district court had ruled that Maritime\n\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\n\n\n\n\n 9\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\n\n\ndetermine whether Maritime had an interest in the Red Road property. United\n\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\n\n Maritime suffered no prejudice. If the district court had followed the process\n\ncontemplated by Rule 901, it would have answered the ultimate question of\n\nauthenticity in the same way; the outcome of the trial would not have differed.\n\n The first phase of the trial featured all of the evidence relevant to the\n\nquestion of authenticity. Maritime was on notice that the district court would apply\n\na preponderance standard in determining whether the assignment was authentic\n\nand had every incentive to produce all relevant evidence. The second phase would\n\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\n\nwould have reached the same answer to the “ultimate question of authenticity”\n\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\n\n The district court was entitled to find that the assignment was not authentic\n\nunder the preponderance standard applicable at the second step of the inquiry\n\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\n\ninauthentic. Maritime never asserted any other potential source of an interest in the\n\nRed Road property, and its trial counsel even conceded that it “only has a claim if\n\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\n\nauthenticity of the collateral assignment.\n\n\n\n\n 10\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\n\n\n The collateral assignment was suspect on its face. It was neither witnessed\n\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\n\nThe document does not so much as mention the legal titleholder of the Red Road\n\nproperty, Inversiones Rapidven, and contains no legal description of the property.\n\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\n\na Maritime director, testified that it was the practice of Maritime to prepare its own\n\nloan documents. The assignment was purportedly created to secure a limited\n\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\n\nThe assignment states that the limited guaranty agreement was attached to it, but\n\nAlfonso testified that nothing was attached to the assignment when she allegedly\n\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\n\nthat anything had ever been attached to the assignment. And the assignment was\n\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\n\n Circumstantial evidence also supported the finding that the assignment was\n\ninauthentic. The limited guaranty agreement makes no mention of the collateral\n\nassignment. And as the district court explained, there was “not a single document”\n\nthat “referenced the collateral assignment . . . before or after” the assignment was\n\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\n\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\n\nauthenticity, such as a letterhead, physical or email address, or method of\n\n\n\n 11\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\n\n\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\n\nfabricated. And finally, Gutierrez listed the Red Road property as an\n\nunencumbered asset in his presentence investigation report and failed to list the\n\ncollateral assignment as a debt.\n\n Based on this evidence, the district court was entitled to infer that there was\n\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\n\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\n\nhave explained, “[a] district court has discretion to determine authenticity, and that\n\ndetermination should not be disturbed on appeal absent a showing that there is no\n\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\n\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\n\non the assignment is genuine, it is entirely possible that he signed shortly before he\n\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\n\nestablished the existence of a close relationship between Gutierrez and the officers\n\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\n\nanticipated that the government would seek forfeiture of his property. We expect\n\nthat a person who knows he is under investigation in a case of complex financial\n\nfraud could have foreseen the impending forfeiture.\n\n\n\n\n 12\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\n\n\n Ample evidence supports the finding by the district court on the ultimate\n\nquestion of authenticity. And that finding controlled whether Maritime had an\n\ninterest in the Red Road property. So no prejudicial error occurred.\n\n B. Trinidad’s Intervention Does Not Merit Reversal.\n\n Maritime also argues, and we agree, that the district court erred in\n\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\n\nproceeding to litigate on behalf of the United States. To represent the United\n\nStates, an attorney must be either a United States Attorney, an assistant United\n\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\n\nprocedures for appointing a United States Attorney for each judicial district); id.\n\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\n\nid. § 543(a) (creating procedures for appointing special attorneys to assist\n\nUnited States Attorneys). And every attorney representing the United States\n\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\n\nassistant United States Attorneys, and specially appointed attorneys to take an\n\noath to faithfully execute their duties). Trinidad was not specially appointed to\n\nlitigate on behalf of the United States and took no oath of office.\n\n Nor did Trinidad have standing to intervene to defend its own interests.\n\nCongress has created one—and only one—means for interested third-parties to\n\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\n\n\n\n 13\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\n\n\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\n\nSection 853(k) of the statute governing criminal forfeitures provides that\n\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\n\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\n\ncriminal case involving the forfeiture of such property under this section.” Id.\n\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\n\nmeans by which a third-party claimant can establish entitlement to return of\n\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\n\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\n\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\n\n§ 853(n).\n\n Although there was no legal basis for Trinidad’s intervention, this error\n\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\n\nbut neither is persuasive.\n\n First, Maritime argues that Trinidad’s participation was prejudicial\n\nbecause the district court relied on deposition testimony elicited by Trinidad in\n\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\n\nthat the district court relied in part on evidence generated by Trinidad to\n\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\n\ncourt stated, its ruling against Maritime did not depend on its rejection of\n\n\n\n 14\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\n\n\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\n\ncredible,” it was “just as likely” that the collateral assignment “could have been\n\nplaced there by anybody, and then she was sent . . . on her merry way to find\n\nthat document.” The district court was entitled to credit this alternative\n\nexplanation of the discovery of the collateral assignment in the light of the\n\nnumerous deficiencies in the document itself and the surrounding circumstantial\n\nevidence that it was not genuine.\n\n The district court also had another, independent ground for discounting\n\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\n\nformer employee and current director of Maritime. She had an obvious\n\nincentive to tailor her testimony to support Maritime’s interests. And regardless\n\nof whether we would have regarded this incentive as sufficient to discredit\n\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\n\ndetermination by the district court is binding on us. As we have explained,\n\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\n\nnot ordinarily review the factfinder’s determination of credibility.” United\n\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\n\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\n\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\n\nbehalf of the United States in an ancillary forfeiture proceeding is structural\n\n\n\n 15\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\n\n\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\n\nCourt concluded that the “appointment of an interested prosecutor” in a\n\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\n\napply to an ancillary proceeding conducted under section 853(n) because such a\n\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\n\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\n\na species of an ‘action at law or equity’—a substitute for separate civil litigation\n\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\n\nCir. 2001), superseded by rule on other grounds as recognized in United States\n\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\n\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\n\nprivate parties representing the United States in civil actions, the validity of\n\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\n\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\n\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\n\nsovereign with no interest of its own to litigate on behalf of the United States,\n\nthis error does not require reversal of the dismissal of Maritime’s claim.\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of the United States.\n\n\n\n\n 16\n[END_CASE]", "role": "user" } ]

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